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BOSTON   AND    NEW   YORK. 


A  TREATISE 


LA"W    OF    MOETGAGES 


REAL  PROPERTY. 


LEONARD  A.  JONES, 

AUTHOR   ALSO   OF   TREATISES   ON    "  RAILROAD   SECXTRITIES,"    "  CHATTEL 


MORTGAGES,      "'LIENS,'    ETC.,    ETC, 


IN  TWO   VOLUMES. 
VOL.  II. 


FIFTH  EDITION. 


BOSTON: 
HOUGHTON,  MIFFLIN  AND  COMPANY. 

NEW  YORK:  11  EAST  SEVENTEENTH  STREET. 

C|)c  EiticreiUt  Press,  CambriUffc. 
1894. 


T 


v.i^ 


Copyright,  1878,  1S79,  1882,  1889,  and  1894, 
By  LEONARD  A.  JONES. 

All  rights  reserved. 


The  Riverside  Presf,  Cambridge  : 
Printed  by  H.  O.  Hougliton  and  Company. 


TABLE  OF  CONTENTS. 


REDEMPTION  AND   FORECLOSURE. 
CHAPTER  XXII. 

REDEMPTIOX   OF   A   MORTGAGE. 


1.  Redemption  a  Necessary  Incident  of  a  Mortgage 1038 

2.  Circumstances  affecting  Redemption     .......       1047 

3.  "When  Redemption  may  be  made 1052 

4.  Who  may  redeem 1055 

5.  The  Sum  payable  to  effect  Redemption    .         .         .         .         .         .         .1070 

6.  Contribution  to  redeem 1089 

7.  Pleadings  and  Practice  on  Bills  to  redeem 1093 

CHAPTER   XXm. 

mortgagee's  account. 

1.  Liability  to  Account .       1114 

2.  What  the  Mortgagee  is  chargeable  with 1121 

3.  Allowances  for  Repairs  and  Improvements    .         .         .         .         .         .1126 

4.  Allowances  for  Compensation    .........  1132 

5.  Allowances  for  Disbursements .1134 

6.  Annual  Rests 1139 

CHAPTER  XXIV. 

WHEN   THE   RIGHT    TO   REDEEM    IS    BARRED. 

1.  The  Statute  of  Limitations  applies  by  Analogy 1144 

2.  When  the  Statute  begins  to  run .1152 

3.  What  prevents  the  Running  of  the  Statute   .         .         .         .         .         .1162 

CHAPTER  XXV. 

■WHEN    THE    RIGHT    TO    ENFORCE   A    MORTGAGE    ACCRUES  .  .1174 

CHAPTER  XXVL 

WHEN    THE   RIGHT   TO   FORECLOSE   IS   BARRED  .  .  .         1192 

iii 

G6V841 


TABLE   OF   CONTENTS. 
CHAPTER   XXVII. 

REMEDIES    FOR    ENFORCING    A   MORTGAGE. 

SECTION 

1.  Are  Concurrent 1215 

2.  Personal  Remedy  before  Foreclosure  .......       1220 

3.  Personal  Remedy  after  Foreclosure 1227 

4.  Sale  of  Mortgaged  Premises  on  Execution  for  Mortgage  Debt     .         .       1229 

5.  Remedy  as  affected  by  Bankruptcy         .         .         .         .         .         .         .  1231 

CHAPTER  XXVIII. 

FORECLOSURE    BY    ENTRY   AND   POSSESSION. 

1.  Nature  of  the  Remedy  .........  1237 

2.  Statutory  Provisions        . 1239 

3.  The  Entry 1246 

4.  The  Possession        ...:.......  1258 

5.  The  Certificate  of  Witnesses 1259 

6.  The  Certificate  of  the  Mortgagor 1261 

7.  When  the  Limitation  commences         .......  1262 

8.  Record  of  the  Certificate 1263 

9.  Effect  of  the  Foreclosure  upon  the  Mortgage  Debt      ....  1264 
10.  Waiver  of  Entry  and  Foreclosure 1265 

CHAPTER  XXIX. 

FORECLOSURE    BY   WRIT    OF    ENTRY. 

1.  Nature  of  and  where  used    .         , 1276 

2.  Who  may  maintain  ..........  1280 

3.  Against  whom  the  Action  may  be  brought 1290 

4.  The  Pleadings  and  Evidence 1292 

5.  The  Defences 1296 

6.  The  Conditional  Judgment 1306 

CHAPTER   XXX. 

STATUTORY   PROVISIONS    RELATING   TO    FORECLOSURE    AND    REDEMP- 
TION     1317 

CHAPTER   XXXI. 

THE    PARTIES    TO    AN    EQUITABLE   SUIT   FOR    FORECLOSURE      .  1367 

PART  I. 

Of  Parties  Plaintiff 1368 

PART  II. 

Of  Parties  Defendant 13  94 

iv 


TABLE   OF   CONTENTS. 
CHAPTER   XXXII. 

FORECLOSURE  BY  EQUITABLE  SUIT. 

SECTIO:^ 

1.  Jurisdiction,  and  the  Object  of  the  Suit        .         .         .         .         .         .       1443 

2.  The  Bill  or  Complaint 1451 

3.  The  Answer  and  Defence 1479 

CHAPTER  XXXIII. 

THE  APPOINTMENT  OF  A  RECEIVER. 

1.  "When  a  Receiver -will  be  appointed •         •   1516 

2.  Duties  and  Powers  of  a  Receiver 1535 

CHAPTER  XXXIV. 

DECREE    OF    STRICT    FORECLOSURE. 

1.  Nature  and  Use  of  this  Remedy •  1538 

2.  In  what  States  it  is  used         .         .         .         .         .         .         .         •         .1542 

3.  Pleadings  and  Practice 1557 

4.  Setting  aside  and  opening  the  Foreclosure  .  .         .         .         .         .1569 

CHAPTER    XXXV. 

DECREE    OF    SALE. 

1.  A  Substitute  for  Foreclosure 1571 

2.  The  Form  and  Requisites  of  the  Decree         .         .         .         •         •         .1574 

3.  The  Conclusiveness  of  the  Decree    .,....••  1587 

4.  The  Amount  of  the  Decree 1590 

5.  Costs 1602 

CHAPTER  XXXVI. 

FORECLOSURE    SALES    UNDER   DECREE    OF    COURT. 

1.  Mode  and  Terms  of  Sale 1608 

2.  Sale  in  Parcels 1616 

3.  Order  of  Sale 1620 

4.  Conduct  of  Sale 1633 

5.  Confirmation  of  Sale    .         .         .         .         .         .  •  •         •         .1637 

6.  Enforcement  of  Sale  against  the  Purchaser       .         .         .         •         •         .1612 

7.  'J"he  Deed,  and  Passing  of  Title 16.)2 

8.  The  Delivery  of  Possession  to  Purchaser 1663 

9.  Setting  aside  of  Sale ^^^^ 

V 


TABLE   OF   CONTENTS. 
CHAPTER   XXXVII. 

APPLICATION   OF    PROCEEDS    OF    SALE. 

SECTION 

1.  Payment  of  the  Mortgage  Debt 1682 

2.  Disposition  of  the  Surphis 1684 

.3.  Priorities  between  Holders  of  several  Notes  secured          ....  1699 
4.  Costs  of  Subsequent  Mortgagees 1 708 

CHAPTER  XXXVIII. 

JUDGMENT   IN    AN    EQUITABLE   SUIT    FOR   A    DEFICIENCY.       .  1709 

CHAPTER  XXXIX. 

STATUTORY   PROVISIONS    RELATING    TO    POWER    OF    SALE    MORTGAGES    AND 

TRUST    DEEDS. 

1.  Introductory      ............  1722 

2.  Statutory  Provisions  in  the  several  States 1723 

CHAPTER   XL. 

POWER    OF    SALE   MORTGAGES    AND    TRUST    DEEDS. 

1.  The  Nature  and  Use  of  Powers  of  Sale 1764 

2.  The  Power  of  Sale  is  a  Cumulative  Remedy       .....  1773 

3.  Construction  of  Power     ..........  1777 

4.  Revocation  or  Suspension  of  the  Power       ......  1792 

5.  When  the  Exercise  of  the  Power  may  be  enjoined  ....  1801 

6.  Personal  Notice  of  Sale 1821 

7.  Publication  of  Notice 1827 

8.  What  the  Notice  should  contain 1839 

9.  Sale  in  Parcels 1857 

10.  Conduct  of  Sale,  Terms,  and  Adjournment 1861 

11.  Who  may  purchase  at  Sale  under  Power         ......  1876 

12.  The  Deed  and  Title 1889 

13.  The  Affidavit 1904 

14.  Setting  aside  and  waiving  Sale    ........       1906 

15.  Costs  and  Expenses 1923 

16.  The  Surplus 1927 

VI 


THE   LAW  OF   MORTGAGES 

or   REAL  PEOPERTY. 

REDEMPTION  AND  FORECLOSURE. 


CHAPTER  XXII. 

REDEMPTION   OF   A  MORTGAGE. 


I.  Redemption  a  necessary  incident  of  a 
mortgage,  1038-1046. 
II.  Circumstances    affecting    redemption, 
1047-1051. 
III.  \Yhen  redemption  may  be  made,  1052- 
1054. 


IV.  Who  may  redeem,  105.5-1069. 
V.  The  sum  payable  to  effect   redemp- 
tion, 1070-1088. 
VI.  Contribution  to  redeem,  1089-1092. 
VII.  Pleadings    and   practice   on    bills   to 
redeem,  1093-1113. 


I.  Redemption  a  Necessary  Incident  of  a  Mortgage. 

1038.  Generally.  —  As  already  observed,^  mortgages  of  land 
were  at  first  estates  upon  condition,  and  the  mortgagor  not  per- 
forming the  condition  upon  the  day  stipulated  lost  his  estate  for- 
ever. The  idea  of  redemption  after  breach  of  the  condition  is  said 
to  have  been  introduced  into  English  jurisprudence  from  the  Roman 
law,  under  which  default  in  the  payment  of  mortgage  debt  at  the 
time  stipulated  did  not  work  a  forfeiture  of  the  property,  but 
the  creditor  thereupon  had  the  authority  to  sell  the  property  and 
reimburse  himself  out  of  the  proceeds.  Redemption  is  purely  a 
creature  of  courts  of  equity. ^  Adopting  the  principle  of  the  civil 
law,  that  a  mortgage  is  merely  a  security  for  the  payment  of  a 
debt,  they  interposed  to  prevent  the  hardship  and  injustice  which 
resulted  at  common  law  from  the  failure  of  the  mortgagor  to  strictly 
comply  with  the  conditions  of  the  mortgage.  Although  the  mort- 
gagor had  forfeited  his  estate  at  law,  courts  of  equity  allowed  him 
to  redeem  his  estate  within  a  reasonable  time,  upon  payment  of  the 
debt  and  all  proper  charges,  and  this  right  was  called  an  equity  of 
redemption. 

1  §§  6-11.  2  Posten  v.  Miller,  00  Wis.  494,  19  N.  W. 

Rep.  540. 
VOL.  II.  1  -^ 


§  1039.]  REDEMPTION   OF   A   MORTGAGE. 

The  owner  of  the  equity  of  redemption,  or  the  party  entitled  to 
redeem,  must  seek  the  mortgagee,  or  the  party  holding  the  lien  on 
the  land,  in  the  forum  where  jurisdiction  in  personam  can  be  ob- 
tained over  such  mortgagee  or  party,  without  reference  to  the  situs 
of  the  land.  The  subject  of  controversy  is  immediately  the  mort- 
gage or  trust  security  fi'om  under  which  the  land  is  sought  to  be 
redeemed.  That  is  personal  property  and  follows  its  owner.^  It  is 
usual,  however,  to  provide  by  statute  that  the  suit  for  redemption 
sliall  be  brought  in  the  county  where  the  land  lies.^ 

1039.  An  express  stipulation  not  to  redeem  does  not  bind 
the  raortgagor.  So  fully  recognized  and  protected  are  the  equi- 
table rights  of  the  mortgagor,  that  he  is  relieved  from  his  own  ex- 
press agreement  that  upon  his  failure  to  pay  the  mortgage  debt  at 
the  time  stipulated  his  estate  shall  be  forfeited,  such  agreement  be- 
ing held  utterly  void  in  equity.^  He  cannot,  by  any  form  of  words, 
give  the  mortgage  the  conditional  character  it  had  in  the  time  of 
Littleton,  and  which  it  still  has  in  law  ;  for  jurisdiction  of  the  sub- 
ject will  always  be  taken  by  a  court  of  chancery,  which,  looking  to 
the  object  of  the  transaction  to  give  security  for  a  debt,  will  always 
relieve  the  mortgagor  from  the  consequences  of  his  failure  to  per- 
form the  condition,^  and  will  protect  him  against  his  own  covenants 
not  to  redeem,  because  his  necessities  as  a  debtor  may  have  forced 
him  into  this  inequitable  agreement.  It  matters  not  how  strongly 
the  parties  may  express  their  agreement  that  there  shall  be  no  re- 
demption ;  the  intent  being  contrary  to  the  rules  of  equity,  it  cannot 
be  carried  into  effect.^ 

The  right  of  redemption  is  the  creature  of  the  law.  It  is  not  in 
terms  expressed  by  the  parties  in  the  mortgage.  But  whatever  be 
the  form  of  the  transaction,  if  intended  as  a  security  for  money, 
it  is  a  mortgage,  and  the  right  of  redemption  attaches  to  it.  Al- 
though a  deed  contain  a  condition  that  it  shall  be  absolute  and  with- 

1  Kanawha  Coal  Co.  v.  Kanawha  &  Ohio  Preschbaker  v.  Feaman,  32  111.  475  ;  Wyn- 
Coal  Co.  7  Blatchf.  391,  per  Blatchford,  J.  koop   v.    Cowing,   21    III.    570;  Cherry   v. 

2  As  in  Massachusetts:  P.  S.  1882,  ch.  Bowen,  4  Sneed,  415;  Baxter  v.  Child,  39 
181,  §  31.  Me.  110;  Henry  v.  Davis,  7  Johns.  Ch.  40; 

3  §  251 ;  2  White  &  Tudor's  Lead.  Cas.  Clark  v.  Henry,  2  Cow.  324 ;  Holridge  v. 
in  Eq.  1042.  In  East  India  Co.  v.  Atkyns,  Gillespie,  2  Johns.  Ch.  30;  Linnell  v.  Ly- 
Comyns,  347,  349,  it  is  said  that  if  a  man  ford,  72  Me.  280,  per  Appleton,  C.  J. ; 
makes  a  mortgage  and  covenants  not  to  Bearss  y.  Ford,  108  111.  16 ;  Fields  y.  Helms, 
bring  a  bill  to  redeem,  nay,  if  he  goes  so  82  Ala.  449,  3  So.  Rep.  106 ;  Parmer  i'. 
far,  as   in  Stisted's  case,  to    take  an  oath  Parmer,  74  Ala.  285. 

that  he  will  not  redeem,  yet  he  shall  re-  *  Jackson  v.  Lynch,  129  111.  72,  22  N.  E. 

deem.     See   2    Story's   Eq.   Juris.  §  1019,  Rep.  246,  21  N.  E.  Rep.  580,  quoting  text. 

and  cases  cited;   Peugh   v.  Davis,   96   U.  ^  Bayley  r.  Bailey,  5  Gray,  503,  510,  per 

S.    332;  Willets   v.  Burgess,  34    111.  494;  Chief  Justice  Shaw. 
2 


REDEMPTION   A   NECESSARY    INCIDENT    OF   A   MORTGAGE.       [§  1040. 

out  redemption  if  a  certain  sura  be  not  paid  by  the  grantor  at  a 
fixed  time,  and  the  condition  is  not  punctually  performed,  there  is 
a  right  of  redemption.^  "At  law,"  says  Lord  Eldon,^  "the  mort- 
gagee is  under  no  obligation  to  reconvey  at  that  particular  day  ; 
and  yet  this  court  says  that,  though  the  money  is  not  paid  at  the 
time  stipulated,  if  paid  with  interest  at  the  time  a  reconveyance  is 
demanded,  there  shall  be  a  reconveyance,  upon  this  ground  :  that 
the  contract  is  in  this  court  considered  a  mere  loan  of  money  se- 
cured by  a  pledge  of  the  estate.  But  that  is  a  doctrine  upon  which 
this  court  acts  against  what  is  the  primd  facie  import  of  the  terms  of 
the  agreement  itself,  which  does  not  import  at  law  that  once  a  mort- 
gage always  a  mortgage  ;  but  equity  says  that ;  and  the  doctrine  of 
this  court  as  to  redemption  does  give  countenance  to  that  strong 
declaration  of  Lord  Thurlow,  that  the  agreement  of  the  parties 
will  not  alter  it ;  for  I  take  it  to  be  so  in  the  case  of  a  mortgage 
that  you  shall  not,  by  special  terms,  alter  what  this  court  says  are 
the  special  terms  of  that  contract." 

1040.  The  time  of  redemption  may,  by  the  terms  of  the 
mortgage,  be  postponed,  for  a  term  of  years,  or  even  during  the 
lifetime  of  the  mortgagor  or  of  any  other  person,  and  this  arrange- 
ment is  generally  for  the  benefit  and  convenience  of  both  parties ; 
the  mortgagor  by  this  means  securing  the  use  of  the  loan  for  a 
fixed  period,  and  the  mortgagee  obtaining  at  the  same  time  a  con- 
tinuing security  and  income  for  his  loan.  If  the  mortgaged  prop- 
erty is  ultimately  and  within  a  reasonable  period  to  be  restored 
to  the  mortgagor,  there  is  no  objection  to  a  mortgage  which  post- 
pones the  payment  and  redemption  for  a  period  of  considerable 
length;  and  it  will  be  enforced  according  to  its  terms.  It  is  only 
in  case  of  an  irredeemable  mortgage,  or  one  which  is  such  in 
effect,  that  courts  of  equity  svill  disregard  its  terms,  and  annex 
to  it  a  right  of  redemption  as  an  indispensable  requisite  of  every 
mortgage. 

How  long  the  right  to  redeem  may  be  postponed  must  depend 
upon  the  circumstances  of  the  case.  It  may  be  postponed  so  long 
by  the  terms  of  the  mortgage  as  to  become  oppressive  to  the  mort- 
gagor, and  thus  give  equitable  ground  for  relief  by  an  earlier  re- 
demption. In  one  case  such  relief  was  given  more  than  twenty- 
five  years  after  the  date  of   the  mortgage,  though    it   had  a  still 

1  Sec  §  241;  Kogan  i-.  Walker,   1   Wis.        ^  !„    c^gton   v.    Slade,   7  Ves.   265,   273. 
527;  Knowlton    v.  Walker,   13    Wis.   264;     See,  also,  numerous  eases  cited  in  note  «  ; 
Orton  V.  Knal),  3  Wis.  576  ;  IMato  v.  Uoe,     Spurgeon  v.  Collier,  1  Eden,  55,  60. 
14  Wis.  453 ;  Jackson  v.  Lynch,  129  111.  72, 
22  N.  K.  llep.  246,  (juoting  text. 

8 


§§  1041,  1042.]    REDEMPTION  OF  A  MORTGAGE. 

longer  period  to  run,  the  estate  having  increased  greatly  in  value, 
and  the  mortgagee  having  entered  and  retained  possession  of  it 
from  the  beginning  ;  ^  and  in  another  case  it  was  afforded  against 
a  mortgage  made  by  the  mortgagor  to  his  solicitor,  and  in  which 
there  was  a  restraint  upon  redemption  for  twenty  years,  with  twelve 
months'  notice  after  that  time.^     These  are  exceptional  cases. 

1041.  An  agreement  to  confine  the  right  of  redemption  to 
the  mortgagor  alone,  or  to  any  specified  persons  or  class  of  per- 
:Sons,  is  a  restraint  which  may  be  only  a  little  less  than  providing 
against  any  exercise  at  all  of  the  right,  and  is  relieved  against 
■upon  the  same  ground.^  It  is  not  every  such  arrangement,  how- 
ever, that  is  open  to  objection.  Where  the  mortgagor  limited  re- 
demption to  his  own  lifetime  for  the  purpose  of  benefiting  the 
mortgagee,  a  near  relative,  by  way  of  settlement,  and  reserved  to 
himself  the  right  to  redeem  at  any  time  during  his  own  life,  the 
mortgage  was  uplield.^  In  like  manner  a  stipuhition  in  the  mort- 
gage limiting  the  time  within  which  redemption  may  be  had  does 
not  affect  the  right  to  redeem. '^ 

1042.  Any  arrangement  which  is  merely  an  evasion  of  the 
equitable  rule  that  every  mortgage  is  redeemable,  or  which  is 
designed  to  enable  the  mortgagee  to  wrest  the  property  from  the 
mortgagor,  is  open  to  the  same  objection;^  as,  for  instance,  an 
agreement  not  upon  any  event  or  condition  to  sue  for  redemption 
or  for  the  discharge  of  the  mortgage ;  or  an  arrangement  by  which 
the  equity  of  redemption  is  conveyed  absolutely  to  the  mortgagee, 
but  without  intending  an  absolute  sale  of  it."     The  court  always 

1  Talbot  V.  Braddill,  1  Vern.  183,  394.  °  Stover  v.  Bounds,  1  Ohio  St.  107. 

2  Cowdry  v.  Day,  1  Gif.  316.  6  Vernon  t'.  Bethell,  2  Edeu,  110;  East 

3  Howard  v.  Harris,  1  Vern.  33;  New-  India  Co.  r.  Atkyus,  1  Comyns,  347,  349; 
comb  V.  Bonliam,  1  Vern.  8;  Freem.  Ch.  Toomes  v.  Conset,  3  Atk.  261.  And  see 
.67;  Spurgeon  v.  Collier,  1  Eden,  55.  Jennings  v.  Ward,  2  Vern.  520;  Willett  v. 

In  Newcomb  y.  Bonhano,  the  Lord  Chan-  Winnell,  1  Vern.  488.    And  see,  also,  2  Eq. 

cellor   said   it   was  a  general  rule,  once  a  Cas.  Abr.  599. 

7nortffafje  altcays  a  tnort(jage,  and  us  the  estate  '  Vernon  u.  Bethell,  2  Eden,  110.  Lord 
was  expressly  redeemable  during  the  mort-  Chancellor  Northington  said  :  "  This  court, 
gagor's  lifetime,  it  must  continue  so  after-  as  a  court  of  conscience,  is  very  jealous  of 
wards.  The  case  of  Howard  v.  Harris,  persons  taking  securities  for  a  loan  and 
1  Vern.  33,  was  as  follows:  Howard  mort-  converting  such  securities  into  purchases, 
gaged  land,  and  the  proviso  for  redemption  And  therefore  I  take  it  to  be  an  estab- 
was :  Provided  tliat  I  myself,  or  the  heirs  lished  rule,  that  a  mortgagee  can  never  pro- 
male  of  my  body,  may  redeem.  (In  a  note  vide  at  the  time  of  making  the  loan  for  any 
to  the  case  it  is  said  there  was  a  covenant  event  or  condition  on  which  the  equity  of 
that  no  one  else  should  redeem.)  The  redemption  shall  be  discharged,  and  tlie  con- 
question  was,  whether  his  assignee  should  veyance  absolute.  And  there  is  great  rea- 
redeem  it,  and  it  was  decided  he  should.  son  and  justice  in  this  rule,  for  necessitous 

*  Bonham    v.   Newcomb,    1    Vern.   8,   2  men  are  not,  truly  speaking,  freemen,  but 

Vent.  364.  to  answer  a  present  exigency  will  submit  to 
4 


REDEMPTION  A  NECESSARY  INCIDENT  OF  A  MORTGAGE.       [§§  1043-1045. 

looks  with  disfavor  and  distrust  upon  any  arrangement  by  which 
it  is  proposed  to  transfer  the  equity  of  redemption  absolutely  to  the 
mortgagee.^ 

1043.  An  agreement  that,  if  the  money  be  not  paid  by  a 
certain  day,  the  mortgagee  shall  have  the  estate  absolutely 
upon  the  payment  of  a  further  sum,  is  open  to  the  same  ob- 
jection, and  the  mortgage  is  redeemable  notwithstanding.^  Such 
an  agreement  is  to  be  distinguished  from  one  accompanying  a  trans- 
action which  is  not  a  mortgage  but  an  absolute  sale,  whereby  the 
grantor  is  allowed  to  repurchase  upon  certain  terms.^  If  the  trans- 
action was  really  a  mortgage  under  the  form  of  an  absolute  sale, 
any  agreement  respecting  it  which  would  be  objectionable  in  case 
of  a  formal  mortgage  is  equally  objectionable  here.  But  there  may 
be  a  valid  sale  with  an  agreement  for  repurchase.  "  That  this 
court,"  says  Lord  Cottenham,*  "  will  treat  a  transaction  as  a  mort- 
gage, although  it  was  made  so  as  to  bear  the  appearance  of  an 
absolute  sale,  if  it  appears  that  the  parties  intended  it  to  be  a 
mortgage,  is  no  doubt  true  ;  but  it  is  equally  clear  that  if  the  par- 
ties intended  an  absolute  sale,  a  contemporaneous  agreement  for  a 
purchase,  not  acted  upon,  will  not  of  itself  entitle  the  vendors  to 
redeem." 

1044.  Neither  is  the  mortgagee  allowed  to  obtain  a  collat- 
eral advantage,  under  the  color  of  a  mortgage,  which  does  not 
strictly  belong  to  the  contract.  Of  this  character  is  a  stipulation 
that  if  interest  is  not  paid  at  the  end  of  the  year  it  shall  be  con- 
verted into  principal;^  an  agreement  for  the  payment  of  a  com- 
mission upon  the  amount  advanced,*'  or  upon  the  rents  collected  by 
the  mortgagee,"  or  for  management  while  in  possession,^  or  as  auc- 
tioneer for  a  sale.^  "  A  man  shall  not  have  interest  for  his  money, 
and  a  collateral  advantage  besides,  for  the  loan  of  it,  or  clog  the 
redemption  with  any  by-agreement."  ^^ 

1045.  An  agreement  in  the  mortgage  itself,  or  executed  sep- 

any  terms  that  the  crafty  may  impose  upon  ton  Water  Works  Co.  L.  K.  13  Eq.  243; 

them.     The  present  case  ...  is  not  that;  Davis  v.  Thomas,  1  Russ.  &  My.  506. 

but  ...  it  seems  to  be  very  much  within  ^  §  650;  Chambers   v.   Goldwin,  9  Ves. 

the  mischief  which  the  rule  intended  to  pre-  254,  271. 

vent,  of  making  an  undue  use  of  the  iuflu-  ^  Chappie  v.  Mahon,  5  Ir.  Eq.  225. 

ence  of  a  mortgagee."  ^  Leith  v.  Irvine,  1  Myl.  &  K.  277. 

1  Sheckell  v.  Hopkins,  2  Md.  Ch.  89.  ^  Comyns  v.  Comyns,  5  Ir.  Eq.  583. 

2  Price  V.  Perrie,  P>eem.  Ch.  258;  Bowen  »  Broad  v.  Selfe,  11  W.  K.  (M.  K.)  1036, 
i>.  Edwards,  1  Ch.  K.  222.  See  Re  Ed-  9  Jur.  N.  S.  885 ;  Barrett  v.  Hartley,  L.  R. 
ward's  Estate,  11  Ir.  Ch.  367.  2  Eq.  789,  795. 

3  §§  256-279.  1''  Per  Master  of  the  Rolls  in  Jenningg 
*  In  Williams   v.  Owen,   5    Myl.  &    Cr.    v.  Ward,  2  Vern.  520. 

303.     And  see,  also.  Ward  v.  Wolverhamj)- 


§  1046.]  REDEMPTION   OF   A   MORTGAGE. 

arately,  but  contemporaneously  with  the  mortgage,  that  upon 
default  the  mortgagor  shall  forthwith  release  the  equity  of  redemp- 
tion, under  the  rule  already  stated,  is  void,  and  redemption  will  be 
allowed  notwithstanding. ^  An  agreement  executed  subsequently  to 
the  mortgage,  by  which  the  forfeiture  is  to  be  absolute  if  the  debt 
is  not  paid  at  the  day  stated,  may  be  void  as  well.^  It  has  some- 
times been  said  that  such  a  contract  will  not  be  positively  disre- 
garded in  a  court  of  equity,  though  it  will  be  viewed  suspiciously 
and  watched  narrowly.^ 

But  a  conveyance  after  default  by  the  mortgagor  to  the  mort- 
gagee, made  for  the  purpose  of  saving  the  expense  of  foreclosure, 
is  valid;  as  is  also  a  further  agreement  that  the  mortgagor  may 
redeem  within  two  years  upon  the  same  terms  as  if  the  land  had 
been  sold  under  a  foreclosure  decree.* 

1046.  Redemption  may  be  had  after  a  release  of  the  equity 
of  redemption  to  the  mortgagee,  when  it  appears  that  he  availed 
himself  of  his  possession  of  the  property  and  of  the  embarrassed 
condition  and  physical  debility  of  the  mortgagor  to  obtain  the  re- 
lease ;  ^  or  that  he  obtained  the  release  by  misrepresentation  or 
fraud  ;  "^  or  if  it  appears  that  the  mortgagor,  induced  by  threats, 
conveyed  the  equity  of  redemption  to  the  mortgagee  for  a  grossly 
inadequate  price.'  The  intention  of  the  parties  that  the  convey- 
ance by  the  mortgagor  should  have  the  effect  of  barring  his  equity 
of  redemption  should  clearly  appear.^  If,  however,  the  release  of 
the  equity  of  redemption  was  made  in  good  faith  without  undue 
influence,  for  a  new  and  adequate  consideration,  it  will  be  sus- 
tained.^ A  release  having  been  made  for  a  substantial  considera- 
tion, parol  evidence  is  not  admissible  to  show  that  the  sole  pur- 
pose of    the  release -was  to    enable  the   releasee  to  give  a  perfect 

1  Clark  y.  Henry,  2  Cow.  324.  ^  Shouler   v.   Bonander,  80    Mich.  531, 

2  Tennery  v.  Nicholson,  87  III.  464 ;  Batty    45  N.  W.  Rep.  487. 

V.  Snook,  5  Mich.  231.     Per  Manning,  J. :  "^  Brown  v.  Gaffney,  28  111.  149. 

"  To  allow  the  equity  of  redemption  to  he  *  Ennor  v.  Thompson,  46  III.  214. 

cut  off  by  a  forfeiture  of  it  in  a  separate  ^  Falls  v.  Conway  Mut.   F.   Ins.  Co.   7 

contract  would  be  a  revival  of  the  common  Allen,  46;  Trull  v.  Skinner,  17  Pick.  213  ; 

law  doctrine,  using  for  that  purpose  two  Vennum  v.  Babcock,  13  Iowa,  194;  Green 

instruments,  instead  of  one,  to  effect  the  v.  Butler,  26  Cal.  595 ;  Pritchard  v.  Elton, 

object."  38  Conn.  434 ;  Wynkoop  v.  Cowing,  21  111. 

3  Hyndman  v.  Hyndman,  19  Vt.  9,  46  570;  Marshall  v.  Stewart,  17  Ohio,  356; 
Am.  Dec.  171;  Linnell  v.  Lyford,  72  Me.  Holridge  v.  Gillespie,  2  Johns.  Ch.  30; 
280.  Remsen    v.    Hay,    2    Edw.    535;  Odell  v. 

*  Stoutz  V.  Rouse,  84  Ala.  309,  4  So.  Rep.  Montross,  6  Hun,  155,  68  N.  Y.  499 ;  Shaw 

170.  V.   Walbridge,   33    Ohio   St.   1;  Linnell   v. 

5  Thompson  i'.  Lee,  31  Ala.  292.      And  Lyford,  72  Me.  280;  Stoutz  v.   Rouse,  84 

see  Russell  v.  Southard,  12  How.  139.  Ala.  309,  4  So.  Rep.  170. 

6 


CIRCUMSTANCES   AFFECTING   REDEMPTION.  [§  1047. 

title  to  such  portions  of  the  lands  as  he  might  be  able  to  sell,  ap- 
plying the  proceeds  to  the  credit  of  the  releasor,  and  that  the 
equity  of  redemption  in  the  portions  not  so  sold  should  remain 
unaffected  by  the  release.^ 

II.    Circumstances  affecting  Redemption. 

1047.  The  right  of  redemption  is  barred  by  a  foreclosure 
properly  made.^  Though  the  mortgagee  holds  two  mortgages  upon 
the  premises,  the  foreclosure  of  one  of  them  extinguishes  the  mort- 
gagor's equitable  interest.^  But  the  right  of  redemption  belonging 
to  every  person  claiming  under  the  mortgagor,  and  being  an  inci- 
dent to  every  interest  in  the  land  mortgaged,  the  right  cannot  be 
extinguished  without  due  process  of  law,  which  shall  afford  every 
one  having  such  interest  an  opportunity  of  exercising  his  right  to 
redeem  ;  and  consequently  the  foreclosure  bars  the  rights  of  re- 
demption of  those  only  who  are  made  parties  to  the  action.  As  to 
those  having  this  right  who  are  not  made  parties,  the  proceeding  is 
a  nullity.'* 

A  purchaser  at  a  sale  under  a  foreclosure  suit  in  equitj',  to  which 
a  junior  mortgagee  was  by  oversight  not  made  a  party,  may  main- 
tain a  suit  against  such  mortgagee  to  compel  him  to  redeem  within 
a  reasonable  time  or  to  be  foreclosed.  In  a  recent  case  in  New  Jer- 
sey it  was  decreed  that  if  such  junior  incumbrancer  should  elect  to 
redeem,  he  should  pay  not  only  the  principal  and  interest  of  the 
mortgage  foreclosed,  but  also  the  amount  paid  by  the  purchaser 
upon  any  lien  prior  to  such  junior  mortgage  ;  and  that  the  junior 
mortgagee  should,  upon  election  to  redeem,  give  notice  to  that  effect 
witliin  thirty  days,  whereupon  a  decree  should  be  entered  that  an 
account  be  stated  by  a  master  ;  but  if  he  should  fail  or  neglect  to 
give  such  notice  of  his  election  within  the  time  prescribed,  a  decree 
of  strict  foreclosure  should  be  entered.^  By  a  bill  to  redeem  in  such 
case,  the  person  not  made  a  party  cannot  obtain  a  judgment  dis- 
possessing the  purchaser  at  the  foreclosure  sale,  for  such  purchaser 
at  least  occupies  tlie  place  of  the  mortgagee,  against  whom  no  one 
interested  in  the  equity  of  redemption  can  maintain  an  action  at 
law.^ 

1  Sweet  V.  Mitchell,  13  Wis.  641.  dock  v.  Ford,  17  Iiid.  .52;  Bates  v.  Riuldick, 

2  Weincr  v.  Ileintz,  17  III.  a.'JO ;  Willis  v.  2  Iowa,  42.3,  6.'j  Am.  Dec.  774;  Johnson  v. 
M'Intosh,  Ga.  Dec.  162 ;  Stoddard  v.  Forbes,  Harmon,  19  Iowa,  56  ;  Sellwood  i-.  Gray,  1 1 
1.3  Iowa,  296  ;  Balliiif,^er  v.  Houriand,  87  111.  Ort'c.  .5,34,  5  Pac.  Hep.  196. 

.51.3,  29  Am.  Rep.  69.  6  I'arkcr  r.  Child,  25  N.  J.  Eq.  41. 

3  Weiss  V.  Ailing,  .34  Conn.  60.  o  p^ans  v.  Tike,  118  U.  S.  241,  6  Sup.  Ct. 
♦  Miner  v.  Beekman,  50  N.  Y.  .337,   14    Rep.  1090. 

Abb.  I'r.  N.  S.  1  ;  42  How.  Tr.  .33;  Miir-  7 


§§  1047  a,  1048.]     redemption  of  a  mortgage. 

1047  a.  Redemption  may  be  had  after  foreclosure  if  the 
mortgagee  or  other  holder  of  the  title  recognizes  the  mortgage 
as  a  continuing  obligation.  Thus  where  the  owner  of  a  farm 
mortgaged  it  to  a  bank  to  secure  a  loan,  and  afterwards  the  bank 
foreclosed  the  mortgage,  and  obtained  the  title  under  a  decree  of 
strict  foreclosure,  but  the  mortgagor  still  continued  to  make,  and 
the  bank  to  receive,  payments  on  the  mortgage  debt,  such  payments 
had  the  efifect  to  rehabilitate  the  mortgagor  with  the  right  to  re- 
deem as  fully  as  if  the  decree  of  foreclosure  had  never  been  made.^ 

The  mortgagor  may  agree  with  the  mortgagee  who  is  about  to 
foreclose  the  mortgage  that  the  latter  may  buy  at  the  sale,  and  that 
the  former  may  at  his  option  redeem  within  a  limited  time.  In 
such  case  the  foreclosure  sale  does  not  change  the  relations  of  the 
parties  until  the  expiration  of  that  period.^ 

1048.  Redemption  may  be  had  after  foreclosure  by  any  per- 
son entitled  to  it  who  was  not  made  a  party  to  the  suit.^  This 
rule  has  been  extended  to  give  the  purchaser  of  the  equity  from 
the  mortgagor  the  right  to  redeem,  because  not  made  a  party  to 
the  suit,  even  though  his  deed  was  not  on  record  at  the  time  of  the 
decree  of  foreclosure.*  A  purchaser  of  a  part  of  the  mortgaged 
premises  has  a  right  to  redeem  under  like  ciixumstances,^  and  an 
attaching  creditor  has  the  same  right.*^ 

A  wife  who  owns  a  part  of  the  mortgaged  premises,  but  was  not 
made  a  party  to  the  foreclosure  suit,  is  allowed  to  redeem,  although 
her  husband  was  made  a  party  to  the  suit,  and  was  foreclosed  of  all 
his  rights  in  the  remainder  of  the  land.''^ 

Not  only  the  purchaser  at  the  foreclosure  sale  with  notice  that 
one  interested  in  the  estate  was  not  made  a  party  to  the  foreclosure 
suit,  but  also  any  grantee  of  such  purchaser,  with  like  notice,  takes 
the  title  subject  to  the  right  of  such  person  to  redeem.^ 

A  first  mortgagee  brought  a  foreclosure  suit  to  which  he  did  not 
make  a  second  mortgagee  a  party.     Pending  this  suit  the  second 

1  Lounsbury  v.  Norton,  59  Conn.  170,  22  Bunce  v.  West,  62  Iowa,  80,  17  N.  W.  Rep. 
Atl.  Rep.  153.  179;  Gower  v.  Winchester,  33  Iowa,  303; 

2  Heald  v.  Jardine  (N.  J.  Eq.),  21  Atl.  Smith  v.  Sinclair,  10  111.  108;  Strang  v. 
Rep.  586.  See  this  case,  also,  as  to  what  Allen,  44  111.  428  ;  Nesbit  f.  Hanway,  87  111. 
evidence  is  sufficient  to  show  a  waiver  of  400. 

such  option.  *  Hodson  r.  Treat,  7  Wis.  263. 

3  Farwell  v.  Murphy,  2  Wis.  533 ;  Murphy  '<>  Green  v.  Dixon,  9  Wis.  532. 
V.  Farwell,  9  Wis.  102;  Pratt  v.  Frear,  13  6  Chandler  v.  Dyer,  37  Vt.  345. 
Wis.  462;  Wiley  v.  Ewing,  47  Ala.  418;  '  Green  r.  Dixon,  9  Wis.  532. 

Hodgen  v.  Guttery,  58  111.  431 ;  American        »  Hoppin  v.  Doty,  22  Wis.  621 ;  Hodson 
Buttonhole  Co.  v.  Burlington  Mut.  Loan    v.  Treat,  7  Wis.  263. 
Asso.  61  Iowa,  464,  16  N.  W.  Rep.  527  ; 


CIRCUMSTANCES    AFFECTING   REDEMPTION.       [§§  1049,  1050. 

mortgagee  brought  a  foreclosure  suit  without  making  the  first  mort- 
gagee a  party  to  it.  Each  suit  proceeded  to  judgment  and  sale  in 
this  ordei".  It  was  held  that  the  purchaser  under  the  first  decree 
and  sale  took  the  entire  fee,  subject  only  to  the  second  mortgage, 
the  payment  of  which  having  been  tendered,  the  pvu'chaser  at  the 
foreclosure  sale  under  that  mortgage  was  not  allowed  to  redeem. ^ 
But  a  prior  mortgagee  has  no  right  to  redeem  a  subsequent  mort- 
gage although  he  has  barred  all  other  interests  in  the  equity  of 
redemptiou  bj'^  foreclosure.'-* 

One  who  has  obtained  an  interest  in  the  property  pending  a 
foreclosure  suit  is  not  generally  permitted  to  redeem.^ 

On  a  bill  to  redeem  from  an  invalid  foreclosure,  the  decree  should 
provide  for  redemption  from  an  unforeclosed  security,  and  not  from 
a  void  sale ;  and  in  determining  the  amount  to  be  paid,  it  is  errone- 
ous to  make  a  rest  in  computing  interest  at  the  date  of  the  sale.* 

1049.  The  mortgagor  may  be  estopped  by  his  own  acts.  If 
the  owner  of  an  equity  of  redemption  encourages  a  person  to  pur- 
chase the  mortgage  by  promising  that  he  would  never  redeem,  a 
court  of  equity  will  not  allow  him  to  violate  his  engagements  and 
redeem  from  such  purchaser,  who  has  made  expensive  improvements 
on  the  land ;  ^  nor  will  he  be  allowed  to  redeem  after  having  joined 
the  mortgagee  in  selling  the  premises  at  public  auction  under  an 
engagement  to  give  a  title  of  warranty,  and  he  has  received  the 
purchase-money  from  one  who  purchased  in  good  faith,  and  made 
large  improvements.^ 

1050.  The  owner  of  the  equity  of  redemption  may  maintain 
a  bill  to  redeem  one  only  of  two  mortgages  held  by  the  same 
person  as  assignee  ;  and  the  fact  that  the  other  mortgage  has  ap- 
parently been  fully  foreclosed  will  not  prevent  a  decree  in  favor  of 
the  owner  as  to  the  mortgage  he  seeks  to  redeem.' 

But  if  two  mortgages  be  given  to  secure  the  same  debt,  as  part 
of  one  and  the  same  transaction,  the  mortgagor  must  redeem  from 
both.  He  has  no  right  to  separate  the  transaction  into  two  parts 
when  it  was  entire  in  its  origin.^ 

A  purchaser  at  an  execution  sale  of  the  mortgagor's  right  in 
equity  having  redeemed  the  mortgage,  the  mortgagor  may  redeem 
from  tlie  execution  sale  within  the  year  allowed  for  this,  by  pay- 
ing the  amount  required  for  the  redemption  of  that  interest  alone, 

1  Murphy  v.  Farwcll,  9  Wis.  102.  6  ^ay  v.  Valentine,  12  Pick.  40,  22  Am. 

2  Goodman  v.  Wliite,  26  Conn.  317.  Dec.  397. 

8  Cook  V.  Mancius,  5  John.s.  Ch.  89.  6  Wright  i-.  Whithead,  14  Vt.  268. 

*  Grover  v.  Fox,  36  Mich.  461.  '^  Milliken  v.  Bailey,  61  Me.  316. 

6  Stinchfield  v.  Milliken,  71  Me.  567. 

9 


§  1051.] 


REDEMPTION   OF   A   MORTGAGE. 


and  may  afterwards  redeem  from  the  mortgage  within  the  time  in 
which  he  might  have  redeemed  the  estate  of  the  mortgagee  had  no 
sale  been  made.^ 

1051.  In  several  States  a  period  is  allowed  after  a  foreclos- 
ure sale  for  redemption.  A  brief  statement  of  the  fact,  whether 
redemption  is  allowed  or  not,  and  of  the  time  allowed  after  sale, 
is  given  in  a  note  ;  ^  but  a  fuller  statement  of  the  law  in  this  re- 
spect is  given  with  the  statutory  provisions  .of  the  several  States  in 
relation  to  foreclosure  and  redemption/^ 

This  is  a  right  of  redemption  as  distinguished  from  an  equity  of 
redemption.^  A  bill  in  equity  is  not  generally  needed  to  enforce 
this  right.^  The  right  is  statutory,  and  is  to  be  enforced  as  the 
statute  provides,  and  not  otherwise.^ 

As  already  noticed,  the  law  existing  at  the  time  of  the  execu- 
tion of  a  mortgage  is  that  which  governs  as  to  its  validity.'  It  is 
equally  true  that  the  law  existing  at  the  time  of  the  making  of 
the  mortgage  governs  in  respect  to  foreclosure  and  redemption 
after  a  foreclosure  sale.^  If,  upon  petition  of  a  second  mortgagee, 
the  whole  estate  be  sold  to  discharge  the  mortgages  in  the  order  of 


1  Atkins  V.  Sawyer,  1  Pick.  351,  354,  11 
Am.  Dec.  188. 

2  Alabama :  For  two  years  after  sale. 
Arkansas  :  One  year.  California  :  For  six 
months  by  owner.  Colorado:  For  six  months 
by  owner.  Coimecticut :  None.  Delaware  : 
None.  Florida:  None.  Georgia:  None. 
Illinois:  For  twelve  months  by  owner.  Indi- 
ana :  For  one  year  after  sale.  Iowa :  For 
one  year  after  sale.  Kansas  :  None.  Ken- 
tucky :  None.  Louisiana :  None.  Maine : 
None  after  sale,  but  three  years  after  pos- 
session taken  for  foreclosure  or  first  adver- 
tisement. Massachusetts  :  None  after  sale, 
but  three  years  after  possession  taken  for 
foreclosure.  Maryland:  None.  Michigan: 
None,  but  no  sale  can  be  made  within  one 
year  after  filing  the  bill  to  foreclose.  Min- 
nesota :  One  year  after  sale.  Mississippi : 
None.  Missouri :  One  year  after  sale,  under 
a  trust  deed  and  purchase  by  the  cestui 
que  trust.  Nebraska :  None.  Nevada :  Six 
months  after  sale.  New  Hampshire  :  One 
year  after  entry  to  foreclose.  New  Jersey  : 
None.  New  Mexico  :  One  year  after  sale. 
New  York  :  None.  North  Carolina  :  None. 
North  Dakota  :  One  year.  Ohio  :  None.  Or- 
egon :  Four  months  after  sale.  Pennsyl- 
vania :  None ;    but  suit  by  scire  facias  to 

10 


foreclose  cannot  be  commenced  until  the 
lapse  of  one  year  after  default.  Rhode 
Island  :  None  after  sale  ;  but  three  years 
after  possession  taken  and  continued  either 
by  peaceable  entry  or  by  action.  South 
Carolina  :  None.  South  Dakota :  One  year. 
Tennessee  :  Two  years  after  sale.  Texas : 
None.  Vermont:  Time  limited  by  the  court, 
not  exceeding  one  year  from  judgment. 
Virginia  :  None.  Washington  :  One  year. 
West  Virginia  :  None.  Wisconsin  :  None  ; 
but  a  year  is  allowed  after  the  decree  be- 
fore a  sale. 

3  See  §§  1322-1366. 

*  Mayer  v.  Farmers'  Bank,  44  Iowa, 
212. 

5  McHugh  V.  Wells,  39  Mich.  175. 

^  Scobey  v.  Kiningham  (Ind.),  31  N.  E. 
Rep.  355  ;  Herdman  v.  Cooper  (111.),  28  N. 
E.  Eep.  ]094;  Thornley  v.  Moore,  106  111. 
496  ;  Littler  v.  People,  43  111.  188  ;  Wooters 
V.  Joseph  (111.),  27  N.  E.  Rep.  80;  Hyman 
V.  Bogue,  135  111.  9,  26  N.  E.  Rep.  40  ;  Dur- 
ley  V.  Davis,  69  111.  133  ;  Silliman  v.  Wing, 
7  Hill,  159. 

"  §  663. 

»  §  1822;  Smith  v.  Green,  41  Fed.  Rep. 
455,  Sea  Grove  B.  &  L.  Asso.  v.  Stockton 
(Pa.),  23  Atl.  Rep.  1063. 


CIRCUMSTANCES  AFFECTING   REDEMPTION.  [§  1061. 

their  prioritjs  and  there  was  no  right  of  redemption  when  the  first 
mortgage  was  given,  a  third  mortgagee  cannot  redeem,  though  he 
might  have  done  so  had  the  second  mortgagee  merely  foreclosed  his 
own  mortgage.  The  third  mortgagee  cannot  complain,  because  he 
is  chargeable  with  notice  of  the  contents  of  the  petition. ^  A  stat- 
ute giving  a  right  of  redemption  for  two  years  after  sale  is  uncon- 
stitutional and  void,  as  impairing  the  obligation  of  the  conti*act, 
when  applied  to  mortgages  executed  prior  to  the  enactment  of  the 
statute.^  In  like  manner  it  has  been  held  that  a  law  shortening 
the  time  of  redemption  from  two  years  to  one  j'ear  after  sale  is 
unconstitutional  in  respect  to  mortgages  existing  at  the  time  it  took 
effect ;  and  that  redemption  must  be  allowed  upon  such  mortgages 
for  two  years,  in  accordance  with  the  law  existing  when  they  were 
executed.^  The  better  rule,  however,  is  that  the  right  to  redeem 
after  sale  is  something  pertaining  to  the  remedy,  and  is  not  so  essen- 
tially and  intrinsically  a  contract  right  as  to  be  entirely  beyond 
legislative  control.* 

Redemption  may  be  allowed  after  the  expiration. of  the  statutory 
period  if  it  appears  that  the  mortgagor  understood  that  the  pur- 
chaser at  the  foreclosure  sale  took  the  title  in  order  to  allow  him  to 
redeem,  and  that  therefore  he  gave  up  efforts  to  obtain  the  money 
elsewhere.^ 

A  mistake  by  the  officer  who  made  the  sale,  in  certifying  the 
time  of  redemption  to  be  one  year  instead  of  two,  as  allowed  by 
law,  does  not  avoid  the  foreclosure  ;  but  in  order  to  redeem,  a  tender 
should  be  made  within  the  two  years.^ 

The  statutory  time  of  redemption  cannot  be  extended  to  await 
the  determination  of  a  suit  in  equity  for  an  accounting.  The  statute 
fixes  the  terms  of  redemption,  and  the  amount  due  must  be  paid  or 
tendered  within  the  time  fixed,  unless  waived  or  extended.  The 
parties  may  extend  the  time  by  agreement." 

When  the  holder  of  the  certificate  of  purchase,  after  the  expi- 

1  Gargan  v.  Grimes,  47  Iowa,  180.     See,  Ind.  268,  277, 19  N.  E.  Rep.  125 ;  Parker  v. 
also,  Mayer  v.  Farmers'  Bank,  44  Iowa,  212.  Dacres,  130  U.  S.  43,  9  Sup.  Ct.  Rep.  433. 

2  Howard  v.  Bugbee,  24  How.  461  ;  Bug-        ^  Newman  v.  Locke,  66  Mich.  27,  36  N. 
bee   V.  Howard,  32   Ala.    713;    Goenen   v.  "W.  Rep.  166. 

Schroeder,  8  Minn.  387  ;  Heyward  v.  Judd,  ^  Johnstone  zj.  Scott,  11  Mich.  232. 

4  Minn.  483;  Carroll  v.  Rossiter,  10  Minn.  ''  Hoover  v.  .Johnson,  47  Minn.  434,  50  N. 

174.  W.  Rep.  475.     If  sufficient  be  shown  to  es- 

8  Cargill  V.  Power,  1  Mich.  369.  tablish  a  waiver  of  the  time,  and  acts  relied 

*  Anderson  v.  Anderson,  129  Ind.  573,29  on  by  the  debtor  whicli  amount  to  an  estop- 

N.  E.  Rep.  35.     And  see  Connecticut  Mut.  pel  in  pais  constitute  such  waiver,  Tico  v. 

L.  Ins.  Co.  V.  Cu.shman,  108  U.  S.  51,2  Sup.  Russell,  43  Minn.  66,  44  N.  W.  Rep.  886, 

Ct.  Rep.  236  ;  Davis  y.  Rupe,  114  Ind.  588,  yet   the   redemptioner  must   act  promptly 

17  N.  E.  Rep.  163;  Hervey  v.  Krost,  116  while  tlie  option  is  o|)en. 

11 


§  1051a.]  REDEMPTION   OF   A   MORTGAGE. 

ration  of  the  time  for  redemption,  allows  the  grantee  of  the  equity 
of  redemption  to  redeem,  and  indorses  and  delivers  the  certificate 
to  him,  this  is  a  redemption,  and  the  certificate  becomes  null  and 
void.  It  does  not  amount  to  a  transfer  of  the  certificate,  or  enable 
the  holder  of  it  to  use  it  as  a  basis  of  title.^  A  purchaser  of  the 
premises  at  a  sheriff's  sale  under  execution  stands  in  the  place  of 
the  mortgagor  as  regards  the  time  within  which  he  may  redeem 
from  a  subsequent  foreclosure  sale,  and  cannot  redeem  after  the 
time  within  which  the  latter  may  redeem  has  expired,  and  during 
the  time  beyond  that  allowed  to  judgment  creditors  of  the  mort- 
gagor for  redemption.2  The  right  of  a  second  mortgagee  to  re- 
deem cannot  be  prejudiced  by  an  extension  of  the  statutory  time  of 
redemption  by  arrangement  between  the  first  mortgagee  and  the 
mortgagor. 3 

1051  a.  A  right  of  redemption  after  foreclosure,  given  by- 
statute  in  any  State,  becomes  a  rule  of  property  binding  upon 
the  courts  of  the  United  States  sitting  in  such  State  ;  and  the  rules 
of  practice  of  sirch  courts  must  be  made  to  conform  to  the  law  of 
the  State  so  far  as  may  be  necessary  to  give  full  effect  to  the  right.* 
But  although  a  decree  of  a  court  of  the  United  States  sitting  in 
Illinois  for  a  foreclosure  sale,  without  providing  for  a  redemption, 
according  to  the  statute  of  that  State,  is  erroneous,  yet  it  is  not 
void ;  and  a  mortgagor  entitled  to  redeem  must  exercise  his  right 
within  a  year,  or  his  right  will  be  lost.^  The  defect  in  such  a 
decree  is  merely  in  its  failing  to  provide  for  a  right  to  redeem. 
The  court  having  jurisdiction  of  the  cause,  its  decree  is  not  void, 
and  it  cannot  be  questioned  collaterally.  The  right  of  redemption 
exists  by  force  of  the  statute.  The  deed  was  prematurely  executed 
and  delivered  to  the  purchaser,  but  the  right  to  redeem  was  not 
thereby  impaired.  As  affecting  the  sale  itself,  it  would  seem  that  a 
sale  without  redemption  would  insure  a  better  price  than  a  sale 
with  a  right  to  redeem ;  so  that  the  mortgagor  has  nothing  to  com- 

1  Frederick  v.  Ewrig,  82  111.  363.  See  247;  Blair  v.  Chicago  &  Pacific  R.  Co.  12 
McRoberts  v.  Conover,  71  III.  524;  Brooks  Fed.  Rep.  750;  Mason  v.  N.  W.  Ins.  Co. 
V.  Keister,  45  Iowa,  303.  106  U.  S.  163, 1  Sup.  Ct.  165.     The  Circuit 

2  McRoberts  v.  Conover,  71  111.  524.  Court  of  the  United  States  has  power,  by 
8  Sager  v.  Tupper,  35  Mich.  134.  rule  or  otherwise,  to  require  a  party,  exer- 
*  Brine  v.  Insurance  Co.  96  U.  S.  627,  6    cising    the   right  of  redemption   given   by 

Reporter,  33,  7  Am.  L.  Rec.  85, 2  South.  L.  statute,  to  pay  to  the  clerk  of  the  court  one 

J.  185  ;  Orvis   v.   Powell,  98   U.   S.  176,  8  per  cent,  on  the  money  received  and  paid 

Cent.  L.  J.  74;  Swift  v.  Smith,  102  U.  S.  out  by  him    as   redemption-money.     Blair 

442.     For  a  decree  giving  substantial  effect  v.  Chicago  &  Pacific  R.  Co.  12  Fed.  Rep. 

to  the  equity  of  redemption  secured  by  stat-  750. 

ute  in  Minnesota,  see  Allis  v.  Insurance  Co.        ^  Suitterlin  v.  Conn.  Mut.  L.  Ins.  Co.  90 

97   U.  S.  144;  Burley  v.  Flint,  105  U.  S.  111.  483,  11  Chicago  L.  N.  193. 

12 


CIRCUMSTANCES   AFFECTING   REDEMPTION.      [§§  1051  J,  1051  C. 

plain  of  in  that  respect.  Had  all  been  in  regular  form,  and  a  cer- 
tificate of  purchase  only  given  on  the  sale,  the  purchaser  would, 
after  the  lapse  of  the  statutory  period,  be  entitled  to  a  deed,  there 
having  been  no  effort  for  the  exercise  of  the  right  of  redemption. 
Now,  after  the  lapse  of  that  time,  the  purchaser  having  the  deed, 
although  it  was  prematurely  executed,  the  purchaser  may  hold  it, 
there  being  no  equitable  ground  for  the  interposition  of  a  court  of 
equity  to  set  the  sale  aside. 

1051  b.  The  right  of  possession  during  the  period  of  redemp- 
tion usually  remains  with  the  mortgagor.  Under  statutes  allow- 
ing the  owner  of  the  equity  of  redemption  the  right  of  possession, 
and  the  right  to  redeem  for  a  limited  time  after  a  foreclosure  sale, 
he  is  entitled  to  the  crops  harvested  on  the  land  during  that  time, 
though  these  are  pledged  by  the  mortgage.^  The  rights  of  the 
mortgagor  and  purchaser  are  measured  by  the  statute,  and  not  by 
anything  in  the  mortgage. 

The  mortgagor  may,  however,  by  a  provision  in  the  mortgage, 
bargain  away  his  right  of  possession  after  foreclosure,  and  his  statu- 
tory right  to  redeem.^ 

1051  c.  Redemption  after  a  foreclosure  sale  by  a  purchaser  of 
the  equity  of  redemption  extinguishes  the  mortgage  lien,  in 
case  such  purchaser  has  not  assumed  the  payment  of  the  mortgage 
debt.^  The  foreclosure  sale  itself  exhausts  the  decree  as  to  the 
property  sold,  leaving  the  mortgage  subject  to  redemption  under 
the  statute;  and  the  mortgage  creditor  cannot,  after  redemption  by 
a  junior  incumbrancer,  resell  the  land  to  enforce  payment  of  an  un- 
satisfied part  of  his  judgment.*  The  mortgage  creditor  who  fore- 
closes is  not  allowed  to  buy  in  the  property  for  a  small  sum,  and,  in 
the  event  of  redemption,  to  subject  the  property  again  to  sale.  The 
riglit  of  redemption  is  created  for  the  benefit  of  the  debtor  and 
junior  incumbrancer.     When  a  junior   incumbrancer  redeems,  he 

1  Second  Nat.  Bank  v.  Swan  (N.  D.),  50  Campbell  v.  Maginnis,  70  Iowa,  589,  31  N. 

N.  W.  Rep.  357;  Pioneer  Loan  Co.  u.  Farn-  W.  Rep.  946;    Peckenbaugh   v.   Cook,  61 

ham  (Minn.),  52  N.  W.  Rep.  897.  Iowa,  477,  16  N.  W.  Rep.  530.     The  earlier 

'^  Paine  v.  McElroy,  73  Iowa,  81,  34  N.  case  of  Crosby  v.  Eikader  Lodge,  16  Iowa, 

W.  Rep.  615;  Swan  v.  Mitchell,  82  Iowa,  400,  is  overruled. 
307,  47  N.  W.  Rep.  1042.     See  §  1521.  *  Anderson  v.  Anderson,  129  Ind.  573,  29 

3  Willis  f.  Miller  (Orcg.),  31  Pac.  Rep.  N.  E.  Rep.  35,  citing    Horn   v.  Bank,  125 

827  ;  Moody  v.  Funk,  82  Iowa,  1,  47  N.  W.  Ind.  381,  25  N.  E.  Rep.  558  ;  Green  v.  Stobo, 

Rep.  1008  ;  Bevans  v.  Dewey,  82  Iowa,  85,  118  Ind.  332,  20  X.  E.  Rep.  850;  Ilervey  v. 

47  N.  \V.  Rep.    1009;  Clayton  v.  Ellis,  50  Krost,  116  Ind.  268,  277,  19  N.  E.  Rep.  125  ; 

Iowa,  590;   Ilayden  i\  Smith,  58  Iowa,  285,  Simpson    v.  Castle,   52    Cal.    644;    People 

287,  12  N.  \V.  Rej).  289;  Todd  v.  Davey,  CO  v.  Easton,  2  Wend.  297;  Ru.sscll  v.  Allen, 

Iowa,  532,  534,  15  N.  W.  Rep.  421  ;  Harms  10  Paige,  249;  Clayton  i;.  Ellis,  50  Iowa, 

V.  Palmer,  73  Iowa,  446,  35  N.  W.  Rep.  515  ;  590. 

13 


§  1052.]  REDEMPTION   OF   A   MORTGAGE. 

does  SO,  in  contemplation  of  law,  for  his  own  benefit,  and  not  for 
that  of  the  creditor  upon  whose  judgment  the  sale  was  made.^ 

But  if  redemption  is  made  by  a  person  primarily  liable  for  the 
mortgage  debt,  and  a  judgment  for  a  deficiency  is  entered  against 
him,  the  judgment  constitutes  a  lien  on  the  redeemed  land,  which 
may  be  sold  again  on  execution  based  upon  such  judgment.  Upon 
this  point  the  Supreme  Court  of  Illinois,  in  a  recent  case,  say : 
*'  A  mortgage,  or,  as  in  this  case,  a  deed  of  trust  in  the  nature  of  a 
mortgage,  vests  in  the  party  secured  a  lien  upon  the  mortgaged 
premises.  By  virtue  of  that  lien  the  mortgagee  is  entitled  to  have 
the  mortgaged  property  sold  under  a  decree  of  foreclosure,  and  the 
proceeds  of  the  sale  applied  to  the  payment  of  the  debt  secured. 
This  is  the  mode  provided  by  law  for  the  enforcement  of  the  lien ; 
and,  when  the  lien  has  been  once  enforced  by  the  sale  of  the  prop- 
erty, it  has,  as  to  such  property,  expended  its  force  and  accom- 
plished its  purpose,  and  the  property  is  no  longer  subject  to  it. 
When  the  redemption  is  made  by  a  party  primarily  liable  on  the 
mortgage  debt,  it  may  be  that  the  same  property  may  be  resorted 
to  again  for  the  purpose  of  subjecting  it  to  the  payment  of  an  un- 
paid balance  due  on  the  mortgage,  but  it  is  not  because  of  any  right 
to  enforce  the  mortgage  lien  against  the  property  a  second  time,  but 
because  of  the  rule  of  law  which  subjects  all  the  property  of  the 
debtor  to  the  payment  of  his  debts,  until  they  are  satisfied  in  full ; 
but  where  the  redemption  is  made  by  a  party  not  liable  upon  the 
mortgage  debt,  the  mortgage  lien  having  been  exhausted,  the  prop- 
erty cannot  be  subjected  a  second  time  to  the  satisfaction  of  the 
same  lien."  ^ 

III.    When  Redemption  may  he  made. 

1052.  There  can  be  no  redemption  till  the  mortgage  is  due. 
A  mortgage  payable  at  a  fixed  time  cannot  be  redeemed  until  that 
time  has  arrived  ;  ^  and  even  if  the  mortgagor  tenders  the  interest 
for  the  whole  period  the  mortgage  has  to  run,  a  suit  to  redeem  can- 
not be  maintained  against  the  objection  of  the  mortgagee  until  the 
mortgage  is  due  by  its  terms.  The  courts  cannot  substitute  another 
contract  for  that   made  by  the  parties.*     A  mortgage  payable  on 

1  Anderson  v.  Anderson,  129  Ind.  573,  29  grantee.  Moody  i'.  Funk,  82  Iowa,  1,  47  N. 
N.  E.  Rep.  35;  Porter  v.  Steel  Co.  122  U.    W.  Rep.  1008. 

S.  267,  7  Sup.  Ct.  Rep.  1206.  3  Brown  v.  Cole,  14  Sim.  427,  14  L.  J.  N. 

2  Ogle  V.  Koerner  (111.),  29  N.  E.  Rep.  S.  Ch.  167  ;  Burrowes  v.  MoUoy,  2  Jo.  & 
563.  There  is  a  marked  difference  between  Lat.  521  ;  Abbe  v.  Goodwin,  7  Conn.  377. 
the  case  of  a  redemption  by  the  judgment  See  Moore  v.  Cord,  14  Wis.  213. 

debtor  and   that  of  a  redemption   by  his        *  Abbe  v.  Goodwin,  7  Conn.  377. 

14 


WHEN   REDEMPTION   MAY   BE   MADE.  [§  1053. 

demand,  or  at  or  before  a  day  certain,  may  be  redeemed  at  any 
time.^ 

But  if  a  bill  to  redeem  be  brought  before  the  debt  is  due,  and  no 
objection  be  taken  that  the  bill  is  premature,  and  the  debt  is  over- 
due when  the  whole  case  is  before  the  court  for  decision  upon  its 
merits,  the  objection  may  be  considered  as  waived.  It  may,  how- 
ever, be  a  cause  for  denying  costs  for  the  complainant.^ 

The  right  of  redemption  continues  until  barred  by  lapse  of  time, 
by  strict  foreclosure,  or  by  deed  given  in  completion  of  a  foreclosure 
sale.3  It  is  not  barred  by  any  proceeding  at  law  other  than  a  fore- 
closure suit,  as,  for  instance,  a  judgment  for  waste  against  the  owner 
of  the  equity  for  cutting  trees  on  the  mortgaged  land.'^  There  is 
no  remedy  for  obtaining  redemption  other  than  a  bill  in  equity.^ 
Even  in  case  the  mortgage  debt  has  been  wholly  paid,  if  the  mort- 
gagee claims  that  something  is  still  due,  a  bill  in  equity  is  the 
proper  remedy.^  In  such  a  suit  he  may  demand  that  the  mortgage 
be  discharged,  but  must  offer  to  pay  any  sum  that  may  be  ad- 
judged to  be  still  due."  So  long  as  the  mortgage  remains  in  force 
and  unsatisfied  at  law,  the  mortgagor  cannot  maintain  ejectment 
against  the  mortgagee.^  The  mortgagee  cannot  be  compelled  to 
take  the  mortgaged  property  at  an  appraised  value. ^  He  cannot 
be  compelled  to  take  anything  but  money  in  payment,  and  that 
only  by  a  bill  in  equity  properly  framed  for  the  purpose.^'^ 

As  a  general  rule,  when  a  suit  to  redeem  by  the  mortgagor  would 
be  barred  by  the  statute  of  limitations  a  suit  by  any  one  claiming 
under  him  would  be  barred  also.^^ 

Redemption  is  not  barred  under  a  decree  of  foreclosure  and  sale 
until  the  sale  is  consummated  by  the  confirmation  of  the  master's 
report  and  the  delivei-y  of  the  deed.^^ 

1053.  The  time  of  redemption  may,  by  agreement  of  the 
parties,  be  extended  beyond  the  period  at  which  it  might  other- 
wise be  barred  by  foreclosure ;  ^^  as  by  an  agreement  to  allow  six 
months  to  redeem  after  the  regular  time  for  redemption  would  ex- 

1  In  re  John  &  Cherry  Streets,  19  Wend.  Dec.  260 ;  Hill  v.  Payson,  3  Mass.  559 ;  Par- 
659.  sons  v.  Welles,  17  Mass.  419. 

2  Stinchfieid  v.  Milliken,  71  Me.  567.  «  Pell  v.  Ulmar,  18  N.  Y.  139;  Chase  i-. 
'^  Hull  V.  McCall,  13  Iowa,  467  ;  Weiner    Peck,  21  N.  Y.  581. 

V.  Heintz,  17  111.  259;  Ileimbert'er  v.  Boyd,  »  Craft  v.  Bullard,  1  Sm.  &  M.  Ch.  306. 

18  Ind.  420.  10  Craft  v.  Hullard,  1  Sm.  &  M.  Ch.  366. 

*  Paulling  i;.  Barron,  32  Ala.  9.  ii  Tucker  v.  White,  2  Dev.  &  B.  Ecj.  289. 

^  Pearce  v.  Savage,  45  Me.  90;  Douglass  ^^  Brown  v.  Frost,  Iloffm.  41. 

V.  Woodworth,  51  Barb.  79.  13  Nichols  v.  Otto,  132  111.  91,  99;  Union 

8  Pratt  V.  Skolfield,  45  Me.  380.  Mut.  L.  Ins.  Co.  v.  White,  100  111.  07  ;  Alli- 

^  Beach  v.  Cooke,  28  N.  Y.  508,  86  Am.  son  u.  Loomis,  9  N.  Y.  Supp.33,55  IIun,012. 

15 


§  1053.]  REDEMPTION   OF   A   MORTGAGE. 

pire.i  If  the  promise  be  to  reconvey  or  to  allow  the  premises  to 
be  redeemed  within  a  reasonable  time,  the  mortgagor  must  be  ready- 
to  tender  his  money  within  a  reasonable  time  or  he  will  be  allowed 
no  relief.2  Such  a  promise  made  after  the  time  limited  for  redemp- 
tion has  passed  will  have  no  effect  unless  made  on  a  legal  and  suffi- 
cient consideration.^  But  an  agreement  made  before  the  time  of 
redemption  has  expired,  to  allow  further  time,  though  made  with- 
out consideration,  cannot  be  disregarded  after  the  time  of  redemp- 
tion has  passed,  but  will  be  enforced  by  the  court.*  But  if  the 
contract  be  oral,  and  moreover  be  incomplete  in  a  material  part, 
a  court  of  equity  will  not  specifically  enforce  it;  it  will  merely 
allow  redemption  within  a  reasonable  time,  if  it  be  shown  that  the 
debtor,  relying  upon  the  agreement,  refrained  from  exercising  the 
right  of  redemption  until  it  had  expired.^  There  is  nothing  in  the 
relation  of  the  parties  to  prevent  their  freely  contracting  with  each 
other,  or  to  prevent  the  mortgagee  or  the  purchaser  at  a  foreclosure 
sale  from  imposing  his  own  terms  as  a  condition  of  extending  the 
time  for  redeeming.*^  If  the  arrangement  is  such  that  the  foreclosure 
is  opened,  as  would  usually  be  the  case,  then  the  failure  of  the 
mortgagor  to  pay  the  debt,  or  to  perform  his  agreement,  whatever 
it  may  be,  strictly  within  the  extended  time  agreed  upon,  does  not 
work  an  absolute  forfeiture  of  his  right,  but  he  may  still  redeem 
within  a  reasonable  time.' 

Where  a  time  of  redemption  is  allowed  by  statute  after  a  sale 
under  a  power,  payments  made  after  the  foreclosure,  and  received 
with  the  clear  understanding  that  the  redemption  should  be  com- 
pleted by  payment  of  the  whole  sum  necessary  for  that  purpose 
within  the  year  allowed  by  the  statute,  are  in  affirmance  and  not  in 
avoidance  of  the  sale,  and  their  acceptance  does  not  operate  to  open 
the  sale  and  extend  the  time  of  redemption.^  Moreover,  a  court 
of  equity  has  no  power  to  extend   the  time  for  redemption   on  a 

1  Chase  v.  McLellan,  49  Me.  375.  which  the  mortgagor  had  a  legal  right  to 

2  McNew  V.  Booth,  42  Mo.  189.  redeem  had  then  expired,  but  his  judgment 
8  Smalley  v.  Hickok,  12  Vt.  153.  creditors  still  had  a  right  to  redeem,  and 
*  Davis  u.  Dresback,  81  111.  393;  Union  some  of  them   were  willing  to  do  so.     It 

Mut.  Life  Ins.  Co.  v.  Kirchoff,  133  111.  368,  was  held  that  there  was  sufficient  consider- 

27  N.  E.  Rep.  91,  93  ;  Schoonhoveu  v.  Pratt,  ation  for  such  agreement  in  the  mortgagor's 

25  111.  457  ;  Pensoneau  v.  Pulliam,  47  111.  promise  to  pay  the  amount  necessary  for  a 

58.                                            •  legal  redemption  by  a  judgment  creditor. 

After  a  mortgage  had  been   foreclosed,  Chytraus  r.  Smith  (111.),  30  N.  E.  Rep.  450. 

and  the  property  bought  by  the  mortgagee,  ^  Williams  v.  Stewart,  25  Minn.  516. 

he  agreed   to  assign  the  certiticate  of  sale  '^  Ross  v.  Sutherland,  81  111.  275. 

to  the  mortgagor  on  payment  of  the  amount  ^  Dodge  v.  Brewer,  31  Mich.  227. 

necessary    to    redeem.     The    time    within  ^  Cameron  v.  Adams,  31  Mich.  426. 

16 


WHO   MAY   REDEEM.  [§§  1054,  1055. 

statutory  foreclosure,  although  redemption  within  the  time  allowed 
for  it  by  statute  has  been  prevented  by  accident  and  misfortune,  or 
by  unavoidable  mental  and  physical  disorder.^ 

1054.  Advantage  of  an  irregular  foreclosure  must  be  taken 
within  a  reasonable  time.^  After  a  lapse  of  sixteen  years,  dur- 
ing which  time  the  mortgagor  has  had  knowledge  of  the  facts,  he 
will  not  be  allowed  to  redeem.^  Any  long  delay  in  bringing  a  bill 
to  redeem  must  be  satisfactorily  explained,  or  it  will  be  adjudged 
too  late.'* 

Where  a  mortgagee,  just  previous  to  the  completion  of  a  fore- 
closure by  possession,  promised  the  mortgagor  that  "  he  would  give 
him  some  time,  but  that  he  must  not  wait  long,  as  he  might  take 
advantage  of  the  mortgage,"  after  the  lapse  of  five  years  without 
payment  or  tender,  the  right  of  i-edemption  was  held  to  be  no 
longer  remaining.^  If  a  mortgagor  wishes  to  take  advantage  of  an 
irregularity  in  a  foreclosure  sale  made  in  a  suit  in  equity,  to  which 
he  was  a  party,  his  remedy  is  by  application  to  have  the  sale  set 
aside  and  a  new  sale  granted :  he  has  no  power  to  redeem,  although 
the  mortgagee  was  the  purchaser  at  the  sale.^ 

The  mortgagor's  right  to  redeem  is  unaffected  by  an  entry  to 
foreclose  made  by  the  heirs  of  the  mortgagee  and  possession  there- 
under for  more  than  three  years ;  and  the  mortgagor  may,  on  a  bill 
in  equity  against  them  and  an  administrator  of  the  mortgagee's 
estate,  redeem  the  land  from  the  mortgage,  and  compel  the  heirs  at 
law  to  account  for  the  rents  and  profits  to  the  administrator,  to  be 
applied  by  him  on  the  mortgage  debt." 

IV.    Who  may  redeem. 

1055.  In  general  any  party  in  interest  may  redeem.  To  sus- 
tain a  bill  to  redeem,  the  plaintiff  must  have  either  the  mortgagor's 
title  or  some  subsisting  interest  under  it.^     It  is  not  necessary  that 

1  Cameron  r.  Adams,  3 1  Mich.  426.     Mr.  2  Am.  Dec.  281  ;  Miilvcy  v.  Gibbons,  87  111. 

Justice   Campbell   said  :    "  Where   a   valid  367. 

legislative    act   has   determined   the  condi-  *  Askew  v.  Sanders,  84  Ala.  356,  4  So. 

tions  on  which  rights  shall  vest  or  be  for-  Rep.  167  ;  Sanders  i*.  Askew,  79  Ala.  433. 

feited,  and  there  has  been  no  fraud  in  con-  ^  Danforth  v.  Roberts,  20  Me.  307. 

ducting  the   legal   measures,  no    court  can  **  Brown  v.  Frost,  10  I'aige,  243,  rcvers- 

interpose  conditions  or  (lualifieatioiis  in  vio-  ing  lloff.  Ch.  41. 

lation  of   the  statute.     The  jiarties  have  a  ''   Haskins  v.  llawkes,  108  Mass.  379. 

right  to  stand  upon  the  terms  of  the  law."  ^  Lomax  v.  Bird,  1  Vern.  182  ;   Grant  v. 

■^  §§1161  a,  1922;  Clark  v.  Clough,    fi.")  Diiane,  9  Johns.  ."iOl  ;  Chamberlin  r.  Cliam- 

N.  H.  43,  23  Atl.  liep.  .526;  Meier  v.  Meier,  berlin,  12  J.  &  Sp.  116;   Boarnian  v.  Catlelt, 

105  Mo.  411,  16  S.  VV.  Rep.  223.  21  Miss.  149;  Towers  u.  Golden  Lumber  Co- 

•*  Bergen  v.   Bennett,    1   Caines    Cas.    1,  43  Mich.  468,  5  N.  W.  Rep.  656  ;  Ra])ier  «;• 

VOL.  II.                  2  27 


§  1055  a.]  REDEMPTION    OF   A   MORTGAGE. 

he  should  be  interested  in  the  whole  of  the  mortgaged  premises ;  if 
he  owns  the  equity  of  redemption  of  a  portion  of  them  only,  lie 
may  redeem  the  entire  premises.^  Neither  is  it  necessary  to  entitle 
one  to  redeem  that  he  should  have  an  interest  in  fee  in  the  prem- 
ises ;  the  right  mux  be  exercised  by  a  tenant  for  years.'-^  In  general 
.any  one  who  has  an  interest  in  the  land,  and  would  be  a  loser  by  a 
foreclosure,  is  entitled  to  redeem.^  His  interest  must  be  derived 
directly  or  indirectly  from  or  through  theriglit  of  the  mortgagor,  so 
that  he  is  in  privity  of  title  with  the  mortgagor,  and  an  owner  of 
a  part  of  his  original  equity,  or  of  some  interest  in  it.  If  he  is 
affected  by  the  mortgage,  he  may  redeem  ;  if  he  is  not  affected  by 
it,  there  is  no  occasion  for  his  redeeming,  and  he  is  not  allowed  to 
do  so.^ 

The  performance  of  a  contract  to  pasture  cattle  was  secured  by 
a  mortgage  given  to  the  owner  of  the  cattle  by  the  owner  of  the 
rancho  where  they  were  pastured.  A  creditor  of  the  mortgagee 
levied  upon  the  cattle,  and  purchased  them  at  the  sale  under  the 
execution,  but  there  was  no  seizure  or  sale  of  the  contract  to  pas- 
ture; therefore  it  was  held  that  he  had  no  right  to  redeem  the 
rancho  from  a  prior  mortgage.^ 

A  bill  to  redeem,  filed  by  several  persons  jointly,  cannot  be  main- 
tained if  the  ground  of  their  joint  claim  fails,  whatever  any  one  of 
them,  claiming  title  from  another  source,  might  be  entitled  to  in  a 
separate  proceeding.^ 

1055  a.  To  entitle  one  to  redeem  he  must  have  an  interest  in 
the  land,  derived  through  the  mortgagor,  so  that  in  effect  his 
interest  constitutes  a  part  of  the  mortgagor's  equity  of  redemption. 
If  his  interest  has  no  connection  with  the  title  held  by  the  mortgagor 
at  the  time  the  mortgage  was  foreclosed,  it  cannot  be  made  the  basis 
of  a  right  to  redeem.  Thus  the  purchaser  of  a  tax  title  has  no  right 
to  redeem."     But  a  purchaser  from   the  mortgagor  pending  redemp- 

Gulf  City  Paper  Co.  64  Ala.  330;  Butts  r.  149;   Purvis    v.    Brown,   4    Ired.   Eq.  413; 

Broughton,   72   Ala.  294;  Union   Mut.  L.  Sellwood  r.  Gray,  11  Oreg.  534,5  Pac.  Rep. 

Ins.  Co.  V.  White,  106  111.  67.  196. 

1  Boqut  V.  Cobiirn,  27  Barb.  230;  In  re  ^  Abadie  v.  Lobero,  36  Cal.  390. 

Willard,  5  Wend.  94.  6  Bigelow  v.  Booth,  39  Mich.  622. 

-  Averill  v.  Taylor,  8  N.  Y.  44.  •  Sinclair  v.  Learned,  51  Mich.  335,   16 

3  Pearce   v.   Morris,   L.    R.  5  Ch.  App.  N.  W.  Kep.  672.     Mr.  Justice  Cooler  said  : 

227,  229  ;  Boqut  i'.  Coburn,  27  Barb.  230 ;  "  He  was  not  mortgagor,  or  the  grantee  of 

Scott  r.  Henry,  13  Ark.  112  ;  Piatt  u.  Squire,  the  mortgagor,  or  in  any  manner  at  that 

12  Met.  494  ;  Farnum  ij.  Metcalf,    8  Cush.  time  interested  in  the  equity  of  redemption. 

46.  He  had  tax-titles,  it  is  true,  but  these  were 

*  Moore  r.  Beasom,  44  N.  H.  215  ;  Brewer  not  subject  to  the   mortgage.     There  was 

V.  Hyndman,  18  N.  H.  9  ;  Smith  v.  Austin,  no  offer  to  show  that  the  tender  was  made 

9  Mich.  465  ;  Boarman  v.  Catlett,  21   Miss,  for  or  in  the  interest  or  at  the  request  of 

18 


WHO  MAY  REDEEM.         [§§  1056,  1057. 

tion  has  the  right  to  redeem.^  The  mortgagor  may  redeem  through 
an  agent,  or,  if  the  mortgagor  be  not  living,  his  heir  may  redeem. 
Thus  where  a  mortgagor  had  left  home  some  months  before  his 
mortgiige  was  foreclosed,  and  his  father,  who  was  his  heir,  being 
unable  to  get  any  trace  of  his  son,  executed  a  deed  of  the  land  to 
another  son  that  he  might  redeem  it,  and  on  the  last  day  of  the 
year  for  redemption  he  paid  the  necessar\'^  amount  to  the  register  of 
deeds,  saying  that  he  redeemed  for  his  brother,  if  living  ;  if  not, 
for  himself, — in  a  suit  by  the  purchaser,  praying  that  the  deposit  of 
money  be  decreed  to  effect  no  redemption,  it  was  held  that  the  re- 
demption was  effectual ;  for  if  the  mortgagor  was  living  his  brother 
had  a  right  to  redeem  for  him,  and,  if  not,  to  redeem  for  himself  as 
grantee  of  the  mortgagor's  heir.^ 

1056.  A  mortgagor  who  has  conveyed  the  equity  of  redemp- 
tion by  a  warranty  deed  to  a  third  person  cannot  maintain  a  bill  to 
redeem  ; ''  nor  can  a  mortgagor  whose  right  in  equity  has  been  sold 
on  execution  redeem  the  land,  unless  he  has  first  redeemed  it  from 
the  execution  sale  within  the  time  allowed,  even  though  the  pur- 
chaser of  the  equity  does  not  redeem  ;  *  but  if  the  purchaser  re- 
deems the  mortgage  within  the  time  allowed  the  judgment  debtor 
to  redeem  from  the  execution  sale,  the  latter  may  then  within  that 
time  redeem  from  the  execution  sale  by  paying  the  amount  which 
may  have  been  satisfied  upon  the  execution  by  the  sale,  and  may 
afterwards,  at  any  time  before  the  right  to  redeem  is  barred  by 
lapse  of  time,  redeem  from  the  mortgage  in  the  same  way  that  he 
might  have  redeemed  from  the  original  mortgagee  had  there  been 
no  sale  on  execution.^  A  sale  of  the  equity  of  redemption  upon  an 
execution  obtained  by  the  holder  of  the  mortgage  for  the  mortgage 
debt  is  void,  and  the  mortgagor  may  redeem  as  if  no  such  sale  had 
been  made.*^ 

But  a  mortgagor  who  has  conveyed  the  land  subject  to  the  mort- 
gage, and  has  expressly  reserved  a  lien  for  the  purcbase-money,  may 
redeem  by  virtue  of  such  interest.' 

1057.  A  mortgagor  whose   equity   of    redemption   has  been 

the  mortgagor.     It  was  tlierefore  made  by  *  Ingersoll  v.  Sawyer,  2  Pick.  276.     See 

one  who,  as   between    the    mortgagor  and  Peahody  v.  I'atten,  2  Pick.  517  ;  Bigelow  r. 

mortjiagee,  was  a  stranger  to  their  dealings  Willson,  1  Pick.  485. 

and  an  intermeddler."  &  Atkins  v.  Sawyer,  1   Pick.  .351,  354,  11 

J  ])odge  V.  Kennedy,  9.3   Mich.  547,  53  Am.  Dec.  188. 

N.  W.  Rep.  795.  «  Atkins  v.  Sawyer,  1    Pick.  351,  11  Am. 

"  Squire   v.    Wright,    85    Mich.    76,   48  Dec.  188;  Washburn  «;.  Goodwin,  17   Pick. 

N.  W.  Hep.  286.  137. 

=*  Phillips  V.  Lcavitt,  54  Me.  405  ;    'True  ''  Pearcy  y.  Tate,  91  Tcnn.  478,  19  S.  W. 

V.  Haley,  24  Me.  297.  Rep.  323. 

19 


§§  1058,  1059.]     REDEMPTION  OF  A  MORTGAGE. 

foreclosed  by  a  second  mortgagee  cannot  redeem  the  first  mort- 
gage, because  his  title  is  then  wholly  extinguished  and  vested  in 
the  second  mortgagee,  who  alone  is  entitled  to  redeem  the  first 
mortgage.^  But  if  the  first  mortgagee  forecloses  the  mortgage 
without  making  the  second  mortgagee  a  party  to  the  proceeding, 
the  second  mortgagee  may  redeem  the  first  mortgage,^  and  the 
mortgagor  still  having  the  right  to  redeem  the  second  mortgage 
may,  by  so  doing,  acquire  the  right  of  the  second  mortgagee  to 
redeem  the  first. ^ 

1058.  Where  a  mortgage  is  conditioned  for  the  support  of 
the  mortgagee  for  life,  a  grantee  of  the  mortgagor,  in  order  to 
redeem,  must  allege  and  prove  that  the  transfer  to  him  was  made 
with  the  consent  of  the  mortgagee;  though  it  need  not  appear  that 
such  consent  was  in  writing.*  The  purchaser  of  an  estate  subject 
to  such  a  mortgage  is  sometimes  allowed  to  redeem  on  paying  a 
compensation  in  money  for  the  past  neglect  of  the  mortgagor,  and 
an  allowance  in  money  for  the  future.** 

1059.  In  general,  only  the  mortgagor  and  those  who  hold  a 
legal  title  under  him  can  redeem.^  An  equitable  title  does  not 
give  this  right ;  and  therefore  one  holding  a  bond  for  a  conveyance 
of  land  by  the  mortgagor  cannot  maintain  a  bill  to  redeem."  He 
may  be  authorized,  however,  to  use  the  name  of  the  holder  of  the 
legal  title  to  pursue  the  remedy  in  his  name. 

A  trustee  who  holds  the  legal  estate,  or  some  interest  in  it,  is  the 
proper  party  to  redeem  ;  though  the  persons  beneficially  interested 
may  redeem  upon  the  refusal  of  the  trustee  to  do  so.^ 

One  who  has  assigned  a  mortgage  as  security  for  his  debt  has  a 
right  to  redeem  it  on  paying  the  debt.     If  his  assignee  has  fore- 

1  Colwell  V.  Warner,  36  Conn.  224.  Atl.  Rep.  771.     The  judgment  creditor  then 

2  Loomis  V.  Knox,  60  Conn.  343,  22  Atl.  foreclosed  his  lien  on  the  tract  of  land  not 
Rep.  771 ;  Beers  v.  Broome,  4  Conn.  247  ;  covered  by  the  mortgage,  which  was  worth 
Smith  V.  Chapman,  4  Conn.  344  ;  Swift  v.  more  than  the  judgment  debt.  It  was  held 
Edson,  5  Conn.  .531  ;  Mix  v.  Cowles,  20  that  such  foreclosure  operated  as  a  redemp- 
Conn.  420;  Thompson  v.  Chandler,  7  Me.  tion  from  the  judgment  lien  on  the  mort- 
377  ;  Moore  v.  Bcasom,  44  N.  H.  215.  gaged  tract,  thus  giving  the  mortgagor  the 

3  Goodman    v.   White,    26    Conn.   317;  right  to  redeem  from  the  mortgage. 
Loomis  V.  Knox,  GO  Conn.  343,  22  Atl.  Rep.  *  See   §§  380-395  ;   Bryant  ;;.   Jackson, 
771.  .')9    Me.  le.");  Bryant   v.    Erskine,   5.5    Me. 

A  judgment  lien  may  be  regarded  as  a  153. 

statutory    mortgage.     The   owner    of    two  ^  gee  §  395  ;  Austin  v.  Austin,  9  Vt.  420. 

tracts   of    land    mortgaged   one   of    them.  6  Lomax  v.  Bird,  1  Vern.  182;  Grant  v. 

Afterwards   a  creditor  placed  a  judgment  Duane,  9  Johns.  591. 

lien   on   each  tract.     The  mortgagee  fore-  "  McDougald   v.  Capron,  7    Gray,    278. 

closed    his  mortgage   without    making  the  The  statute  limits  the  power  of  the  court  to 

judgment  creditor  a  parly  to  the  proceed-  thos^  having  a  legal  right, 

ings.     Loomis  v.   Knox,  60  Conn.  343,  22  ^  Fray  v.  Drew,  11  Jur.  N.  S.  130. 
20 


WHO   MAY   REDEEM.  [§  1060. 

closed  the  mortgage  and  purchased  the  premises,  he  may  still  re- 
deem.^  But  the  mortgagee  may  insist  that  the  assignee,  who  holds 
the  legal  title  to  the  property,  shall  be  made  a  party  to  the  suit;^ 
though  the  suit  may  be  brought  in  the  name  of  the  assignee  for  the 
benefit  of  both. 

1060.  The  grantor  by  an  absolute  deed  which  is  merely  security 
for  a  debt,  and  therefore  a  mortgage,  has  the  same  right  to  redeem 
as  a  mortgagor  in  a  formal  mortgage,  so  long  as  the  grantee  retains 
the  property  ^  and  the  money  secured  by  the  deed  is  payable  ;  *  and 
after  he  has  sold  it  to  a  bond  fide  purchaser  from  whom  redemption 
cannot  be  made,  he  is  still  liable  to  account  to  the  grantor  for  the 
value  of  the  land  at  the  time  it  should  have  been  restored  to  him.^ 
Redemption  may  also  be  had  against  the  assignee  of  the  gran- 
tee, in  case  he  had  notice  that  the  delivery  of  the  defeasance  was 
evaded  by  fraud  or  otherwise,  or  that  the  transaction  was  in  fact  a 
mortgage.*^ 

If  it  appears  that  the  absolute  deed  was  really  a  sale,  or  that  by 
agreement  of  parties,  and  upon  an  adequate  consideration,  what 
was  really  a  mortgage  at  first  was  afterwards  changed  into  a  sale, 
no  redemption  will  be  permitted.  Evidence  of  the  acts  and  decla- 
rations of  the  parties  is  admissible  to  show  the  original  intention 
and  the  subsequent  agreement  as  well."  But  by  some  courts  it  is 
held  in  such  case  that  the  plaintiff  cannot  be  relieved  on  the  mere 
proof  of  the  grantee's  declarations.  There  must  be  proof  of  fraud, 
ignorance,  or  mistake,  or  of  facts  inconsistent  with  the  idea  of  an 
absolute  purchase.^  It  has  been  shown  elsewhere  that  the  rule  in 
the  several  States  as  to  the  admission  of  parol  evidence  to  establish 
the  relation  of  mortgagor  and  mortgagee,  where  the  transaction  is 
in  the  form  of  an  absolute  deed,  is  not  uniform;^  and  there  is 
the  same  want  of  uniformity  as  to  the  admission  of  parol  evidence 
to  show  that  this  relation,  once  established,  has  been  given  up  by  a 
surrender  of  the  right  of  redemption.  In  general  it  may  be  said 
that  the  same  degree  of  evidence  is  required   to  establish  the  sur- 

1  Slee  V.   Manhattan   Co.    1    Paige,  48;  '"  Meehan  w.  Forrester,  52  N.  Y.  277. 
Iloyt  r.  Martense,  16  N.  Y.  231,  reversing  6  Daniels  v.  Alvord,  2  Root,  196  ;  Belton 
8  liow  Pr.  196.  V.    Avery,    2  Root,   279,    1  Am.   Dec.    70. 

2  Wintcrbottom     v.    Tayloe,     2     Drew,  See,  also,  Minor  v.  Woodbridge,  2  Root, 
279.  274. 

3  Vanderhaise  v.  Hugues,  13  N.  J.  Eq.  "  Watkins  i'.  Stockett,  6  liar.  &  J.  435. 
410  ;  Ballard  v.  Jones,  6  Humph.  455  ;  Still  8  Sowell  v.  Barrett,  Busb.  Eq.  50 ;  Lewis 
V.  Buzzell,  60  Vt.  478.  v.  Owen,  1  Ired.  Eq.  290;  Allen  v.  MeRae, 

*  Ganceart  v.  Henry  (Cal.),  .33  Pac.  Rep.    4  Ired.  325. 
92.  3  §§  282-342. 

21 


§  1061.]  REDEMPTION  OF  A  MORTGAGE.      ' 

render  of  the  right  that  is  required  in  tlie  same  State  to  establish 
the  existence  of  the  right. 

A  conveyance  by  a  debtor  in  trust  to  secure  his  debt  is  a  mort- 
gage, to  which  the  right  of  redemption  is  incident.^ 

In  case  of  a  mortgage  in  the  form  of  an  absolute  deed  in  a  suit 
to  redeem,  the  court  will  decree  a  reconveyance  of  the  property 
upon  the  payment  of  the  debt.^  If  the  conveyance  was  to  secure 
a  general  indebtedness,  and  neither  party  supposed  the  land  would 
be  redeemed,  upon  a  redemption  by  an  execution  creditor  of  the 
mortgagor  the  mortgagee  should  be  allowed  also  for  the  value  of 
improvements  made  by  liim.^  The  grantee  by  an  absolute  deed, 
apparently  having  an  absolute  title,  may  convey  the  property  to  a 
bond  fide  purchaser,  discharged  of  all  right  of  redemption,  and  in 
such  case  the  only  remedy  of  the  mortgagor  is  a  personal  one  against 
the  mortgagee.*  The  estate  is  discharged  of  the  right  to  redeem. 
Tiie  length  of  time  that  has  elapsed  after  the  making  of  an  ab- 
solute deed,  before  any  steps  are  taken  towards  redeeming,  is  an 
important  element  in  determining  whether  the  grantor  has  the  right 
to  redeem.^ 

On  redemption  of  property  so  conveyed,  the  grantor  redeeming 
will  be  allowed  credit  for  the  purchase-price  of  a  portion  of  the  land 
sold  by  his  grantee,  which  it  was  contemplated  was  to  be  applied 
on  the  debt,  although  only  a  part  of  such  purchase-price  was  re- 
ceived by  the  grantee,  and  he  was  obliged  to  foreclose  his  mortgage 
for  a  part  of  the  purchase-price  and  buy  in  the  land.° 

1061.  An  assignee  of  the  equity  of  redemption  may  gener- 
ally redeem,  whether  he  holds  under  a  voluntary  assignment  or  by 
an  assignment  in  law  •,"'  and  it  is  immaterial  that  the  land  is  in  the 
possession  of  a  disseisor.^     It  is  not  necessary  for  such  assignee  to 

1  Chowning  v.  Cox,  1  Rand.  306,10  Am.  6  Mellish  v.  Robertson,  25  Vt.  603.  See 
Dec.  530 ;  Pennington  v.  Hauby,  4  Munf.    §  330. 

140.     See  §  332.  «  Clark  v.  Woodruff  (Mich.),  51   N.  W. 

2  Sherwood  v.  Wilson,  2   Sweeny,  684;    Rep.  357. 

Skinner  v.  Miller,  5  Litt.  84;  Thompson  v.  ^  Thorne  v.  Thorne,  1  Vern.  182;   White 

Campbell,  6  T.  B.  Mon.  120.     As  to  form  v.  Bond,  16  Mass.  400;  Dunlap  v.  Wilson, 

of  decree,  see  L.  R.  5  Ch.  App.  229.  32  III.  517  ;  Scott  v.  Henry,  13  Ark.  112 ; 

■■^  Blair  v.  Chamblin,  39  111.  521,  89  Am.  Cohn  v.  Hoffman  (Ark.),  19  S.  W.  Rep.  233. 

Dec.  322,  The  redemption  of  a  homestead  by  an  as- 

*  Whittick  V.  Kane,  1  Paige,  202 ;  White  signee  in  bankruptcy  does  not  inure  to  the 

I'.  Moore,  1  Paige,  551  ;  Berdell  v.  Berdell,  benefit  of  the  bankrupt.     Swenson  v.  Hal- 

33  Hun,  535  ;  Meehan  v.  Forrester,  52  N.  berg,  1  Fed.  Rep.  444. 

Y.  277  ;    Minton  v.  N.  Y.  Elevated  R.   R.  8  Wellington  v.  Gale,  13  Mass.  483,  488, 

Co.  130  N.  Y.  332,  29  N.  E.  Rep.  319.     See  per  Parker,  C.  J.     Otherwise  in  North  Car- 

§§  339-342.  olina  when  the  bill  is  against  the  mortgagor 

22 


WHO   MAY   REDEEM.  [§§  1062,  1063. 

prove  that  the  assignment  was  made  on  a  valuable  consideration. 
He  establishes  primd  facie  his  right  to  redeem  by  alleging  and 
proving  the  existence  of  the  mortgage  and  his  ownership  of  the 
equity  of  redemption. ^ 

The  mortgagor's  assignee  is  under  no  obligation  to  redeem  from 
a  prior  mortgage,  unless  he  has  expressly  or  impliedly  agreed  to  do 
so.  If  he  has  bought  subject  to  the  mortgage  without  assuming  it, 
or  if  he  has  purchased  the  equity  of  redemption  at  an  execution 
sale,  he  has  the  right,  if  he  chooses  to  do  so,  to  redeem,  but  he  can- 
not be  compelled  to  do  so.^ 

1062.  Upon  the  death  of  the  mortgagor  or  owner  of  the 
equity  of  redemption  his  heir  at  law  or  devisee  may  redeem.^ 
If,  however,  the  mortgagor  devised  the  equity  of  redemption,  the 
devisee  is  the  proper  party  to  redeem,*  and  in  that  case  the  heir 
at  law  need  not  be  made  a  party  unless  he  contests  the  will.  Dur- 
ing the  pendency  of  a  suit  to  establish  the  will,  an  heir  cannot 
make  a  sale  of  the  equity  which  will  be  valid  against  a  devisee, 
or  which  will  prevent  his  redeeming  after  his  right  under  the  will 
is  established.^  A  legatee  whose  legacy  is  made  a  charge  upon 
the  mortgaged  estate  may  redeem.  If  land  be  specifically  devised, 
it  is  presumed,  in  the  absence  of  an  expressed  intention  to  the  con- 
trary, that  the  land  is  to  be  exonerated  from  all  mortgages  placed 
upon  it  by  the  testator  ;  and  the  general  rule  prevails  even  when 
several  parcels  are  devised  to  different  persons,  and  the  testator 
has  directed  the  removal  of  the  incumbrances  as  to  some  of  the  par- 
cels and  not  as  to  others.^  Consequently  in  such  case  the  executor 
should  redeem. 

The  guardian  of  an  infant  heir  may  redeem,  and  so  may  the 
guardian  of  an  insane  person." 

1063.  A  part-owner  or  tenant  in  common  of  an  equity  of 
redemption  may  redeem,^  but  he  cannot  require  other  part-owners 
to  join  with  him  in  redeeming  from  the  mortgage.^  If  he  elects 
to  redeem,  he  must  pay  the  whole  amount  due  on  the  mortgage, 

as  well  as  the  mortgagee.     Medley  v.  Mask,  '^  Richardson  v.  Hall,  124  Mass.  228. 

4  Ired.  Eq.  339.  ^  Powell   Mort.   285   a,  note;  Pardee  v. 

1  Barnard  v.  Cushman,  S.'j  111.  451.  Van  Anken,  3  Barb.  534. 

■•^  Rogers  v.  Meyers,  G8  111.  92.  ^  Howard  v.  Harris,  1  Vern.  33  ;  Pearce 

•^  Pym  V.  Bowreman,  3  Swanst.  241,  n. ;  v.  Morris,  L.  R.  5  Ch.  App.  227;  Taylor  v. 

Zaegel   v.  Kuster,  51   Wis.   31 ;    Hunter  v.  Porter,  7    Mass.  355 ;  McPherson  v.  Hay- 

Uennis,  112  111.  568;  Butts  v.  Brougliton,  ward,  81  Me.  329,  17  Atl.  Rep.  164. 

72  Ala.  294  ;  Chew  v.  Hyman,  10  Biss.  240.  »  Kx  parte  Willard,  5  Wend.  94  ;  Bo(iut 

*  Lewis    V.   Nangle,    2    Ves.    Sen.   431;  y.  Coburn,  27  Barb.  230;  Hubbard  c.  As-cut- 
Philips  V.  Hclc,  Cii.  R.  190.  ney  Mill  Dam  Co.  20  Vt.  402,  1  Am.  Dec. 

^  Finch  V.  Newnham,  2  Vern.  216.  41 ;  Gibson  v.  Creliore,  5  Pick.  146. 

23 


§  1063.]  REDEMPTION   OF   A   MORTGAGE. 

and  bold  it  to  his  own  use,  unless  the  othei'  part-owners  come  in 
and  pay  their  proper  contributory  shares.^  Nor  does  it  make  any 
difference  that  the  bolder  of  the  mortgage  is  also  a  part-owner  of 
the  equity  of  redemption  in  common  with  the  mortgagor.  Such 
mortgagee  is  not  bound  to  receive  a  part  of  the  mortgage  debt, 
and  he  may  wholly  decline  paying  anything  toward  the  redemp- 
tion ;  though  he  may,  like  any  part-ownei-,  at  his  election,  con- 
tribute to  the  payment  of  the  redemption-money  and  share  the 
benefits  of  the  payment.^ 

A  mortgage  of  a  railroad  company  covering  the  whole  line  of  its 
road  lying  in  two  States  may  be  redeemed  by  a  purchaser  upon  ex- 
ecution of  the  equity  of  redemption  of  the  part  of  the  road  situate 
in  one  State. ^ 

One  tenant  in  common  of  an  equity  of  redemption  may  redeem 
in  order  to  protect  his  own  interest ;  "^  but  by  so  doing  he  is  not 
entitled  to  the  whole  property  to  the  exclusion  of  his  co-tenant. 
The  redemption  by  one  inures  to  the  benefit  of  the  other  so  far 
as  to  save  a  forfeiture.  The  co-tenant  may  be  compelled  to  pay 
his  proportion  of  the  debt.  The  tenant  who  redeems  becomes  sub- 
rogated to  the  right  of  the  mortgagee,  and  if  his  co-tenant  does  not 
pay  his  share,  he  may  be  foreclosed  of  his  right  to  redeem.  The 
tenant  in  possession,  and  in  receipt  of  the  whole  of  the  rents,  is 
subject  to  account  with  his  co-tenant.''  But  neither  has  an  equi- 
table right  to  redeem  the  whole  and  keep  the  other  from  sharing  in 
the  redemption.^ 

In  like  manner,  where  land  is  conveyed  to  two  persons,  one  of 
whom  pays  his  half  of  the  purchase-money,  and  joins  with  his  co- 
tenant  in  a  mortgage  of  the  whole  estate  to  secure  the  payment 
of  the  other  half,  and  afterwards  releases  his  interest  to  the  mort- 
gagee, his  co-tenant  cannot  redeem  without  paying  the  whole 
amount  of  the  mortgagee.^ 

Neither  can  one  tenant  in  common  redeem  his  share  only  of  the 
estate,  as  this  would  be  in  violation  of  the  principle  that  a  mortgage 
must  be  wholly  redeemed  or  not  at  all ;  ^  and  a  partition  of  the 

1  Taylor  v.  Porter,  7  Mass.  355;  Calkins  Gibson  v.  Crehore,  5  Pick.  146, 152  ;  Young 

V.  Munsel,  2  "Root,  333;  Lyon  v.  Robbins,  r.  Williams,  17  Conn.  393;  Lyon  v.  Rob- 

45  Conn.  513.  bins,   45    Conn.   513;  Kingsbury  v.  Buck- 

^  Merritt   v.   Hosmer,  11    Gray,  276,  71  ner,    70   111.    514;    McLauglilin   v.   Curtis, 

Am.  Dec.  713;  Lyon  v.  Robbins,  45  Conn.  27  Wis.  644;  Carithers  v.  Stuart,  87  Ind. 

513.  424. 

3  Wood  V.  Goodwin,  49  Me.  260,  77  Am.  ^  Seymour  v.  Davis,  35  Conn.  264. 

Dec.  259.  "  Crafts  v.  Crafts,  13  Gray,  360;  Laylin 

*  Wynne  v.  Styan,  2  Ph.  303,  306.  v.  Knox,  41  Mich.  40. 

6  Bentley  v.  Bates,  4  Y.  &  C.  Exch.  182  ;  »  Powell  Mort.  342  a,  n. 

24 


WHO   MAY    REDEEM.  [§  1064. 

estate  with  his  co-tenant,  unless  consented  to  by  the   mortgagee, 
does  not  affect  him,  and  his  consent  cannot  be  demanded.^ 

A  person  who  has  an  interest  as  a  partner  in  the  mortgaged  prop- 
erty may  maintain  an  action  to  redeem,  and  he  is  entitled  to  do  so 
under  the  general  principles  of  equity  jurisprudence.^ 

1064.  A  subsequent  mortgagee  may  redeem  from  a  prior 
mortgagee  at  any  time  after  the  maturity  of  the  prior  mort- 
gage ;  3  but  if  he  brings  a  bill  to  redeem  within  the  time  limited  by 
statute  and  fails  to  prosecute  it,  the  owner  of  the  equity  of  redemp- 
tion cannot,  after  that  time  has  expired,  maintain  a  bill  to  be  let  in 
to  prosecute  the  bill  to  redeem  brought  by  such  mortgagee.  The 
junior  mortgagee  is  under  no  obligation  to  redeem  the  prior  mort- 
gage, or  to  prosecute  a  suit  for  the  purpose,  or  to  do  any  act  to  pre- 
vent the  first  mortgagee  from  foreclosing.*  But  a  junior  mortgagee 
will  not  be  allowed  to  redeem  when  it  appears  that  no  consideration 
was  given  for  his  mortgage,  so  that  it  is  not  a  valid  security,^ 

The  language  of  most  of  the  cases  is  broad  enough  to  establish 
tlie  doctrine  that  a  junior  mortgagee,  simply  as  such  and  under 
all  circumstances,  has  the  absolute  right  to  pay  off  or  redeem  from 
a  senior  mortgage  past  due.  But  it  is  intimated  in  a  few  cases 
that  such  a  right  may  not  exist  when  the  senior  mortgagee  desires 
to  hold  his  mortgage  as  an  investment,  and  does  not  seek  or 
threaten  to  enforce  its  collection.  In  such  case  the  junior  mort- 
gagee may  be  in  no  danger  of  loss  or  embarrassment,  and  thus  may 
not  have  any  equitable  right  to  disturb  or  interfere  with  the  senior 
mortgage  to  which  he  is  not  a  party,  and  for  the  payment  of  which 
he  is  in  no  way  liable.^     This  question  would  rarely  arise,  because 

1  Watkins  v.  Williams,  3  Mac.  &  G.  622,  frey,41  Mich.  719  ;  Spurgin  v.  Adamson,  62 
16  Jur.  181.     Sec  §  706.  Iowa,  661,  18  N.  W.  Hep.  293  ;  Kalscheuer 

2  Emerson  v.  Atkinson  (Mass.),  34  N.  E.  v.  Upton,  6  Dak.  449,  43  N.  W.  Rep.  816. 
Rep.  516;  Dyer  v.  Clark,  5  Mete.  562;  In  South  Carolina  it  is  provided  by  stat- 
Shanks  v.  Klein,  104  U.  S.  18;  Davis  v.  ute  that  subsequent  mortgagees,  although 
Wetlierell,  13  Allen,  60;  Briggs  v.  Davis,  they  have  not  recorded  their  mortgages, 
108  Mass.  322;  Lamb  v.  Montague,  112  may  redeem  prior  mortgages ;  but  that  any 
Mass.  352  ;  Bacon  v.  Bowdoin,  22  Pick.  401  ;  person  who  shall  mortgage  the  same  lands 
May  V.  Gates,  137  Mass.  389,  391.  a  second  time,  while  the  former  mortgage  is 

3  Bigelow  V.  Willson,  1  Pick.  493  ;  Haines  in  force  and  not  discharged,  slmll  have  no 
V.  Beach,  3  Joints.  Ch.  459,  460;  Pardee  v.  power  or  liberty  of  redemption,  in  equity  or 
Van  Anken,  3  Barb.  534;  Jenkins  v.  Con-  otherwise.     R.  S.  1873,  p.  424. 

tinental  Ins.  Co.  12  How.  Pr.  66;  Frost  v.  *  Mclntier  v.  Shaw,  6  Allen,  83. 

Yonkers  Sav.  Bank,  70  N.  Y.  553,  26  Am.  ^  Skinner  v.  Young,  80  Iowa,  234,  45  N. 

Rep.  627;  Dings  v.  Parshall,  7  Hun,  522;  W.  Rep.  889. 

Scott  V.  Henry,  13  Ark.   112;  Kimmell  v.  '^  Frost  i-.  Yonkers  Sav.  Bank,  70  N.  Y. 

Willard,  1   Dougl.   (Mich.)  217  ;   Sager  v.  553,  557,  per  Earl,  J.,  26  Am.  Rep.  627. 

Tnppcr,  35  Mich.  134;  Hill  ii.  White,  1  N.J.  And  to  like  effect  see  Bigelow  v.  Cassedy, 

Eq.  435;  Wiley  v.   Ewing,  47   Ala.   418  ;  26  N.  J.  Eq.  557,  562,  per  Van  Syckel,  J. 

Morse  v.  Smith,  83  111.  396  ;  Lamb   v.  Jef-  25 


§  1065.]  REDEMPTION   OF   A   MORTGAGE. 

generally,  if  the  property  is  ample  to  satisfy  the  junior  mortgagee, 
he  will  foreclose  his  mortgage  instead  of  making  a  farther  invest- 
ment in  the  first  mortgage.  If  the  holder  of  the  first  mortgage  is 
seeking  to  enforce  his  security,  there  can  be  no  question  of  the  right 
of  the  holder  of  the  junior  mortgage  to  redeem.^ 

This  right  of  a  junior  mortgagee  to  redeem  is  a  common  law- 
right,  and  is  entirely  independent  of  a  right  of  redemption  given 
to  creditors  and  limited  to  a  specified  time.  It  applies  to  deeds 
of  trust  to  secure  the  payment  of  debts  as  well  as  to  mortgages 
proper.2  The  junior  mortgagee  may  redeem  although  liis  mort- 
gage be  of  an  estate  subject  to  a  homestead  right,  and  therefore 
only  a  reversionary  interest  after  the  expiration  of  that  right.^  He 
may  redeem  although  the  prior  mortgagee  has  since  the  making 
of  the  second  mortgage  obtained  a  conveyance  of  the  mortgagor's 
equity  of  redemption.* 

As  between  several  persons  entitled  to  redeem,  redemption  will 
be  decreed  according  to  the  priority  of  the  claimants.^ 

A  subsequent  mortgagee,  who  has  assigned  his  mortgage  as  col- 
lateral security  for  a  debt  of  his  own,  may  redeem  the  mortgaged 
premises  from  a  sale  under  a  prior  mortgage;  and  his  redemption 
inures  to  the  benefit  of  his  assignee.  He  has  such  an  interest  in 
the  property  as,  with  the  consent  of  the  holder  of  the  certificate  of 
foreclosure  sale,  gives  him  the  right  to  redeem  in  order  to  protect 
that  claim. ^ 

Where  a  third  mortgagee  forecloses  his  mortgage  and  bids  in 
the  property  at  the  sale,  and  then  redeems  from  a  first  mortgagee 
who  also  holds  the  second  mortgage,  and  had  foreclosed  under  the 
first  mortgage  and  had  bid  in  the  property  at  the  sale,  the  third 
mortgagee  redeems,  not  at  as  a  junior  creditor,  but  as  owner,  stand- 
ing in  the  shoes  of  the  mortgagor  ;  and  his  redemption  does  not  cut 
out  the  second  mortgage,  but  this,  if  not  redeemed,  is  advanced  to 
the  rank  of  a  first  lien." 

1065.  A  tenant  for  lif e,^  or  a  tenant  in  tail,^  may  redeem  ;  as 

1  Frost  V.  Yoiikers  Sav.  Bank,  70  N.  Y.  ^  Manning  v.  Markel,  19  Iowa,  103. 
553,  557  ;  Ellsworth  v.  Lockwood,  42  N.  Y.  '^  Dickerman  v.  Lust,  66  Iowa,  444,  23  N. 
89 ;  Norton  v.  Warner,  3  Edw.  Ch.  106.  W.  Rep.  916. 

2  Wiley  r.  Ewing,  47  Ala.  418;  Beach  v.  ^  Wicks  v.  Scrivens,  1  Johns.  &  II.  215; 
Shaw,  57  111.  17;  Hodgen  v.  Guttery,  58  Ay nsly  y.  Reed,  1  Dick.  249  ;  Evans  y.  Jones, 
111.  431.  Kay,  29  ;  Lamson  v.  Drake,  105  Mass.  564 ; 

3  Smith  V.  Piovin,  4  Allen,  516.  Ohmer  v.  Boyer,  89  Ala.  273,  7   So.  Rep. 
*  Rogers  v.  Herron,  92  111.  583.  663;  Butts  v.  Broughton,  72  Ala.  294. 

5  Moore  v.  Beasom,44  N.  H.  215  ;  Brewer        ^  Playford  v.  Playford,  4  Hare,  546. 
V.  Hvndman,  18  N.  H.  9. 

26 


WHO  MAY  REDEEM.         [§§  1066,  1067. 

may  also  a  remainder-man,  or  reversioner,^  though  the  life  tenant  is 
entitled  to  the  first  option,^  and  by  taking  an  assignment  of  the 
mortgage  himself  may  prevent  a  redemption  by  the  remainder- 
man ;  3  but  he  cannot  compel  the  remainder-man  to  redeem  him. 
So,  also,  one  who  has  a  life  estate  in  remainder,  or  other  contingent 
interest,  may  redeem.* 

1066.  A  tenant  for  years  may  redeem^  although  his  lease, 
being  made  after  the  mortgage,  and  good  against  the  mortgagor,  is 
not  good  against  the  mortgagee  ;  ^  and  although  the  lessor,  being  also 
the  mortgagor,  has  released  his  equity  of  redemption  to  the  holder 
of  the  mortgage.^  A  lessee  of  the  mortgagor  having  a  lease  valid 
against  him,  though  not  binding  upon  the  mortgagee  for  the  reason 
that  it  was  made  after  the  mortgage,  has  a  redeemable  interest,^ 
and  it  does  not  matter  that  the  leasehold  premises  are  only  a  part  of 
the  mortgaged  estate.^ 

It  has  been  held,  also,  that  a  person  in  possession  of  the  land 
under  a  verbal  contract  to  buy  it  may  redeem  ;  ^^  and  a  person  hav- 
ing only  an  easement  in  the  land  may  redeem.^i 

1067.  A  widow  who  has  joined  in  a  mortgage  in  release  of 
dower  may  redeem,  for  she  is  entitled  to  dower  as  against  every 
person  except  the  mortgagee  and  those  claiming  under  himT^^  Jt  is 
only  when  the  mortgage  debt  is  paid,  or  when  the  mortgagee  does 
not  object,  that  her  dower  can  be  assigned.  But  she  can  redeem 
without  a  legal  assignment  of  it.^^  jf  any  person  claiming  under 
her  husband  redeems,  she  may  repay  her  proportion  of  the  amount 
so  paid,  and  have  her  dower  in  the  whole  estate.  But  if  she  her- 
self redeems  from  the  mortgagee,  or  from  his  assignee,  she  must 
pay  the   whole    amount   due   on   the    mortgage.^*     She  has  an  un- 

1  Stevenson  v.  Edwards,  98  Mo.  G22,  12  Met.  591.  See,  however,  §  1059,  and  Mc- 
S.  W.  Rep.  255.  Dougald  v.  Capron,  7  Gray,  278. 

2  Ravald  v.  Russell,  Younge,  9.  i-  Opdyke  v.  Bartles,  11  N.  J.  Eq.  133  ; 
^  Raffety  v.  King,  1  Keen,  601.  Me  Arthur  v.  Franklin,  16  Ohio  St.  193  ; 
<  Davis   V.  Wetherell,    13   Allen,  60,  90    Denton  v.  Nanny,  8  Barb.  618;  Trenholm 

Am.  Dec.  177;  Ravald  v.  Russell,  Younge,  v.  Wilson,  13  S.  C.  174;  Butts  v.  Brough- 

9  ;  Stevenson  v.  Edwards,  98  Mo.  622, 12  S.  ton,  72  Ala.  294  ;  Posten  v.  Miller,  60  Wis. 

W.  Rep.  255.                                       ,  494,  19  N.  W.  Rep.  540;   Phelan  v.  Fitz- 

■'■'  Hamilton  v.  Dobbs,  19  N.  J.  Eq.  227  ;  patrick  (Wis.),  54  N.  W.  Rep.  614. 

Averill   v.  Taylor,  8   N.  Y.  44 ;  Bacon    v.  ^^  Henry's  case,  4   Cush.  257  ;   Eaton  v. 

Bowdoin,  22  Rick.  401.  Simonds,  14  Pick.  98  ;  Gibson  v.  Creliore,  5 

6  Keech  v.  Hall,  1  Doug.  21.  Pick.  146  ;  Poabody  v.  Patten,  2  Pick.  517, 

"  Bacon  v.  Bowdoin,  2  Met.  091.  519. 

8  Keech  v.  Hall,  1    Doug.  21,  per  Lord  "  See  §  1075.  Massachusetts:  Newton  y. 

Mansfield  ;  Averill  v.  Taylor,  8  N.  Y.  44.  Cook,   4   Gray,  46 ;    Gibson   v.   Crchore,  5 

•'  Averill  v.  Taylor,  8  N.  Y.  44.  Pick.  146  ;  McCabe  v.  Bellows,  7  Gray,  148, 

^"  Lowry  v.  Tew,  3  Barb.  Ch.  407.  66  Am.    Dec.  467  ;    Brown   v.   Lapliam,  3 

"  Bacon  v.  Bowdoin,  22  Pick.  401,  405,2  Cush.  551,  554.     The  decisions  in  Gibson  v. 

27 


§  1067.]  REDEMPTION  OF  A  MORTGAGE. 

doubted  right  to  do  this  although  she  has  released  her  dower  in  the 
mortgage. 1  And  even  a  wife  having  only  an  inchoate  right  of 
dower  may  redeem  land  from  a  mortgage  in  which  she  has  joined 
with  her  husband  to  release  dower.^  A  foreclosure  of  the  mort- 
gage in  the  lifetime  of  the  husband,  by  a  suit  in  equity  to  which 
she  was  not  made  a  party,  does  not  cut  off  her  right  of  redemp- 
tion ;  3  though  when  the  foreclosure  is  by  a  writ  of  entry,  or  by 
scire  facias,  it  is  not  necessary  to  join  the  wife  as  a  party  in  oi-der 
to  bar  her  right  of  redemption.*  A  widow  in  bringing  a  bill  in 
equity  to  redeem  should  show  that  she  has  no  remedy  in  law  to 
recover  her  dower ;  and  should  therefore  set  forth  that  her  husband 
was  seised  during  coverture  of  only  an  equity  of  redemption,  or 
that  if  he  was  seised  of  the  legal  estate  she  joined  him  in  the 
mortgage.^ 

A  widow  is  not  entitled  to  have  lands  which  are  assigned  to  her 
as  dower  redeemed  from  a  mortgage  which  she  joined  her  husband 
in  executing,  unless  a  statute  provides  that  the  mortgage  shall  be 
redeemed  by  her  husband's  estate  in  exoneration  of  her  dower.  A 
statute  which  merely  provides  that  the  probate  court  may  order  the 
administrator  to  redeem  such  property,  if  it  would  be  beneficial 
to  the  estate  and  not  injurious  to  creditors,  does  not  entitle  the 
widow  to  demand  such  redemption.  The  general  rule  is  that  the 
widow  who  has  relinquished  her  right  of  dower  in  a  mortgage  is 
entitled  to  dower  only  in  the  equity  of  redemption.*^ 

Under  a  statute  making  it  the  duty  of  an  administrator  to  pay 
liens  and  mortgages  upon  the  estate  of  the  deceased  in  preference 
to  his  general  debts,  if  the  administrator,  having  in  his  hands  suffi- 
cient personal  property  for  the  purpose,  suffers  a  mortgage  to  be 
foreclosed,  tiie  widow  of  the  deceased  is  entitled  to  recover  of  the 

Crehore,  5  Pick.  146, 151,  and  Van  Vronker  Gatewood  v.  Gatewood,  75  Va.  407,  quotin}^ 

r.  Eastman,  7  Met.  157,  are  not  in  conflict  text;  Buser  v.  Shepard,  107  Ind.  420,  8  N. 

with  the  doctrine  stated,  as  in  those  cases  E.  Rep.  280  ;  Vaughan  v.  Dowden,  126  lud. 

the  mortgagee  did  not  object  to  a  redemp-  406,  26  N.  E.  Rep.  74,  quoting  text, 

tion  on  the  payment  of  a  proportional  part.  ^  Mills  v.  Van  Voorhies,  20   N.  Y.  412, 

New  Jersey:  Chiswell  v.  Morris,  14  N.  J.  10  Abb.  Pr.  152;  Sheldon  ?'.  Hoffnagle,  51 

Eq.  101.     New  York:  Ross  i;.  Boardman,  22  Hun,  478  ;  Wheeler  y.  Morris,  2  Bosw.  524  ; 

Hun,  527  ;  Wheeler  v.  Morris,  2  Bosw.  524;  Barr  v.  Vanalstine,  120  Ind.  590,  22  N.  E. 

Denton  v.  Nanny,  8  Barb.  618.     Ohio:  Mc-  Rep.  965. 

Arthur  v.  Franklin,  16  Ohio  St.  19.3.     Ala-  *  Pitts  v.  Aldrich,  11  Allen,  39. 
bama:  McGough  v.  Sweetzer  (Ala.),  12  So.  ^  Messiter  v.  Wright,  16  Pick.  151  ;  Da- 
Rep.  162.  vis  V.  Wetherell,  13  Allen,  60,  90  Am.  Dec. 

1  McCabe  v.  Bellows,  1  Allen,  269.  177  ;  Whitcomb  v.  Sutherland,  18  111.  578. 

2  Davis  I?.  Wetherell,  13  Allen,  60, 90  Am.  6  Hawley  v.  Bradford,  9  Paige,  200; 
Dec.  177;  Lamb  v.  Montague,  112  Mass.  Hewett  v.  Cox,  55  Ark.  225, 15  S.  W.  Rep. 
352 ;  Taggart  v.  Wade,  1  N.  Y.  Supp.  900;  1026. 

28 


WHO   MAY   REDEEM.  [§§  1068,  1069. 

administrator  the  same  proportion  of  the  personal  assets  she  would 
have  had  in  the  land  had  these  assets  been  applied  in  discharge  of 
the  mortgage.  It  is  immaterial  in  this  respect  that  the  mortgage 
was  given  for  purchase-money  and  the  wife  did  not  join  in  the  mort- 
gage.^ Her  joining  in  the  mortgage  operates  as  a  waiver  of  her 
right  only  in  favor  of  the  mortgagee  ;  and  her  right  to  her  share 
in  the  real  estate  is  absolute  against  general  creditors  of  her  hus- 
band.^ 

An  estate  of  homestead  entitles  the  holder  of  it  to  i*edeem.^ 
A  tenant  by  the  curtesy  may  in  like  manner  redeem. 
A  jointress  having  a  jointure  in  the  whole  or  any  part  of  the 
mortgaged  estate  has  a  redeemable  interest  in  it.*  And  although 
she  grants  a  term  for  years  out  of  her  estate  for  life,  so  long  even 
as  ninety-nine  years,  "•  there  rests  a  reversion  in  her  which  naturally 
attracts  the  redemption.'^ 

1068.  A  surety  of  a  debt  secured  by  a  junior  mortgage  upon 
payment  of  the  debt  is  entitled  b}^  subrogation  to  the  rights  of  such 
mortgagee  to  redeem  from  a  prior  mortgagee.*^  It  is  his  right  to 
avail  himself  of  the  security  held  by  the  creditor.  He  thereupon 
stands  in  the  place  of  the  creditor,  and  may  enforce  the  security 
Mgainst  the  property  mortgaged  and  the  person  primarily  liable 
without  any  assignment  to  himself  of  the  mortgage.'^ 

1069.  A  judgment  creditor  of  the  mortgagor  may  redeem.^  It 
is  not  necessary  that  an  execution  should  first  be  issued,  or  the  land 
sold.^  But  a  general  creditor  whose  claim  is  not  a  charge  upon  the 
mortgaged  estate  has  no  right  of  redemption. ^°     A  judgment  cred- 

1  Morgan  v.  Sackett,  57  Ind.  580,  2  R.  S.  220;  Stonehewer  v.  Thompson,  2  Atk.  440. 

of  Ind.  1876,  p.  534.  New  York:  Bank  of  Niagara  v.  Roosevelt, 

-  Perry  v.   Borton,  25   Ind.   274 ;    New-  9   Cow.  409,   Hopk.  Ch.  579  ;  Van  Buren 

comer  v.  Wallace,  30  Ind.  216;  Hunsucker  v.  Olmstead,  5  Paige,  9;  Quiny.    Brittain, 

V.  Smith,  49  Ind.  114.  Hoff.  Ch.  353;  Auger  v.  Winslow,  Clarke, 

3  Jones   V.   Meredith,   Bunb.  346;    Cas-  258;    Brainard  v.  Cooper,  10  N.  Y.  356; 

borne  I'.  Inglis,  2  Jac.  &W.  194, 1  Atk.  603;  Benedict  v.  Gilman,  4  Paige,  58;  Dauchy 

Stone  V.   Godfrey,  18  Jur.  162;    Butts   v.  v.  Bennett,  7   How.  Pr.  375.     Kentucky: 

Broughton,   72  Ala.   294  ;  Kirby  v.  Reese,  Hilt  v.  Holliday,  2  Litt.  332.     North  Caro- 

69    Ga.   452;    Erwin   v.   Bkmks,   60   Tex.  Una:  Stainback  r.  Geddy,  1  Dev.  &  B.  Eq. 

583.  479.     New  Jersey  :  Malialieu  v.  Wickhain, 

*  Howard  v.  Harris,  1  Vern.  35.  42  N.  J.  Eq.  297,  10  Atl.  Rep.  880  ;  Connec- 

5  Brend  v.  Brend,  1  Vern.  213.  ticiit  Mat.  L.  Ins.  Co.  v.  Crawford,  21  Ecd. 

«  Wright  V.  Morley,  1 1  Ves.  12  ;  Ex  parte  Rep.  281.     Alabama :  Cramer  v.  Watson,  73 

Crisp,  1  Atk.  1.33;    Mayhew  v.  Crickett,  2  Ahi.  127. 

Swanst.  185;  Wade  v.  Coope,  2  Sim.  155;  ^  Cases  above,  and  Brainard  y.  Cooper,  10 

Green    v.  Wynn,  L.   R.  4    Ch.  App.  204 ;  N.  Y.  356. 

Averill  v.  Taylor,  8  N.  Y.  44.  ^''  Story's  Eq.  Jur.  §  1023 ;  Grant  v.  Duane, 

7  Averill  v.  Taylor,  8  N.  Y.  44.  9  Johns.  591,  611  ;  Walden  v.  Speigiier,  87 

«  England :  Mildred  v.  Austin,  L.  R.  8  Eq.  Ala.  379,  390,  6  So.  Rep.  80. 

29 


§  1070.]  REDEMPTION    OF    A    MORTGAGE. 

itor  has  no  lien  upon  his  debtor's  homestead,  and  he  has  therefore 
no  right  to  redeem  the  same  from  a  prior  mortgage.^  A  mortgagee 
who  has  soki  the  mortgaged  premises  under  a  decree  of  court,  hav- 
ing a  personal  judgment  for  a  deficiency,  has  been  deemed  a  judgment 
creditor  entitled  to  redeem  from  the  purchaser  at  the  foreclosure 
sale,  where  redemption  after  such  sale  is  allowed  by  statute.^ 

The  purchaser  of  an  equity  of  redemption  sold  on  execution  has 
a  right  to  redeem,^  although  the  land  be  in  the  possession  of  a  dis- 
seisor.^ And  so  has  a  judgment  creditor  to  whom  the  premises 
have  been  set  off  by  extent  and  appraisement,  without  any  deduc- 
tion on  account  of  the  incumbrance."  An  assignee  in  bankruptcy,*' 
or  a  trustee  appointed  by  the  court  or  under  an  assignment  from 
the  debtor,  may  also  redeem.' 

A  creditor  of  the  mortgagor  having  an  attachment  upon  the 
mortgaged  premises  may  bring  a  bill  in  equity  to  redeem.^  The 
mortgagor  has  a  paramount  right  to  redeem,  and,  if  he  brings  a 
bill  to  redeem  pending  a  bill  by  the  creditor  for  the  same  purpose, 
he  is  entitled  to  a  decree  for  redemption  in  preference  ;  but  he  will 
not  be  allowed  in  this  manner  to  unreasonably  delay  the  redemp- 
tion. A  divorced  woman  who  has  attached  the  land  of  her  former 
husband  to  secure  his  payment  of  alimony  to  her  is  entitled,  like 
any  attaching  creditor,  to  redeem.'^ 

V.    The  Sum  payable  to  effect  Redemption. 

1070.  Payment  of  the  amount  due  on  the  mortgage  is  a  neces- 
sary condition .  precedent  to  redemption.^*^  "  A  suit  to  redeem  is  a 
suit  in  equity,  and  is  subject  to  the  rule  that  he  who  seeks  equity 
must  do  equity."  ^^  If  the  holder  of  the  mortgage  has  paid  prior 
incumbrances  for  the  protection  of  the  estate,  the  person  redeeming 
is  required  to  add  the  amounts  so  paid  to  the  mortgage  debt,  both 
because   the  estate   is  benefited   to  that  amount,  and  because  the 

1  Spurgin  v.  Adamson,  62  Iowa,  661,  18  In  New  Hampshire  it  is  provided  by  stat- 
N.  W.  Rep.  293.  ute  that  an  attachinj^  creditor,  either  before 

2  Greene  v.  Doane,  57  Ind.  186.  See  or  after  execution,  may  redeem.  P.  S.  1891, 
§  1334.  ch.  219,  §  8. 

3  Coombs  v.  Carr,  .55  Ind.  303  ;  Watson  »  Bri-rgs  v.  Davis,  108  Mass.  322. 

r.  Steele,  78  Ala.  361.  lo  Fogal   v.   Pirro,  17   Abb.    Pr.  113,  10 

*  Wellington  v.  Gale,  13  Mass.  483,  488;  Bosw.   100;  Childs  v.  Childs,  10  Ohio  St. 

Atkins  V.  Sawyer,  1  Pick.  351,  354,  11  Am.  339,  75  Am.  Dec.  512;  Cowles  v.  Marble, 

Dec.  188.  37  Mich.  158. 

5  White  V.  Bond,  16  Mass.  400.  "  Emerson  v.  Atkinson  (Mass.),  34  N.  E. 

6  Lloyd  I'.  Hoo  Sue,  5  Sawyer,  74.  Rep.  516,  519,  per  Allen,  J.  ;  Fay  v.  Valen- 

7  Francklyn  v.  Fern,  Barnard,  30.  tine,  12  Pick.  40;  Dary  v.  Kane,  158  Mass. 

8  Chandler  v.  Dyer,  37  Vt.  345  ;  Bridge-  376, 33  N.  E.  Rep.  527  ;  Shaw  v.  Abbott,  61 
port  V.  Blinn,  43  Conn.  274.  N.  H.  254. 

30 


THE  SUM  PAYABLE  TO  EFFECT  REDEMPTION.     [§  1070. 

holder  of  the  mortgage  by  paying  such  incumbrance  is  subrogated 
to  the  chiim,  and  holds  it  as  a  charge  upon  the  property  as  much  as 
he  does  the  mortgage  to  which  he  has  direct  title.^  Where  a  prior 
mortgage  upon  payment  by  a  junior  mortgagee  was  discharged 
of  record,  and  the  plaintitf  afterward  acquired  his  title  while  the 
defendant's  mortgage  was  apparently  the  only  incumbrance,  the 
defendant  was  allowed  the  amount  so  paid  by  him,  inasmuch  as  the 
whole  amount  claimed  by  him  was  less  than  the  amount  of  his  own 
mortgage  as  it  appeared  of  record .^  But  a  mortgagor  is  not  re- 
quired to  pay  any  demands  of  the  mortgagee  not  embraced  in  or 
covered  by  the  mortgage.^ 

If  the  mortgage  be  for  anything  else  than  the  payment  of  money, 
the  condition  of  the  mortgage,  whatever  it  be,  must  be  fulfilled  ; 
and  when  the  condition  is  fulfilled  the  mortgagor  is  entitled  to  an 
entry  of  satisfaction.*  The  mortgagor  may  also  be  required  to  per- 
form a  condition  not  contained  in  the  mortgage  ;  as  where  the  mort- 
gagee conveyed  the  estate  to  the  mortgagor  by  a  deed  imposing  a 
condition,  and  took  back  a  purchase-money  mortgage,  the  mortgagor 
was  not  allowed  to  redeem  except  upon  performing  the  condition  of 
the  mortgage  and  that  of  the  deed  as  well.^ 

The  sum  payable  to  effect  a  redemption  must  include  not  only 
the  principal  debt  and  interest,  but  whatever  else  is  by  the  con- 
tract a  part  of  the  mortgage  debt,  as,  for  instance,  an  attorney's  fee 
or  insurance  pi-emiums.^ 

In  redeeming  from  a  purchase-money  mortgage,  the  mortgagor 
may  make  deductions  in  the  mortgage  debt  for  any  defects  in  the 
title,  if  it  was  so  agreed  between  the  parties.  Where,  however, 
such  defects  existed,  but  were  cured  before  the  bringing  of  the 
suit  to  redeem,  no  deductions  should  be  made  on  account  of  such 
defects.' 

Redemption  from  a  foreclosure  sale  within  the  time  allowed  by 
statute  in  several  States  may  be  made  by  paying  the  purchaser 
the  amount  of  his  bid  with  interest.  This  rule  applies  although 
the  purchaser  be  the  senior  mortgagee,  and  the  amount  of  his  bid 
be  less  than  the  amount  of  the  mortgage  debt,  and  redemption  is 
sought  by  one  interested  in  the  equity  of  redemption  who  was 
made  a  party  to  the  foreclosure  suit.     Such  a  redemption  is  not  a 

1  Long  V.  Long  (Mo.),  19  S.  W.  Rep.  537.        "  Hosford  v.  Johnson,  74  Ind.  479  ;  Day- 

2  Davis  V.  Winn,  2  Allen,  111.  ton  v.  Dayton,  68  Mich.  437,  36  N.  W.  Rep. 

3  Parmer  v.  I'armer,  74  Ala.  285.  209. 

*  Goldbeck's  App.  (Pa.)  8  Atl.  Rep.  29.  '  Dooley  v.  Potter,  146  Mass.  148,  15  N. 

6  Stone  V.  Kliis,  9  Cush.  95.  E.  Rep.  499. 

31 


§§  1071,  1072.]     REDEMPTION  OF  A  MORTGAGE. 

redemption  from  the  mortgage,  but  a  redemption  from  the  sale,  and 
is  a  statutory  right.^ 

1071.  The  mortgagee  after  default  is  said  to  be  entitled  to 
notice  of  payment,  on  the  ground  that,  redemption  being  a  mat- 
ter of  equity  only,  the  person  seeking  to  redeem  should  do  equity 
by  allowing  a  reasonable  time  to  the  mortgagee  to  find  a  new  in- 
vestment for  his  money.  According  to  the  English  practice,  six 
months  is  the  proper  time  of  notice  ;  and  if  the  notice  be  not 
given,  six  months'  interest  is  paid  in  lieu  of  notice.^  Although 
some  notice  is  always  proper,  there  is  no  established  rule  or  cus- 
tom regulating  it  in  this  country.  Of  course,  if  the  mortgagee 
demands  his  money  no  notice  is  necessary  ;  nor  is  there  when  he 
has  taken  proceedings  to  enforce  his  claim  which  amount  to  a 
demand.^ 

1072.  It  is  a  general  rule  that  a  mortgage  is  an  entire  thing, 
and  must  be  redeemed  entire,  and  that  the  mortgagee  cannot  be 
compelled  to  divide  his  debt  and  his  security.*  He  performs  his 
whole  duty  when  he  releases  the  entire  estate  upon  receiving  pay- 
ment of  the  whole  debt  in  one  payment.  The  fact  that  the  mort- 
gaged premises  have  subsequently  become  divided,  and  are  held  in 
separate  parcels  by  different  owners,  does  not  concern  him,  or  put 
him  under  any  obligation  to  receive  payment  of  his  mortgage  in 
parts  from  the  different  owners.^  Redemption  can  be  had  only 
upon  paying  the  whole  amount  of  the  mortgage  debt.  "  This  is 
requisite  to  redemption  by  the  owner  of  a  portion  only  of  the  mort- 
gaged premises.  The  mortgagee  cannot  as  a  rule  be  required  upon 
the  basis  of  an  apportionment  to  take  a  sum  less  than  the  whole 
amount  due  him,  and  release  the  lien  of  his  mortgage  upon  any  of 
such  premises.     The  relief  of  such  owner  redeeming  is  in  his  rem- 

1  Day  V.  Cole,  44  Iowa,  452  ;  Tuttle  v.  Bishop,  27  Iowa,  214  ;  Spurgin  r.  Adamson, 
Dewey,  44  Iowa,  306,  distinguished  on  this  62  Iowa,  661,  18  N.  W.  Eep.  293  ;  Boqut  v. 
ground  from  Johnson  i'.  Harmon,  19  Iowa,  Coburn,  27  Barb.  230;  Bobinson  v.  Fife,  3 
56.  Ohio  St.  551  ;  Banning  v.  Smith,  1  Parsons 

2  Fisher  Mort.  §  1272, 3d  ed.;  Browne  u.  Sel.  Cas.  13;  Meacham  v.  Steele,  93  111. 
Lockhart,  10  Sim.  420,  424;  Bartlett  v.  135  ;  Casler  i;.  Byers,  li9  111.  657,  22  N.  E. 
Franklin,  15  W.  R.  1077.  Rep.  507;  Andreas  v.  Hubbard,  50   Conn. 

8  Letts  V.  Hutchins,  L.  R.  13  Eq.  176.  351. 

4  Palk  V.  Clinton,  12  Ves.  48;  Cholmon-        ^  Johnson  v.  Candage,  31  Me.  28;  Smith 

delay   v.   Clinton,   2    Jac.    &    W.  1,    189;  v.  Kelley,  27  Me.  237,  46  Am.  Dec.  595; 

Lamb  v.  Mont.igue,  112  Mass.  352;  Mer-  Mullanphy  y.  Simpson,  4  Mo.  319  ;  Lyon  y. 

ritt  V.  Hosmer,  11  Gray,  276,  71  Am.  Dec.  Robbins,45  Conn.  513  ;  Meacham  D.Steele, 

713;    Gliddon   v.   Andrews,   14   Ala.  733;  93  111.  135;  Andreas  t-.  Hubbard,  50  Conn. 

Knowles  v.  Rablin,  20  Iowa,  101  ;  White  v.  351.     But  see  Morse  u.  Smith,  83  111.  396  ; 

Hampton,  13  Iowa,  259  ;  Street  v.  Beal,  16  Mutual  L.  Ins.  Co.  v.  Easton  &  Amboy  R. 

Iowa,  68,  85  Am.  Dec.  504;    Douglass  v.  R.  Co.  38  N.  J.  Eq.  132. 

32 


THE   SUM   PAYABLE    TO   EFFECT    REDEMPTION.       [§§  1073,  1074. 

edy,  founded  upon  the  principle  of  subrogation  to  the  rights  of  the 
mortgagee,  against  the  other  portions  of  the  mortgaged  premises, 
and  to  thus  seek  or  compel  contribution."  Therefore  a  decree  can- 
not be  entered  that  on  payment  of  the  declared  proportionate  share 
of  any  lot  it  shall  be  released  from  tlie  lien  of  the  mortgage.^ 

On  a  bill  to  redeem,  a  prior  conditional  judgment  on  a  writ  of 
entr}^  to  foreclose  is  conclusive  evidence  of  the  amount  then  due  on 
the  mortgasre.^ 

The  rule  is  the  same  although  two  separate  estates  are  mort- 
gaged by  distinct  deeds,  in  case  the  condition  of  each  is  to  pay 
one  and  the  same  mortgage  debt.  A  creditor  who  levies  an  exe- 
cution upon  one  estate  becomes  entitled  to  redeem  both  estates 
upon  payment  of  the  whole  mortgage  debt;  but  he  cannot  be  per- 
mitted to  redeem  only  the  estate  levied  upon,  by  paying  sucli  pro- 
portion of  the  mortgage  debt  as  that  estate  bears  to  the  value  of 
the  whole  mortgaged  premises.  The  debt  being  one,  the  mortgage 
is  one  also.  The  unity  of  the  debt  makes  the  equity  of  redemption, 
though  created  by  two  instruments,  one  and  indivisible.'^ 

Where  two  mortgages  are  made,  each  upon  an  undivided  half 
interest,  a  purchaser  who  has  assumed  the  payment  of  both  mort- 
gages cannot  redeem  one  without  the  other.  By  force  of  his  agree- 
ment the  two  mortgages  are  consolidated  into  one.* 

1073.  The  fact  that  the  mortgagee  has  proved  against  the 
insolvent  estate  of  a  deceased  mortgagor  the  mortgage  debt,  less 
the  full  estimated  value  of  the  land,  and  has  received  a  dividend  on 
that  amount,  does  not  preclude  his  claiming  the  full  amount  remain- 
ing due  on  the  mortgage  upon  a  bill  to  redeem  subsequently  brought 
against  him  by  one  who  has  purchased  the  equity  of  redemption 
from  the  heirs  at  law.^  And  the  fact  that  the  mortgagor  has  ob- 
tained a  discharge,  under  bankruptcy  or  insolvency  proceedings, 
from  his  personal  liability  for  the  mortgage  debt,  does  not  in  any 
way  relieve  him  from  paying  the  debt  in  full  upon  redemption, 
whatever  may  be  the  value  of  the  property.^ 

1074.  When  the  mortgagee  has  foreclosed  a  part  of  the 
premises,  redemption  may  be  made  of  the  remaining  portion  of 
the  premises  upon  payment  of  a  part  of  the  debt."     Land  subject 

1  Coffin  V.  Parker,  127  N.  Y.  117,  27  N.        6  Davis  v.  Winn,  2  Allen,  111. 
E.  Rep.  814.  6  Childsv.Childs.lOOhioSt.  339,75Am. 

-  Stevens  v.  Miner,  5  Gray,  429,  n. ;  Spar-  Dec.  512  ;  Kezer  v.  Clifford,  59  N.  H.  208. 
hawk  V.  Wills,  5  Gray,  423.  ^  Dukes   v.  Turner,  44   Iowa,  575,  579, 

'^  Franklin  v.  Gorham,  2  Day,  142,2  Am.  distinguished  from  Street  v.  Beal,  16  Iowa, 

I^ec.  86.  68,  85  Am.  Dec.  504,  where  the  mortgagee 

*  Wells  V.  Tucker,  57  Vt.  223.  retained  all  the  property. 
VOL.   II.                          3  33 


§  1074.]  REDEMPTION    OF   A    MORTGAGE. 

to  a  mortgage  was  sold  with  full  covenants  of  warranty  in  two  lots 
to  different  persons  at  different  times,  and  the  mortgagee  afterwards 
entered  upon  both  lots  for  foreclosure,  and  the  foreclosure  became 
absolute  as  to  the  lot  last  sold ;  whereupon  the  owner  of  the  lot 
first  sold  brought  a  bill  to  redeem,  and  was  allowed  to  do  so  upon 
paying  the  balance  due  upon  the  mortgage  debt,  after  deducting  the 
full  value  of  the  other  lot  with  the  buildings  upon  it;  and  it  was 
regarded  as  immaterial  that  the  buildings  were  erected  after  the 
sale  by  the  mortgagor.'  The  mortgagee  having  appropriated  one 
lot  to  the  payment  of  the  mortgage  debt,  the  other  tract  is,  to  the 
extent  of  the  value  of  the  lot  appropriated,  relieved  from  the  bur- 
den of  the  mortgage.^ 

And  so  redemption  may  be  made  of  a  part  where  the  mortgage 
has  been  foreclosed  without  making  all  of  the  several  owners  of  the 
land  parties  to  the  suit,  and  the  mortgagee  has  purchased  at  the 
sale,  because  he  has  by  such  proceeding  and  purchase  voluntarily 
severed  his  right,  and  obtained  an  indefeasible  title  to  part  of  the 
land  and  only  a  defeasible  title  to  another  part.  The  owner  not 
made  a  party  may  redeem  the  portion  owned  by  him  on  paying  a 
part  of  the  mortgage  debt  bearing  such  a  proportion  to  the  whole 
as  the  value  of  his  land  bears  to  that  of  the  whole  mortgaged 
premises.^  Two  persons  owning  land  in  common  made  a  mortgage 
of  it,  and  one  of  them  afterwards  mortgaged  his  undivided  half  to 
another  person.  The  first  mortgagee  obtained  a  decree  of  foreclos- 
ure and  sale  in  a  suit  in  which  the  second  mortgagee  was  not  made 
a  party.  It  was  held  that  the  second  mortgagee,  not  being  bound 
by  the  foreclosure,  might  redeem  an  undivided  half  upon  payment 
of  the  whole  mortgage,  less  one  half  the  proceeds  of  the  foreclosure 
sale  of  the  whole  land.* 

The  authorities  on  this  subject  are  not,  however,  altogether  uni- 
form. In  some  cases  the  general  rule  in  regard  to  redeeming  the 
entire  interest  is  so  far  adhered  to  that  the  mortgagee  is  allowed  to 
elect  whether  the  part  owner  seeking  to  redeem  shall  pay  the  entire 
amount  due  under  the  mortgage,  and  so  redeem   all  the  property 

1  George  v.  Wood,    11    Allen,   41.     See  ^  Dooley  v.  Potter,  140  Mass.  49,  2  N. 

Fogal  I'.  Pirro,  10  Bosw.  100.     The  mort-  E.  Eep.  935. 

gagee   may  deduct    the  costs  of   the   fore-  ^  Green  v.  Dixon,  9  Wis.  532;  Wilson  v. 

closure  suit  from  the  amount  to  be  credited  Tarter,  22    Oreg.  504,  30   Pac.  Kep.  499, 

upon   the  mortgage  debt  for  the  value  of  quoting  text. 

the  land  foreclosed,  with  interest  on  such  *  Kirliham  r.  Dupont,  14  Cal.  559.     And 

costs  from  the  date  of  the  decree  of  fore-  see  Frink  v.  Murphy,  21  Cal.  108,  81  Am. 

closure,    Dooley  r.  Potter,  140  Mass.  148,  15  Dec.  149;  Grattan  y.  Wiggins,  23  Cal.  16. 

N.  E.  Rep.  499.  See,  however,  Lauriat  v.  Stratton,  6  Saw- 
yer, 339. 

34 


THE    SUM    PAYABLE   TO    EFFECT   REDEMPTION.  [§  1075 

sold,  or  shall  pay  a  proportional  part  of  that  amount,  and  redeem 
merely  the  piece  of  which  he  was  the  owner.^ 

1075.  One  who  redeems  after  a  foreclosure  sale  must  pay 
the  whole  amount  of  the  mortgage  debt,  although  the  land  sold 
for  a  less  sum.^  The  grounds  for  this  rule  are  clearly  stated  by 
Mr.  Justice  Bradley  of  the  United  States  Supreme  Court :  "  To 
redeem  property  which  has  been  sold  under  a  mortgage  for  less 
than  the  mortgage  debt,  it  is  not  sufficient  to  tender  the  amount  of 
the  sale.  The  whole  mortgage  debt  must  be  tendered  or  paid  into 
court.  The  part}'  offering  to  redeem  proceeds  upon  the  hypothesis 
that,  as  to  him,  the  mortgage  has  never  been  foreclosed  and  is  still 
in  existence.  Therefore  he  can  only  lift  it  by  paying  it.  The 
money  will  be  subject  to  distribution  between  the  mortgagee  and 
the  purchaser  in  equitable  proportions,  so  as  to  reimburse  the  latter 
his  purchase-money,  and  pay  the  former  the  balance  of  his  debt."  ^ 
In  case  the  mortgagee  has  bid  in  the  property  and  afterwards 
sold  portions  of  it  to  others,  the  money  paid  in  redemption  should 
be  distributed  among  the  grantees  on  the  basis  of  the  prices  paid 
by  them  for  their  purchases,  and  in  the  order  of  the  conveyances 
to  them.^ 

A  junior  incumbrancer  who,  not  having  been  made  a  party  to  a 
foreclosure  of  a  prior  mortgage,  afterwards  redeems,  redeems  not 
the  premises,  strictly  speaking,  but  the  prior  incumbrance;  and  he 
is  entitled,  not  to  a  conveyance  of  the  premises,  but  to  an  assign- 
ment of  the  security.^  Therefore  if  the  prior  mortgagee  in  such 
case  has  become  the  purchaser  at  the  foreclosure  sale,  and  has  thus 
acquired  the  equity  of  redemption  of  the  mortgaged  premises,  the 
junior  mortgagee  upon  redeeming  is  not  entitled  to  a  conveyance  of 
the  estate,  but  to  an  assignment  of  the  prior  mortgage  ;  whereupon 
the  prior  mortgagee,  as  owner  of  the  equity  of  redemption,  may,  if 
he  choose,  pay  the  amount  due  upon  the  junior  mortgage,  redeem- 
ing that.''  The  decree  in  such  case  would  be  that  the  junior  mort- 
gagee redeem  the  first  mortgage;  that  the  first  mortgagee,  as  owner 

1  Wilson  V.  Tarter,  22  Orcg.  504,  30  Pac.  son,  74    Ind.  479;  Weyant   v.  Murphy,  78 

Rep.  499 ;  Boqut  v.  Coburn,  27  Barb.  230.  Cal.  278,  20  Pac.  Rep.  568,  12  Am.  St.  Rep. 

^  See   §    1067;    Benedict   v.    Oilman,   4  50;   McGough    v.  Sweetzer   (Ala.),  12    So. 

Paige,  58  ;  Raynor  v.  Selmes,  52  N.  Y.  579  ;  Rep,  162. 

Robinson  v.  Ryan,  25  N.  Y.  320;  Gage  v.  »  Collins  v.  Riggs,  14  Wall.  491. 

Brewster,  31  N.  Y.  218 ;  Bradley  v.  Snyder,  '^  Davis  v.  Duffie,  18  Abb.  Pr.  360. 

14    111.  263,  58   Am.    Dec.    564;  Baker   v.  ^  Pell  v.  Brown,  2  Bro.  C.  C.  276;  Par- 

Pierson,  6  Mich.  522;  Johnson  v.  Harmon,  dee  v.  Van  Anken,  3  Barb.  534,  537;  Re- 

19  Iowa,  50;  Martin  v.  Fridley,  23  Minn,  nard  v.  Brown,  7  Neb.  449. 

13;  Powers  v.  Golden  Lumber  Co.  43  Mich.  «  Smith  v.  Shay,  62  Iowa,  119,  17  N.  W. 

468,  5  N.  W.  Rep.  656;    Hosford  f.  John-  Rep.  444,  quoting  text. 

35 


§  1076.]  REDEMPTION   OF   A   MORTGAGE. 

of  the  equity  of  redemption,  redeem  from  the  junior  mortgage,  and 
if  he  fail  to  do  so  that  the  premises  be  sold,  and  out  of  the  pro- 
ceeds there  be  paid,  first,  the  first  mortgage  and  interest,  together 
with  any  claim  for  repairs  the  prior  mortgagee  may  have  made 
upon  the  premises  while  in  possession  ;  second,  the  remainder  to 
the  payment  of  the  second  mortgage  and  interest  upon  it,  and,  in 
case  there  be  a  surplus,  this  to  be  paid  to  the  first  mortgagee  as 
owner  of  the  equity  of  redemption. ^ 

In  case  a  mortgagor  or  owner  of  the  equity  of  redemption  redeem 
after  a  foreclosure  sale  to  which  he  was  not  made  a  party,  and  the 
purchaser  has  entered  into  possession,  the  amount  to  be  paid  in 
order  to  effect  a  redemption  is  the  amount  of  the  mortgage  debt 
with  interest,  and  the  value  of  improvements  made  by  the  pur- 
chaser, less  the  rents  and  profits  received  by  him.^ 

1076.  Under  special  circumstances  redemption  of  a  portion 
of  the  mortgaged  estate  may  be  made  without  paying  the  mort- 
gage debt,  or  even  contributing  towards  it ;  as,  for  instance,  where 
the  owner  of  such  portion  held  under  a  warranty  deed,  and  the  re- 
maining portion,  which  was  sufficient  to  satisfy  the  mortgage  debt 
in  full,  was  owned  by  the  assignee  of  the  mortgage.^ 

Another  exception  is  made  in  favor  of  a  railway  or  other  corpo- 
ration to  which  a  right  to  take  land  has  been  granted  by  a  general 
law  or  a  special  act.  In  such  case  the  corporation,  upon  taking 
the  land  necessary  for  its  right  of  way,  may  redeem  such  part  of  a 
mortgage  as  covers  the  land  so  taken  without  paying  the  whole 
mortgage  debt.* 

By  agreement  one  may  be  entitled  to  redeem  a  part  of  the  mort- 
gaged land.  Thus  where,  pending  a  foreclosure,  the  owner  con- 
veyed the  land  to  the  mortgagee  upon  consideration  of  the  mort- 
gagee's agreeing  to  allow  the  owner  to  redeem  part  of  the  land  for 
a  certain  sum,  and  thereupon  a  decree  of  foreclosure  was  entered 
to  cut  off  subsequent  incumbrancers,  the  owner  was  entitled  to 
redeem  according  to  the  agreement,  regardless  of  the  decree  of  fore- 
closure.    The  courts  will  enforce  such  an  agreement.^ 

When  a  mortgagee  enters  to  foreclose  for  a  breach  of  condition 
in  the  non-payment  of  interest,  and  the  mortgagor  brings  a  bill  to 
redeem,  pending  which  the  principal  becomes  due,  he  is  not  entitled 

1  Kenard  v.  Brown,  7  Neb.  449  ;  Catter-        ^  Bradley  v.  George,  2  Allen,  392. 

lin  V.  Armstrong,  79  Ind.  511.  *  Dows  v.   Congdon,   16  How.  Pr.  571  ; 

2  Barrett   v.   Blackmar,   47    Iowa,   565;    North  Hudson  County  R.  R.  Co.  r.Booraem, 
Van  Duyne  v.  Shaun,  39  N.  J.  Eq.  6  ;  Wal-    28  N.  J.  Eq.  450. 

ton  V.  Bagley,  47  Mich.  385,  11  N.  W.  Rep.  ^  Union  Mut.  L.  Ins.  Co.  v.  Kirchoff,  133 
209.  111.  368,  27  N,  E.  Rep,  91. 

36 


THE  SUM  PAYABLE  TO  EFFECT  REDEMPTION.     [§  1077. 

to  a  decree  except  upon  paying  the  whole  sum  then  due,  both  prin- 
cipal and  interest.^ 

1077.  When  part  only  of  the  debt  is  due,  —  When  an  entry 
has  been  made  for  a  breach  of  condition  in  the  non-payment  of  one 
of  several  sums  secured  by  the  mortgage,  and  the  mortgagor  wishes 
to  redeem,  the  mortgagee  is  not  obliged  to  accept  the  amounts  not 
yet  due;  but  to  avoid  the  manifest  injustice  of  a  foreclosure,  the 
court  will  make  a  special  decree,  upon  payment  of  the  sum  due, 
declaring  that  the  proceedings  shall  stand  open,  leaving  the  mort- 
gagee in  possession  until  the  further  sum  shall  become  due.^  The 
mortgagor  on  paying  all  that  is  due,  and  thus  performing  the  condi- 
tion so  far  as  he  is  able,  regains  the  title  of  the  estate.  But  if  all 
the  sums  have  become  payable  before  the  mortgagor  brings  his  bill 
to  redeem,  he  must  pay  the  whole  sum  due  on  the  mortgage,  and 
not  merely  the  sum  for  the  non-payment  of  which  the  entry  was 
made,  before  he  is  entitled  to  a  decree.^ 

The  remedy  of  a  mortgagor,  or  of  one  claiming  under  him,  en- 
titled to  redemption,  is  by  a  bill  in  equity,  and  cannot  be  obtained 
in  a  suit  at  law.  His  estate  is  only  an  equitable  one.'*  When, 
therefore,  the  mortgagor  seeks  to  regain  his  legal  estate  and  the 
possession  of  it  in  a  court  of  equity,  he  must  do  equity  to  the  mort- 
gagee by  paying  all  that  is  actually  due  upon  the  mortgage  up  to 
the  time  of  redemption  ;  so  that  if  the  mortgagee  has  entered  for  a 
breach  of  the  condition  by  non-payment  of  interest,  and  the  prin- 
cipal becomes  due  pending  the  mortgagor's  bill  to  redeem,  a  decree 
for  redemption  can  onl}^  be  had  upon  payment  of  both  principal 
and  interest.^ 

The  rule  is  the  same  when  foreclosure  is  effected  by  suit  in  equity, 
and  a  decree  is  obtained  upon  one  note  before  the  maturity  of 
others.  Redemption  may  be  had  by  the  payment  of  this  note  be- 
fore completion  of  the  sale,  leaving  the  premises  subject  to  the  notes 
not  due.^  When  redemption  is  allowed  after  sale,  and  the  holder 
of  the  first  maturing  note  forecloses,  the  holder  of  a  note  subse- 
quently maturing  may  redeem  from  tlie  foreclosure  sale,  and  may 
himself  foreclose  for  the  satisfaction  of  his  own  note,  and  not  for 
the  amount  paid  by  him  to  redeem  from  the  first  foreclosure.  The 
holders  of  the  several  notes  have  the  same  right  to  redeem  that  they 

1  Adams  v.  Brown,  7  Cusli.  220.  *  Pearce  v.  Savage,  45  Me.  90 ;  Smith  v. 

2  Saunders  v.  Frost,  .5  Tick.  2.59,  16  Am.    Ander.s,  21  Ala.  782. 

Dec.  .394.  ""  Adams  v.  Brown,  7  Cush.  220;  Maun 

3  Mann    v.   Richardson,   21    Pick.   S.'iS;    r.  Ilicliardson,  21  Pick.  355. 
Deming  v.  Comings,  1 1  N.  H.  474.  «  Hocker  v.  Reas,  18  Cal.  650. 

37 


§§  1078,  1079.]  REDEMPTION   OF   A   MORTGAGE. 

would  have  if  the  notes  were  secured  by  separate  mortgages.^  In 
the  same  way  if  the  plaintiff  has  two  mortgages  upon  the  same 
premises,  one  of  which  is  due  and  the  other  not  due,  redemption 
may  be  had  upon  payment  of  that  only  which  is  due.^ 

1078.  Sometimes  it  is  provided  in  the  mortgage  that  upon 
default  the  whole  sum  shall  become  due  immediately,  and  in 
such  case  the  rule  generally  is,  that  the  premises  may  be  foreclosed 
or  sold  under  a  power  for  the  payment  of  the  whole  debt,  and  that 
the  mortgagor  will  not  be  allowed  to  redeem  that  part  of  the  debt 
merely  upon  which  the  default  occurred,  and  to  have  the  mortgage 
continue  as  to  the  part  not  due.^  In  Illinois,  however,  such  a  pro- 
vision has  been  regarded  in  the  nature  of  a  penalty,  and  relief 
against  it  is  given  in  equity  upon  payment  of  the  instalment  due 
with  interest,  and  costs  incurred  in  any  proceeding  to  sell  under  a 
power  or  in  a  foreclosure  suit.^ 

1079.  If  a  mortgage  be  given  to  secure  advances  to  be  made 
to  the  mortgagor,  and  further  advances  are  made  under  an  oral 
agreement  that  the  mortgage  shall  secure  them,  neither  the  mort- 
gagor nor  any  one  having  no  higher  equity  can  redeem  without 
allowing  for  such  advances.^  A  mortgage  cannot,  by  such  an  agree- 
ment, be  continued  in  force  as  security  for  a  new  indebtedness  not 
embraced  in  the  terms  of  its  condition  ;  yet  if  the  mortgagee  has 
advanced  money  to  the  mortgagor  on  the  strength  of  such  an  agree- 
ment, a  court  of  equity  will  not  aid  the  mortgagor,  or  any  one  who 
has  purchased  from  him  with  knowledge  of  the  facts,  in  obtaining 
a  discharge  of  the  mortgage.^  If  a  mortgagee  holding  the  title 
absolutely  make  unauthorized  advances  to  other  persons  for  such  a 
purpose  as  cutting  timber  upon  the  lands,  the  mortgagor  can  redeem 
without  paying  them ; "  but  if  he  make  further  advances  to  the 
mortgagor  or  on  his  order,  these  should  be  allowed  him  on  a  bill  to 
redeem.^ 

Where  a  mortgage  is  given  as  security  for  a  loan,  and  future 
advances  agreed  in  writing  to  be  made  on  the  performance  of  cer- 
tain conditions,  it  would  seem  that  the  mortgage  could  not  be  re- 
deemed by  payment  of  the  loan  actually  advanced,  so  long  as  the 

1  Davis  r.  Langsdale,  41  Ind.  399 ;  State  ^  §  360;  Stone  v.  Lane,  10  Allen,  74; 
Bank  v.  Tweedy,  8  Blackf.  447,  46  Am.  Ogle  t;.  Ship,  1  A.  K.  Marsh.  287 ;  Reed  v. 
Dec.  486;  Preston  v.  Hodgen,  50  III.  56.  Lansdale,  Hardin  (Ky.),  8. 

2  Lamson  v.  Sutherland,  13  Vt.  309.  ^  Upton    v.   Nat.   Bank,  120  Mass.  153; 

3  §§  76,  1176-1186 ;  Williams  v.  Dicker-  Josyln  v.  Wyman,  5  Allen,  62 ;  Brown  v. 
son,   66   Iowa,  105,   23  N.  W.   Rep.   286;  Gaffney,  32  111.  251. 

Stinson  v.  Pepper,  10  Diss.  107.  "  Kelly  v.  Falconer,  45  N.  Y.  42. 

*  Tiernau  v.  Hinman,  16  III.  400.  8  Williamson  v.  Downs,  34  Miss.  402. 

38 


THE   SUM    PAYABLE    TO   EFFECT    REDEMPTION.  [§  1080. 


liabilit}^  under  the  agreement  to  make  future  advances,  is  outstand- 
ing ;  and  it  was  so  decided  in  a  case  where  an  assignee  of  the  equity 
of  redemption,  who  sought  to  redeem  the  mortgage  on  payment  of 
the  loan  witliout  indemnifying  against  the  mortgagee's  agreement 
to  make  future  advances,  had  acquired  his  title  by  a  deed  in  which 
the  land  was  described  as  subject  to  a  mortgage  of  14,000,  the 
whole  amount  of  the  loan  and  future  advances,  and  the  obligation 
for  future  advances  had  been  assigned  by  the  mortgagor  to  a  person 
who  claimed  that  the  mortgagee  should  hold  the  mortgage  undis- 
charged as  security  for  him.^ 

1080.  A  mortgagee  who  has  paid  a  prior  mortgage  or  other 
incumbrance  upon  the  land  is  entitled  to  be  repaid  this  amount,  as 
well  as  his  own  mortgage,  when  the  mortgagor  comes  to  redeem.^ 
In  addition  to  the  rights  the  mortgagee  had  before,  he  is  subrogated 
to  those  which  were  a  charge  upon  the  land  in  the  hands  of  the 
prior  incumbrancer  whom  he  has  paid,^  whether  such  incumbrance 
is  a  mortgage,  a  judgment,*  or  a  rent-charge.^  If  the  outstanding 
incumbrance  embraced  not  only  the  land  covered  by  his  mortgage, 
l)ut  also  other  lands,  he  may  recover  from  the  owner  of  such  other 
lands  his  proportion  of  such  incumbrance.^  In  the  same  way  the 
mortgagee  is  protected  in  the  payment  of  taxes  upon  the  mortgaged 
premises,  although  the  mortgage  does  not  provide  for  the  repayment 
of  money  paid  by  the  mortgagee  for  this  purpose  ; "  or  in  the  pay- 

1  Cox  V.  Hoxie,  115  Mass.  120.  J.  L.),  22  Atl.  Rep.  177  ;  Jackson  v.  Relf,26 

-  See  §§357,  714,  1134;  Harper  v.  Ely,  Fla.   465,  8  So.  Rep.  184;  Stronfr  v.  Bur- 

70  111.581;  Hosier  v.  Norton,  83  111.  519;  dick,  52  Iowa,  630,   3    N.    W.   Rep.  707; 

Page  V.  Foster,  7  N.  H.  392  ;  Weld  v.  Sabin,  Walton  v.  Bagley,  47  Mich.  385,  11  N.  W. 

20  N.  H.  533,  51    Am.  Dec.  240;  Arnold  Rep.   209;  Broquet   v.  Sterling,  56    Iowa, 

V.  Foot,   7  B.  Mon.  66  ;  Grigg  v.   Banks,  357,  9  N.  W.  Rep.  301  ;  Devin  v.  Eagleson, 

59  Ala.  311  ;  Johnson  v.  Payne,   11   Neb.  79  Iowa,  269,44  N.  W.  Rep.  54  5;  Pratt  w. 

269,9  N.  W.  Rep.Sl  ;  Whittaker  r.  Wright,  Pratt,  96  111.  184;  Stiger  v.  Bent,  111  111. 

35  Ark.  51 1  ;  Connecticut  Mut.  L.  Ins.  Co.  328  ;  Athens  Bank  v.  Danforth,  80  Ga.  55, 7 

I'.  Bulte,  45  Mich.  113,  7  N.  W.  Rep.  707  ;  S.  E.  Rep.  .546  ;  Townsend  v.  Case  Threshing 

Spurgiu  V.  Adamson,  70  Iowa,  468,  30  N.  Mach.  Co.  31  Neb.  836,48  N.  W.  Rep.  899. 
W.   Rep.  806;  Horrigan  v.  Wellmuth,  77         As  to  the  personal  liability  of  the  owner 

Mo.    542.     By    statute   in   Indiana:    Acts  of  the  equity  of  redemption   to  the  mort- 

18/9,  ch.  79.  gagee  for  taxes  which  the  owner  has  omitted 

3  Jenness  v.  Robinson,  10  N.  H.  215.  to  pay,  and  the  mortgagee  has  been  obliged 

"•  Silver  Lake   Bank  v.  North,  4  Jolins.  to  pay  in  order  to  save  the  property  from 
Ch.  370. 


'"  Robinson  v.  Ryan,  25  N.  Y.  320. 

«  Lyman  o.  Little,  15  Vt.  576. 

'   Windett  v.  Union  Ins.  Co.  144  U.  S. 


sale,  see   Hogg  v.  Longstreth,  97  Pa.  St. 
255. 

As  to  taxes  paid  after  the  mortgage  is 
merged  in   a  judgment,  see   McCrossen  v. 


581;    Kortright    v.   Cady,    23    Barb.   490;  Harris,  35  Kans.  178. 

Faure  v.  Winans,  Hopk.  283,  14  Am.  Dec.  In   Michigan,    however,   it    is  said   that 

545 ;  Eagle  F.  Ins.  Co.  v.  Pell,  2  Edw.  631 ;  money  paid  by  a  mortgagee  for  taxes,  to 

Robinson  v.  Ryan,  25  N.  Y.  320;  Smith  v.  prevent  a  tax  sale,  does  not  constitute  a 

Roberts,  91  N.  Y.  470;  Rankin  v.  Coar  (N.  lien  apart  from  the  mortgage,  but  is   dis- 

39 


§  1080.]  REDEMPTION   OF   A   MORTGAGE. 

ment  of  any  valid  assessment  for  public  improvement.^  Where  the 
taxes  appear  to  have  been  duly  and  legally  assessed,  and  the  mort- 
gagee has  no  knowledge  or  notice  of  any  defect  or  illegality  in  the 
assessment,  the  mortgagee  is  justified  in  paying  them,  and  his  claim 
of  lien  for  the  payments  made  cannot  be  defeated  by  showing  an 
illegality  or  irregularity  in  the  assessment.^  If  there  has  been  a 
tax  sale,  and  the  validity  of  the  deed  to  the  purchaser  is  doubtful, 
the  mortgagee  is  entitled  to  be  allowed  a  sum  paid  by  him  to  buy 
up  the  tax  title,  not  greatly  exceeding  the  amount  of  the  taxes  and 
interest.^ 

But  although  a  prior  mortgagee  upon  payment  of  the  taxes  due 
upon  the  property  is  subrogated  to  the  lien  of  the  taxes  upon  the 
premises  as  against  subsequent  incumbrancers,  and  may  have  the 
amount  paid  by  him  decreed  a  lien  on  the  property,  he  is  not  sub- 
rogated to  such  lien  as  against  a  purchaser  at  the  foreclosure  sale, 
even  if  such  purchaser  has  agreed  to  reimburse  the  amount  paid. 
The  mortgagee  in  such  case  must  depend  wholly  upon  the  agree- 
ment to  repay.* 

Taxes  upon  the  mortgaged  premises  paid  by  a  mortgagee  very 
generally,  by  the  terms  of  the  mortgage,  would  become  an  addi- 
tional lien  upon  the  premises  under  the  mortgage.  It  is  provided 
by  statute  in  some  States  that  the  amount  so  paid  by  the  mortgagee 
shall  constitute  a  lien  and  be  collectible  with  the  mortgage  debt.''"' 
Such  a  provision,  however,  does  not  entitle  the  mortgagee  to  add  to 
the  mortgage  debt  in  this  way  the  amount  paid  by  him  in  purchas- 
ing at  a  tax  sale.  Such  a  purchase  is  not  a  payment  of  taxes,  but 
a  purchase  of  a  new  lien  upon  the  estate  independent  of  his  mort- 
gage.*^    But  a  mortgagee  by  paying  such  taxes  does  not  acquire  a 

charged    when    the    mortgage   is   satisfied,  ute  for  redemption  after  sale,  has  redeemed 

and  there  can  be  no  subsequent  proceeding  the  mortgaged  premises  from  a  tax  sale,  is 

to  enforce  the  tax  lien  as  against  the  mort-  not  allowed  to  tack  the  sum  paid  for  such 

gagor.     Vincent  v.  Moore,  51  Mich.  618,  17  redemption  to  the  sum  for  which  the  prem- 

N.   W.  Rep.   81  ;    Macomb  v.  Prentis,    78  ises  were  sold  at  the  foreclosure  sale,  and 

Mich.  255,  44  N.  W.  Rep.  324.  to  require  a  second  mortgagee,  seeking  to 

1  Dale  V.  M'Evers,  2  Cow.  118;  Brevoort  redeem,  to  pay  the  amount  of  the  two  sums 
V.  Randolph,  7  How.  I'r.  398  as  a  prerequisite  to  his  redemption  ;  because 

2  Bates  V.  People's,  &c.  Ass.  42  Ohio  St.  redemption  is  allowed  by  statute  (ch.  81, 
655.  §§  13-16,  G.  S.  1891,  §§  5376,  .5379),  upon 

8  Windett  v.   Union   Mut.  Ins.   Co.  144  payment  of  the  amount  for  which  the  prem- 

U.  S.  581,  12  Sup.  Ct.  Rep.  751.  ises  were  sold,  except  that  a  creditor,  on 

*  Manning  v.  Tuthill,  30  N.  J.  Eq.  29.  redeeming,   must   pay  liens    prior    to    his 

fi  New  York  :  R.  S.  1889,  8th  ed.  p.  2462  ;  own  held  by  the  party  from  whom  redemp- 

and  Minnesota:  R.  S.  1866,  ch.  11,  §  152.  tion  is  made.     Nopson  v.  Horton,  20  Minn. 

But  a  mortgiigee  who,  after  his  foreclosure  268. 

sale  and  during  the  period  allowed  by  stat-        ^  Williams  v.  Townsend,  31  N.  Y.  411. 

40 


THE   SUM   PAYABLE    TO    EFFECT    REDEMPTION.  [§  1081. 

right  of  action  against  the  owner  of  the  equity  of  redemption  as 
for  money  paid  to  his  use.^ 

Although  a  mortgagee  has  the  right  to  pay  taxes  and  assess- 
ments upon  the  mortgaged  property,  and  collect  them  as  part  of 
the  mortgage  debt,  he  cannot,  by  bidding  in  the  property  at  a  tax 
sale,  deprive  the  mortgagor  of  his  right  to  redeem.^  A  mortgagor 
is  also  allowed  to  redeem  against  a  mortgagee  who  has  bought  in  an 
outstanding  title,  under  an  arrangement  with  the  mortgagor  that  it 
is  to  be  held  subject  to  redemption,  but  after  acquiring  it  insists 
that  he  purchased  it  as  a  stranger.^ 

If  one  of  several  mortgagees  obtains  an  annulment  of  a  tax  sale 
of  the  mortgaged  property,  this  inures  to  the  benefit  of  all  the 
mortgagees,  so  far  as  the  vacating  of  the  tax  conveyance  is  con- 
cerned, though  the  mortgagee  who  obtained  such  annulment  is  enti- 
tled to  be  reimbursed  out  of  the  mortgaged  property.^ 

1081.  A  subsequent  mortgagee  may  redeem  a  prior  mort- 
gage without  paying  any  other  claim,  such  as  the  amount  of  a 
judgment  the  prior  mortgagee  has  obtained  against  the  mortgagor.^ 
As  against  a  subsequent  incumbrancer,  any  other  debt  due  from 
the  mortgagor,  not  a  charge  upon  the  mortgaged  premises,  cannot 
be  tacked  to  the  mortgage.^  Nor  can  the  mortgagee,  by  purchasing 
a  mortgage  upon  other  land  of  the  mortgagor,  compel  him  to  redeem 
both  mortgages,  if  either.''  The  mortgagee  cannot  require  the  pay- 
ment of  any  other  debt,  not  a  charge  upon  the  premises,  as  a  condi- 
tion of  a  redemption.^ 

When  a  junior  mortgagee  seeks  to  redeem  a  prior  mortgage,  he 
is  entitled  to  a  decree  upon  paying  the  sum  due  upon  that  mort- 
gage, although  the  holder  of  the  prior  mortgage  has  another  claim 
upon  the  mortgaged  property  which  is  subsequent  to  the  plaintiff's 
mortgage.  The  defendant  may,  however,  file  a  cross-bill  to  redeem 
the  plaintiff's  mortgage,  by  virtue  of  the  subsequent  claim,  and  in 
that  case  the  plaintiff  would  not  succeed  in  redeeming  unless  he 
paid  both  the  liens  held  by  the  defendant.^ 

1  Raynsford  v.  Phelps,  43  Mich.  342,  38    kins  v.  Continental  Ins.  Co.  12   How.  Pr. 
Am.  Rep.  189,  5  N.  W.  Rep.  403.     See,  in    66. 

this  connection.  Swan  v.  Emerson,  129  Mass.  '^  Burnet  v.  Denniston,  5  Johns.  Ch.  35  ; 

289.  Benton  v.  Kent,  61  N.  H.  124. 

2  See  §  714;  Williams  v.  Townsend,  31  ^  Cleaveland  v.  Clark,  Brayt.  (Vt.)  165. 
N.  Y.  411.  8  Burnet  v.  Denniston,  5  Johns.  Ch.  35  ; 

3  Moore  v.  Titman,  44  111.  367.  Perdue  v.  Brooks,  85  Ala.  459,  5  So.  Rep. 
*  Weaver  i-.  Alter,  3  Wood.s,  152.  126  ;  Cohn  v.  Hoffman,  56  Ark.  119.  19  S. 
5  McKinstry  v.  Mervin,  3  Johns.  Ch.  466  ;     W.  Rep.  233. 

Pardee  v.  Van  Anken,  3  Barb.  534;  Jen-        »  Green  v.  Tanner,  8  Met.  411  ;  Palmer 

V.  Fowley,  5  Gray,  545,  548. 

41 


§§  1082,  1083.]  REDEMPTION   OF   A   MORTGAGE. 

Where  the  holder  of  a  first  mortgage  also  holds  a  third  mort- 
gage upon  the  same  premises  as  collateral  to  the  first,  and  sells  the 
property  under  a  foreclosure  of  the  third  mortgage,  inasmucli  as  the 
sale  operates  to  discharge  the  first  mortgage,  the  holder  of  the  sec- 
ond mortgage  can  redeem  the  property  only  by  paying  the  amount 
of  the  first  mortcjage  debt.^ 

1082.  The  English  doctrine  of  tacking,  whereby  a  junior  mort- 
gagee, by  purchasing  the  first  mortgage,  was  allowed  to  squeeze  out 
an  intermediate  mortgage  or  judgment  lien,  never  gained  any  gen- 
eral recognition  in  this  country,  because  at  an  early  day  registry 
laws  were  adopted,  and  under  these  priority  of  registry  gave  prior- 
ity of  right.  Tacking  was  only  allowed  when  the  last  mortgagee 
took  his  mortgage  without  notice  of  the  intervening  incumbrance. 
Under  laws,  therefore,  making  the  recording  of  the  deed  notice  to 
all  who  might  come  after,  there  was  no  chance  for  the  application 
of  this  doctrine ;  and  this  was  so  declared  in  several  early  cases.^ 
In  England  this  doctrine,  first  established  through  the  influence  of 
Sir  Matthew  Hale,^  has  now  been  abolished. 

Neither  can  the  first  mortgagee,  by  purchasing  the  equity  of  re- 
demption, squeeze  out  an  intervening  mortgage  ;  but  the  holder  of 
it  may  still  redeem  the  first  mortgage,  and  compel  the  holder  of  the 
equity  of  redemption  to  redeem  or  be  foreclosed.* 

1083.  Consolidating  mortgages.  —  The  doctrine  in  England 
is,  that  one  holding  several  mortgages  made  by  the  same  mort- 
gagor, though  of  different  dates  and  covering  different  parcels  of 
land,  may  consolidate  them  in  one  suit  for  foreclosure,  and  neither 
the  mortgagor  nor  a  purchaser  of  the  equity  of  redemption  of  a 
parcel  covered  by  one  mortgage  will  be  allowed  to  redeem  this 
parcel  without  also  redeeming  all  other  mortgages  by  the  same 
mortgagor  held  by  the  plaintiff  and  included  in  his  suit,  whether 
he  acquired  them  before  or  since  the  purchase,  and  whether  the 
purchaser  had  notice  of  the  existence  of  the  other  mortgages  or 
not.  A  mortgagee  of  a  lot  covered  by  one  of  such  mortgages 
stands  in  the  same  position  as  regards  redemption  as  a  purchaser 
for  value.  ^ 

In  like  manner,  in  a  few  cases  in   this  country  it  has  been  held 

1  Strong  V.  Burdick,  52  Iowa,  630,  3  N.        ^  Thompson  v.  Chandler,  7  Me.  377. 

W.  Rep.  707.  6  §  i45g  •  Beevor  v.  Luck,  L.  R.  4  Eq. 

2  Grant  v.  U.  S.  Bank,  1  Caines  Cas.  112  537  ;  Tassell  v.  Smith,  2  De  G.  &  J.  713  ; 
(1804).     See  §  569.  Vint  v.  Padget,  2  De  G.  &  J.  611  ;  Cum- 

3  Marsh  v.  Lee,  2  Vent.  337,  1  Ch.  Cas.  mins  v.  Fletcher,  L.  R.  14  Ch.  D.  699;  Mills 
162.     And  see  Brace  v.  Marlborough,  2  P.  v.  Jennings,  L.  R.  13  Ch.  D.  639. 

Wms.  491. 

42 


THE  SUM  PAYABLE  TO  EFFECT  REDEMPTION.   [§§  1084,  1085. 

that  a  mortgagor  going  into  equity  to  redeem  is  bound  to  do  equity, 
and  therefore  must  pay  all  other  debts,  though  unsecured,  which  he 
owes  to  the  holder  of  the  mortgage.^  This  rule  has  been  held  to 
be  especially  applicable  in  case  a  grantor  who  has  given  an  absolute 
deed  as  security  for  a  debt  invokes  the  aid  of  equity  as  a  protection 
against  the  holder  of  the  legal  title  ;  he  will  be  required  to  pay,  not 
only  the  debt  which  the  absolute  conveyance  was  intended  to  se- 
cure, but  also  whatever  else  he  may  owe  the  holder  of  such  title.^ 
This  principle  has  sometimes  been  applied  when  the  mortgagor  has 
sought  the  recovery  of  the  surplus  proceeds  of  a  foreclosure  sale  of 
the  premises.  But  where,  on  the  other  hand,  the  mortgagee  seeks 
a  foreclosure,  the  mortgagor  is  permitted  to  redeem  upon  payment 
of  the  mortgage  debt  alone.^  But  the  prevailing  doctrine  is,  that 
a  mortgagor  may  always  redeem  by  paying  the  specific  debt  secured 
by  the  mortgage,  together  with  such  prior  liens  as  the  mortgagee 
may  have  been  compelled  to  pay  for  the  protection  of  the  mort- 
gage.* The  mortgagee  cannot  require  as  a  condition  of  redemption 
the  payment  of  any  other  debt  not  a  lien  upon  the  land.^ 

1084.  Costs  of  previous  foreclosure.  —  Upon  redemption  after 
foreclosure  by  one  having  an  interest  in  the  estate  who  was  not 
made  a  party  to  the  suit,  the  costs  of  the  previous  foreclosure  can- 
not be  added  to  the  principal  and  interest  of  the  mortgage  debt  in 
making  up  the  amount  to  be  paid ;  ^  nor  can  the  attorney's  fees  of 
the  mortgagee  in  the  foreclosure  suit  be  added.'^ 

But  expenses  necessarily  incurred  by  a  mortgagee  in  redeeming 
a  prior  incumbrance  upon  the  property  are  justly  chargeable  to  the 
owner  of  the  estate  upon  redemption.^ 

In  redeeming  from  one  whom  the  mortgagor  has  induced  to 
purchase  the  mortgage,  upon  his  promise  in  writing  to  pay  ^the 
whole  sum  advanced  with  interest,  an  assignee  of  the  equity  of 
redemption  with  notice  must  pay  all  that  the  mortgagor  must  have 
paid.^ 

1085.  Over-payment  to  prevent  foreclosure.  —  If  a  mortgagor 

1  Scripture    v.    Johnson,   3    Conn.   211;  ^  Mahoney  v.  Bostwick,  96  Cal.   53,30 

Powis   P.  Corbet,  3    Atk.  556 ;  Walling   v.  Pac.  Rep.  1020. 

Aiken,  1   McMull.  Ch.  1  ;  Bank  of  S.  C.  v.  «  Gage  v.  Brewster,  31  N.  Y.  218,  revers- 

Ko.se,  1  Strobh.  Eq.  257.  ing  30  Barb.  387  ;  Moore  v.  Cord,  14  Wis. 

^  Walling  V.  Aikin,  McMull.  Eq.  1 ;  Lake  213  ;    Benedict    v.    Oilman,   4    Paige,   58  ; 

V.  Shumate,  20  S.    C.  23  ;   Levi   v.  Black-  Vroom  v.  Ditmas,  4  Paige,  526 ;  Hosford  v. 

well,  35  S.  C.  511,  15  S.  E.  Pep.  243.     See  Johnson,  74  Ind.  479. 

§  360.  7  Bonthirant  v.  Taylor,  3  Greene,  561. 

3  Anthony  v.  Anthony,  23  Ark.  479.  *  Miller  v.  Whitticr,  36  Me.  577. 

*  Beck  V.  Ruggles,  6  Abb.  N.  C.  69  ;  Kipp  «  Holbrook  v.  Worcester  Bank,  2  Curtis, 

V.  Delamater,  58  How.  Pr.  183.  244. 

43 


§  1086.]  REDEMPTION    OF   A    MORTGAGE. 

is  compelled  to  pay  to  a  mortgagee  in  possession  more  than  is  legally 
due,  in  order  to  redeem  and  prevent  a  foreclosure,  the  payment  is 
such  a  compulsory  one  as  entitles  the  mortgagor  to  recover  the 
amount  overpaid  in  an  action  for  money  had  and  received.^  In  such 
action  the  same  legal  and  equitable  rules  are  applied  which  are  ap- 
plicable to  a  settlement  of  the  mortgagee's  account  upon  a  bill  in 
equity'  to  redeem  ;  and  whether  the  mortgagee's  charges  are  reason- 
able is  not  an  open  question  to  be  left  to  the  jury,  but  a  question  of 
law  to  be  decided  by  the  court,  according  to  the  facts  and  circum- 
stances found  by  the  jury. 

In  like  manner  where  redemption  is  allowed  for  a  certain  tiuie 
after  a  foreclosure  sale,  the  person  entitled  to  redeem  may  properly 
pay  under  protest,  in  order  to  save  the  estate,  whatever  the  officer 
may  demand,  though  it  be  too  much,  and  recover  the  excess  of  the 
payment  afterwards.^ 

1086.  A  mortgagee  cannot  be  compelled  to  assign  the  mort- 
gage upon  receiving  payment  of  it ;  he  can  only  be  required  to 
release  or  discharge  it :  ^  much  less  can  a  prior  mortgagee  be  com- 
pelled to  sell  and  assign  his  mortgage  to  a  junior  mortgagee,  when 
the  latter  does  not  offer  to  pay  or  redeem  the  prior  mortgage ;  and 
the  refusal  of  the  latter  to  assign  his  mortgage  is  no  evidence  of 
fraud  on  his  part  in  foreclosing  his  mortgage.^  If  the  person  who 
redeems  is  interested  in  only  a  portion  of  the  property,  he  becomes 
in  equity  an  assignee  of  the  mortgage  for  the  purpose  of  compelling 
a  contribution  from  those  who  own  the  other  portions  of  the  equity 
of  redemption  without  any  formal  transfer  of  the  mortgage  to  him. 
He  is  subrogated  to  the  rights  of  the  mortgagee  by  operation  of 
law.  Having  assumed,  for  his  own  protection,  more  than  his  share 
of  the  common  burden,  he  is  fully  protected  under  this  settled  rule 
of  equity,  and  without  any  act  on  the  part  of  the  mortgagee  may 
enforce  his  equitable  rights  to  contributions  against  the  other  par- 
ties in  interest.  He  can  call  upon  them  to  pay  their  shares  of  the 
incumbrance,  or  to  be  foreclosed  of  all  right  of  redemption.^ 

1  Close  V.  Phipps,  7  M.  &  G.  586  ;  Fraser  zens'  Sav.  Bank,  16  R.  I.  734,  19  Atl.  Rej). 
V.  Pendlebury,  10  W.  R.  104  ;  Cazeuove  v.  654  ;  McCulla  v.  Beadleston,  17  R.  I.  20,  20 
Cutler,  4  Met.  246.  And  see  Farwell  v.  Atl.  Rep.  11;  Hamilton  r.  Dobbs,  19  N.  J. 
Sturdivant,  37  Me.  308 ;  Windbiel  v.  Car-  Eq.  227  ;  Bigelow  v.  Cassedy,  26  N.  J.  Eq. 
roll,  16  Hun,  101.  557  ;  Chedel  v.  Millard,  13  R.  I.  461  ;  Gate- 

2  McMillan   v.  Richards,  9  Cal.  365,  70  wood  v.  Gatewood,  75  Va.  407. 
Am.  Dec.  655.  *  Ciiase  v.  Williams,  74  Mo.  429. 

3  See  §  792;  Lamb  v.  Montague,  112  ^  Young  v.  Williams,  17  Conn.  393; 
Mass.  352;  Lamson  v.  Drake,  105  Mas^s.  Averill  v.  Taylor,  8  N.  Y.  44;  Brainard 
564 ;  Butler  v.  Taylor,  5  Gray,  455  ;  Chedel  v.  Cooper,  10  N.  Y.  356  ;  Burnet  v.  Dennis- 
V.  Millard,  13  R.  I.  461  ;  Holland  v.  Citi-  ton,  5   Johns.  Ch.  35;   McLean  v.  Towle, 

44 


THE   SUM    PAYABLE    TO   EFFECT    REDEMPTION.  [§  1087. 

In  like  manner  when  a  junior  mortgagee  or  other  incumbrancer 
redeems  from  a  prior  mortgage,  although  he  has  «o  right  to  demand 
a  written  assignment  of  the  mortgage,  he  has"  the  right  to  have  the 
mortgage  delivered  to  him  uncancelled,  and  this  in  equity  is  a  com- 
plete assignment  of  it.  Such  redemption  puts  him  in  the  place  of 
the  mortgagee,  and  gives  him  all  the  mortgagee's  rights  against 
the  mortgagor.^  He  thereupon  becomes  entitled  to  hold  it  as  an 
existing  mortgage,  until  the  owner  redeems  or  he  himself  fore- 
closes it. 

The  rule  is  the  same  whether  the  redemption  take  place  before 
any  proceedings  to  foreclose  are  had,  or  after  foreclosure  proceed- 
ings have  been  commenced,  but  have  not  terminated  in  a  complete 
foreclosure  by  the  expiration  of  the  time  of  redemption.^ 

If  there  be  an  exception  to  this  rule,  it  is  in  case  the  party  mak- 
ing the  payment  occupies  such  a  relation  to  the  mortgage  or  the 
parties  in  interest  that  he  is  entitled  to  be  substituted  in  the  posi- 
tion of  the  mortgagee  upon  paying  the  mortgage,  for  such  a  person 
may  sometimes  in  equity  require  an  assignment  of  the  mortgage 
and  other  securities  for  his  protection  and  indemnity  ;  though  a 
court  of  equity  will  often  treat  the  assignment  as  made  without  an 
actual  execution  of  it.^ 

1087.  In  some  States,  however,  it  is  an  established  doctrine 
that  a  mortgagee  may  be  compelled,  upon  payment  of  his  mortgage, 
to  make  an  assignment  of  it  when  this  will  afford  a  more  complete 
protection  to  the  person  who  has  paid  the  money,  and  he  is  not  pri- 
marily liable  to  pay  it,  but  is,  for  instance,  a  surety  or  a  junior  in- 
cumbrancer.^    This  right  to  an  assignment  rests  wholly  upon  the 

3  Sandf.  Cli.  117,  119;   Powers  v.  Golden        *  New  York :  Johnson  f.  Zink,  52  Barb. 

Lumber  Co.  43  Mich.  468,  5  N.  W.  Rep.  396 ;  Pardee  v.  Van  Anken,  3  Barb.  534 ; 

656  ;  Long  v.  Kaiser,  81  Mich.  518,  46  N.  \V.  Tompkins  v.  Seely,  29  Barb.  212  ;  McLean 

Rep.  19;  Mattison  y.  Marks,  31  Mich.  421.  y.  Tompkins,    18   Abb.    Pr.    24;    Jenkins 

1  Hamilton  v.  Dobbs,  19  N.  J.  Eq.  227;  v.  Continental  Ins.  Co.  12  How.  Pr.  66; 
Dodge  V.  Fuller,  2  Flip.  603,  48  Fed.  Rep.  Dauchy  v.  Bennett,  7  How.  Pr.  375 ;  Ells- 
347;  Mattisonv.  Marks,  31  Mich.  421;  Hoi-  worth  v.  Lockwood,  42  N.  Y.  89;  Bayies 
land  V.  Citizens'  Sav.  Bk.  16  R.  L  734,  19  v.  Husted,  40  Hun,  376;  Piatt  v.  Brick,  35 
Atl.  Rep.  654.     Per  Durfee,  C.  J.:  "The  Hun,  121.     See  §  792. 

right  of  the  mortgagee  originates   in    the  Michigan:    Moore  v.  Smith  (Mich.),  54 

mortgage ;  and  we  do  not  see  how,  on  princi-  N.  W.  Rep.  701  ;  Lamb  v.  Jeffrey,  41  Mich. 

])le,  after  the  mortgage  has  been  given,  any  719,  3  N.  W.  Rep.  204;  Sager  i'.  Tupper, 

other  person,  by  acquiring  an  interest  in  the  35  Mich.  134. 

mortgaged  property,  can  acquire  an  equity  In  Iowa  an  assignment  maybe  demanded 

against  him  at  variance  with  his  right,  so  under  Code  1880,   §   3323.     If  the   senior 

long  as  he  himself  does  nothing  to  create  mortgage  covers  a  homestead,  which  is  not 

it."  included  in  the  junior  mortgage,  the  junior 

2  Dodge  V.  Fuller,  2  Flip.  603.  mortgagee  upon  redeeming  is  entitled  only 
•*  Gatewood  v.  Gatewood,  75  Va.  407.  to  an  assignment  of  the  part  not  including 

45 


§  1088.]  REDEMPTION   OF   A   MORTGAGE. 

assumption  that  the  person  redeeming  cannot  otherwise  be  pro- 
tected. In  other  courts  protection  is  given  in  all  cases  upon  the 
principle  of  subrogation  by  law.  The  mortgagee  is  not  allowed  to 
discharge  the  mortgage  of  record,  but  is  required  to  deliver  it,  with 
the  note  or  bond  which  accompanies  it,  to  the  person  redeeming, 
who  may  enforce  the  obligations  if  necessary  in  the  name  of  the 
mortgagee.  An  assignment  of  the  mortgage  and  debt  assumes  a 
sale  of  them,  which  a  mortgagee  cannot  be  compelled  to  make. 
Subrogation,  on  the  other  hand,  assumes  the  payment  of  the  debt 
by  one  not  liable  primarily  to  pay  it;  but  by  paying  it  the  law 
says  that  the  person  making  the  payment  steps  into  the  place  and 
rights  of  the  mortgagee  who  receives  the  payment. 

To  enable  a  subsequent  mortgagee  to  compel  an  assignment  to 
himself  of  a  prior  mortgage  paid  by  him,  it  was  formerly  said 
that  there  must  be  some  equitable  reason  for  it,  and  that  the 
mere  fact  that  he  is  a  subsequent  mortgagee  does  not  constitute 
such  equitable  reason;  ^  but  the  Court  of  Appeals  in  a  recent  case 
has  decided  that  a  junior  mortgagee,  upon  paying  a  senior  mort- 
gage, may  compel  an  assignment,  although  he  does  not  occupy  the 
position  of  a  surety.^ 

Application  for  an  assignment  may  be  made  in  the  foreclosure 
proceedings,  if  such  are  pending,  accompanied  by  an  offer  to  pay 
whatever  sum  is  due  upon  the  mortgage  and  for  costs.^  If  no 
such  suit  is  pending,  and  the  mortgagee  declines  a  tender  of  the 
amount  due,  accompanied  by  a  demand  for  an  assignment,  he 
may  bring  a  bill  to  redeem  in  the  usual  form,  except  in  asking 
for  an  assignment  of  the  mortgage  to  himself  instead  of  a  dis- 
charge of  it."^ 

1088.  A  tender  made  after  breach  of  the  condition,  except  in 
those  States  where  the  common  law  doctrine  has  been  changed, 
does  not  reinvest  the  mortgagor  with  the  legal  estate  ;5  and  the 
effect  of  it  generally  is   only  to  allow  a  suit  to   be  brought  for  re- 

the  homestead.     Grant  w.  Parsons,  67  Iowa,  sitting  as  a  court  of  equity.     Laws   1885, 

31,  24  N.  W.  Hep.  578.  No.  123. 

In  Pennsylvania  it  is  provided  that   an  ^  Frost  v.  Yonkers  Savings  Bank,  8  Hun, 

assignment  may  be  required  upon  payment  26  ;    Vandercook   v.   Cohoes    Sav.    Inst.    5 

in  the  following  cases :    1.  Where  the  lands  Hun,  641  ;  Ellsworth  v.  Lockwood,  42  N.  Y. 

belong  to   minors  and   an    assignment  is  89. 

for  their  interest;  2.  Where  they  are  held  '^  Twombly  v.  Cassidy,  82  N.  Y.  155. 

by  will,  or  for  life  with   remainder  over;  ^  Hornby  v.  Cramer,  12  How.  Pr.  490. 

3.  Where  they  are  held  in  trust ;  4.  Where  *  gge  Smith  v.  Green,  1  Coll.  555. 

they   have   descended   nnder   the   intestate  ^  gge  §  892;  Smith  v.  Anders,  21   Ala. 

law.     The  assignment  in  such  cases  may  be  782  ;  Patchin  v.  Pierce,  12  Wend.  61. 
enforced  by  the  Court  of  Common  Picas 

46 


THE   SUM    PAYABLE    TO    EFFECT    REDEMPTION.  [§  1088. 

deraption  within  a  certain  time  as  provided  by  statute  in  several 
States,  or  to  throw  the  costs  of  the  suit  upon  the  mortgagee  in  case 
the  tender  was  of  a  sufficient  amount  to  fully  satisfy  his  claim.^ 
Of  course  the  acceptance  of  the  whole  sum  tendered  operates  as  a 
waiver  of  the  foreclosure,  and  a  restoration  of  the  mortgagor's 
title.2 

A  tender,  to  be  good,  must  be  of  the  whole  amount  due.^  It 
must  be  made  to  the  mortgagee  or  his  assignee.*  If  an  assignment 
has  been  made  but  not  recorded,  it  is  the  duty  of  the  person  who 
wishes  to  make  a  tender  to  seek  out  the  assignee.^  But  if  the 
mortgagee  on  inquiry  refuses  to  disclose  the  name  of  his  assignee, 
and  the  mortgagor  has  no  notice  of  the  assignment,  he  may  make  a 
tender  to  the  mortgagee  and  maintain  against  him  his  bill  to  redeem.^ 
A  tender  to  the  legal  holder  of  the  mortgage  of  the  whole  amount 
due  on  it  is  good  although  only  a  portion  of  it  belongs  to  him,  and 
the  balance  to  some  other  person  for  whom  he  holds  the  mortgage 
in  trust." 

A  tender  must  be  made  unconditionally.^  An  offer  to  pay  if  the 
defendant  "  would  reassifjn  and  transfer  "  to  him  is  not  sufficient ;'' 
nor  is  one  conditioned  upon  the  execution  of  a  quitclaim  deed  in 
addition  to  a  discharge.^^  As  to  the  place  of  tender,  if  no  place  of 
payment  is  mentioned  in  the  mortgage  deed,  and  none  has  been 
agreed  upon  by  the  parties,  the  mortgagor  must  seek  the  mortgagee 
and  make  a  personal  tender. ^^  The  mortgagee  should  be  sought  at 
his  place  of  business,  though  under  many  circumstances  a  tender  at 
his  house  is  proper. ^^ 

A  tender  of  bank  notes  or  bills  which  are  not  made  a  legal  ten- 
der is  sufficient,  if  not  objected  to  on  that  account;  ^^  and  in  like 
manner  a  tender  of  a  larger  sum  than  is  due,  whereby  the  creditor 
is  obliged  to  make  change  or  to  return  a  part,  is  good  if  no  objec- 

1  Lamson    v.    Drake,    105     Mass.  564,    Peake,  79  ;  Loring  v.  Cooke,  3   Pick.  48. 
568.  See  §  900. 

2  Patchin  f.  Pierce,  12  Wend.  61.  ^  Ferguson     v.   Wagner,   41    Ind.   450; 

3  Graham  v.  Linden,  50  N.  Y.  547  ;  Litt.     Wendell  v.  New  Hampshire  Bank,  9  N.  H. 
§§  334,  337.     See  §  894.  404. 

4  Dorkray  v.  Noble,  8  Me.  278.  lo  Dodge  v.  Brewer,  31  Mich.  227. 

5  Mitchell  V.  Burnham,  44  Me.  286.  "  See  §  897 ;  Gyles  v.  Hall,  2  P.  Wnis. 

6  Fritz   V.    Simpson,   34   N.  J.  Eq.  436;    378;  Sharpnell  t;.  Blake,  2  Eq.  Cas.  Abr. 
Mitchell  V.  Burnham,  44  Me.  286.  604. 

"  Cliff  V.    Wadsworth,  2  Y.  &  C.  C.  C.  ^-^  Manning  v.  Surges,  1  Ch,  Cas.  29. 

598  ;   Graham   v.   Linden,  50   N.   Y.  547  ;  ^'^  Austen   v.  Dodwell,   1    Eq.  Cas.  Abr. 

Lindsay  v.  Matthews,  17  Fla.  575.  318;   Lockyer  v.   Jones,   Peake,    180,   n. ; 

8  Evansv.  Judkin8,4  Camp.   156;  Glass-  Biddulph  v.   St.  John,  2  Sch.  &  Lef.  521  ; 

cott   V.    Day,    5    Esp.   48;  Cole   v.   Blake,  Fellows  y.  Dow,  58  N.  H.  21. 

47 


§  1088.]  REDEMPTION    OF   A   MORTGAGE. 

tion  is  made.i  The  money  should  be  actually  produced,  for  though 
the  creditor  may  refuse  at  first,  the  sight  of  the  money,  it  is  said, 
may  tempt  him  to  take  it.^  But  this  may  be  waived  by  the  mort- 
gagee, as  by  requesting  the  mortgagor  not  to  trouble  himself  to  go 
to  another  part  of  the  house  for  it ;  ^  or  by  refusing  to  look  at  it.* 
A  tender  of  money  in  bags  is  good,  if  the  money  is  actuall}^  con- 
tained ill  them  ;^  and  so  of  notes  twisted  in  a  roll.^  A  mistake  in 
the  value  of  a  coin  included  in  the  tender  may  be  relieved  against.'' 

The  tender  must  be  made  at  a  proper  time.  If  a  certain  hour 
be  fixed  for  the  payment  of  the  money,  tlie  mortgagor's  attend- 
ance at  any  time  before  the  beginning  of  the  next  hour  is  suffi- 
cient. In  a  case  where  the  hour  was  fixed  at  three  o'clock,  and  the 
mortgagor  attended  before  four  o'clock  to  make  payment,  he  was  not 
bound  to  pay  interest  afterwards,  although  the  mortgagee  had 
waited  from  a  quarter  before  three  till  a  quarter  after  that  hour.^ 

If  the  mortgagor  requests  the  rendering  of  an  account  of  the 
amount  due,  the  request  must  be  so  made  in  respect  to  time  and 
place  as  to  give  the  mortgagee  an  opportunity  to  render  an  account.^ 
A  request  niade  upon  the  mortgagee  when  absent  from  home  in  an- 
other town,  and  a  reply  by  him  that  he  would  give  all  the  informa- 
tion in  his  power  if  the  mortgagor  would  call  upon  him  at  home, 
do  not  amount  to  a  demand  for  an  account  and  a  refusal  to 
render  it.^*^ 

When,  on  the  day  before  the  expiration  of  the  time  for  redeem- 
ing land  from  a  mortgage,  a  person  in  behalf  of  the  mortgagor 
called  upon  the  mortgagee  and  asked  him  to  execute  a  quitclaim 
deed  and  receive  the  money  due  on  the  mortgage,  but  he  declined 
to  do  so,  and  said  he  wished  to  see  the  mortgagor,  whom  he  would 
meet  in  two  days,  and  then  would  take  no  advantage  of  the  expi- 
ration of  the  time,  it  was  held  that  the  tender  was  sufficient  to 
entitle  the  mortgagor  to  redeem  if  the  tender  was  made  by  his 
authority.^^  Oral  authority  from  the  mortgagor,  or  a  subsequent 
ratification  by  him,  is  sufficient. ^^ 

1  Black  V.  Smith,  Peake,  88.     See  §  901.    2  Car.  &  P.  77 ;  Leatherdale  v.  Sweepstone, 

2  Douglas    V.    Patrick,    3    T.    K.    683;    3  Car.  &  P.  342;  Glasscott  v.  Day,  5  Esp. 
Thomas  v.  Evans,  10  East,  101 ;  Dickinson     48;  Thomas  v.  Evans,  10  East,  101. 

V.  Shee,  4  Esp.  67.  '  Abbott  v.  Banfield,  43  N.  H.  152. 

3  Douglas  V.  Patrick,  3  T.  R.  683  ;  Hard-  »  See  §  898  ;  Knox  v.  Simmons,  4    Bro. 
ing  V.  Davies,  2  Car.  &  P.  77.  C.  C.  433. 

4  Fellows  V.  Dow,  .58  N.  H.  21.  9  Willard  v.  Fiske,  2  Pick.  540  ;  Putnam 

5  Wade's  case,  5  Rep.  115  a.     See  con-  v.  Putnam,  13  Pick.  129. 
flicting  case,  Sucklinge  v.  Coney,  Noy,  74.  ^'>  Fay  v.  Valentine,  2  Pick.  546. 

6  Alexander  v.  Brown,  1  Car.  &  P.  288.  "  Walden  v.  Brown,  12  Gray,  102. 
For  tenders  held  bad,  see  Harding  v.  Davies,  J2  Walden  v.  Brown,  12  Gray,  102. 

48 


CONTRIBUTION   TO   REDEEM.  [§  1089. 

VI.   Contribution  to  redeem. 

1089.  In  general.  —  When  the  estates  of  two  persons  are  sub- 
ject to  a  common  mortgage,  which  one  of  them  pays  for  the  benefit 
of  both,  he  has  a  right  to  hohi  the  whole  estate  thus  redeemed  until 
the  other  party  shall  pay  an  equitable  proportion  of  the  sum  paid 
to  redeem  ;  or  the  party  who  has  paid  the  incumbrance  may  in 
equity  enforce  contribution  from  the  other.^  But  to  entitle  one  to 
contribution  from  the  other,  their  equities  must  be  equal.^  If  there 
was  any  obligation  resting  upon  the  person  who  paid  the  incum- 
brance to  discharge  it  as  a  debt  of  his  own,  he  can  of  course  claim 
nothing  from  the  other,  although  the  latter  was  benefited  by  the 
payment;  and  on  the  other  hand,  if  it  was  the  duty  of  the  latter 
to  pay  the  whole  incumbrance,  the  payment  of  it  by  the  former 
gives  him,  not  a  right  to  contribution,  but  a  right  to  hold  the  mort- 
gage as  a  subsisting  security  against  the  other  part  owner;  in  other 
words,  he  is  subrogated  to  the  position  of  the  mortgagee.  The 
right  of  subrogation  has  already  been  spoken  of,  and  it  remains 
to  be  considered  under  what  circumstances  the  right  to  contribu- 
tion arises. 

The  test  by  which  the  right  to  contribution  is  always  deter- 
mined is  found  in  the  inquiry  whether  the  equities  of  the  parties 
are  equal:  if  they  are  equal,  the  right  to  contribution  exists;  but 
if  they  are  not  equal,  it  does  not  exist.  A  mortgagor  who  has  sold 
a  portion  of  the  land  covered  by  the  mortgage  by  a  warranty  deed 
cannot  claim  contribution  of  the  purchaser,  because  he  is  himself 
liable  for  the  whole  debt.  Neither  can  a  subsequent  purchaser  call 
upon  a  prior  one  for  contribution,  because  such  subsequent  pur- 
chaser acquires  only  the  rights  the  mortgagor  then  had,  and  there- 
fore the  equities  of  the  two  purchasers  are  not  equal. ^ 

One  tenant  in  common  j)aying  a  general  incumbrance  upon  the 
common  estate,  for  which  neither  tenant  is  personally  liable,  has 
no  claim  for  contribution  against  his  co-tenant.  His  only  remedy 
is  to  pay  the  incumbrance,  and  then  enforce  that  by  foreclosure 
against  his  co-tenant.  He  cannot  compel  his  co-tenant  to  redeem 
his  half  of  the  land.  The  co-tenant  has  his  option  whether  he 
will  redeem  or  let  his  interest  go.     No   personal  obligation  rests 

'  Chase    V.    Woodbury,    6    Cush.    143  ;  46  ;  Aiken  v.  Gale,  37  N.  H.  501 ;  Datum  v. 

Sch(tnewiild  'V.    I\ife<fenj^-8   Bilidw.    389;  iJamm,  91  Mich.  424,  51  N.  W.  Kep.  1069. 

Wied  V.  Ciilkiiis,  24  Iluu,  582  ;  Coflin  v.  ^  Weed  v.  Calkins,  24  Hun,  582. 

Parker,   127  N.  Y.    117,  27  N.  K.  IJep.  814,  •''  Kilborn  v.  Kobbius,  8  Allen,  466;  San- 

2   N.    Y.  .Supp.   75;   ytmciiK   v.   Cooper,  1  ford    v.   Hill,   46  Conn.   42;  Hendersou   v. 

Jobiis.  Cli.  425 ;   Salem  v.  Edyeriy,  33  N.  H.  Truitt,  95  Ind.  309,  quoting  text. 

VOL.    U.  4  49 


§  1090.]  REDEMPTION   OF  A   MORTGAGE. 

upon  liim  to  redeem,  or  to  pay  any  part  of  the  mortgage  debt. 
The  mortgage  is  a  burden  upon  the  land,  and  its  payment  not  a 
personal  duty  ;  and  therefore  he  may  exercise  his  option  whether 
he  will  save  his  interest  by  paying  the  debt,  or  let  his  interest  be 
foreclosed.^ 

Wlien  a  mortgage  is  foreclosed  by  a  suit  in  equity,  or  an  equitable 
suit  under  the  codes  adopted  in  many  States,  the  equities  of  pur- 
chasers of  portions  of  the  mortgaged  estate  are  protected  by  a 
direction  in  the  decree  of  sale  that  the  parcels  be  sold  in  the  in- 
verse order  of  alienation.^  Where  the  foreclosure  is  effected  in 
other  ways,  as,  for  instance,  by  sale  under  a  power,  by  entry  and 
possession,  by  strict  foreclosure,  by  a  writ  of  entry  or  other  suit 'at 
law,  the  remedy  of  one  whose  estate  is  not  primarily  liable  for  the 
satisfaction  of  the  mortgage  is  to  redeem  it,  and  then  enforce  it 
against  that  part  of  the  mortgaged  premises  which  in  equity  should 
bear  the  burden.^ 

1090.  The  general  rule,  therefore,  as  to  contribution  is,  that 
■where  the  estates  of  two  or  more  persons  are  subject  to  one  com- 
mon incumbrance,  which  one  pays  for  the  benefit  of  all,  he  is  enti- 
tled to  hold  the  whole  estate  which  he  has  thus  redeemed  until  the 
others  pay  their  proportionate  and  equitable  share  of  the  sum  so 
paid  for  the  common  benefit  of  all.*  But  to  entitle  the  several 
owners  to  a  pro  rata  contribution,  they  must  stand  upon  the  same 
equal  ground.  If  a  mortgagor  conveys  the  mortgaged  land  in  sep- 
arate parcels  by  warranty  deeds,  and  afterwards  pays  the  mort- 
gage debt,  he  is  not  entitled  to  contribution  from  the  purchasers, 
because  he  pays  merely  his  own  debt,  which  his  covenants  bound 
him  to  pay.^  And  so  any  one  purchasing  a  part,  while  the  mort- 
gagor himself  remains  owner  of  another  part,  has  the  right  to  have 
the  part  so  remaining  in  his  grantor  first  applied  to  satisfy  the  in- 
cumbrance. The  heir  of  the  mortgagor  is  under  the  same  obliga- 
tion. In  Harbert's  case  it  is  said  that  if  one  is  seised  of  three  acres 
under  an  incumbrance,  and  enfeoffs  A.  of  one  acre,  and  B.  of  an- 
other, and  the  third  acre  descends  to  the  heir,  who  discharges  the 
incumbrance,  he  shall  not  have  contribution,  "for  he  sits  in  the 
seat  of  his  ancestor."  ^     It  is  a  well-settled  rule  that  if  a  mortgagor 

1  Lyon  V.  Robbins,  45  Conn.  513.  equal  equity,  and  there  is  an  incumbrance 

2  Henderson  v.  Truitt,  95  Ind.  309.  on  land  belonging  to  different  parties,  they 
'^  Sanford  v.  Hill,  46  Conn.  42,  ought  each  to  contribute  towards  remov- 
*  Gibson  v.  Crehore,  5  Pick.  146;  Allen  ing  it."     See,  also,  Burget  v.  Greif,  55  Md. 

f.  Clark,  17  Pick.  47,  per  Wilde,  J.     "The    518. 

foundation   of  contribution   is   a    principle        ^  Henderson  v.  Truitt,  95  Ind.  309. 

of  justice  and  equity,  and  when  there  is        ^3  Co.  116;  Hall  v.  Morgan,  79  Mo.  47; 

60 


CONTRIBUTION  TO   REDEEM.  [§  1091. 

conveys  a  parcel  of  the  mortgaged  premises,  with  covenants  of  war- 
ranty, neither  he  nor  his  subsequent  grantee  of  the  rest  of  the  land, 
with  notice,  actual  or  constructive,  of  the  prior  deed,  can,  upon 
paying  the  mortgage,  have  contribution  from  the  prior  grantee.^ 

If  the  owner  make  simultaneous  deeds  of  undivided  moieties  of 
the  incumbered  estate,  the  grantees  stand  upon  an  equal  footing 
in  relation  to  the  incumbrance.^  But  if  one  of  these  grantees  neg- 
lect to  put  his  deed  upon  record,  and  the  other  grantee,  after  re- 
cording his  deed,  sells  his  moiety  to  one  who  has  no  notice  of  the 
conveyance  of  the  other's  moietj',  this  last  purchaser  stands  in  the 
same  position  as  if  the  other  moiety  still  remained  in  the  original 
owner,  as  in  fact  the  record  indicates ;  and  therefore  such  pur- 
chaser has  the  right  to  have  the  moiety  so  remaining  first  applied 
to  satisfy  the  incumbrance.  The  grantee  who  fails  to  put  his  deed 
on  record  enables  the  other  grantee  to  make  an  apparently  good 
title  to  the  third  person  purchasing  without  notice  of  the  incum- 
brance of  the  simultaneous  deed.^ 

Where  several  persons  own  distinct  parcels  of  the  mortgaged 
premises,  contribution  should  be  made  in  proportion  to  the  present 
value  of  the  several  parcels,  unaffected  b}'  improvements  made  by 
either  of  them.^ 

1091.  If  a  mortgagor  sells  portions  of  the  mortgaged  prem- 
ises in  different  parcels  at  different  times  by  warranty  deed, 
that  which  he  retains  is  in  equity  primarily  liable  as  against 
all  but  the  mortgagee  for  the  whole,  debt,  and  such  grantee  is  not 
required  to  contribute.^  As  between  such  purchaser  and  vendor 
it  is  well  settled  by  all  the  decisions,  both  American  and  English, 
that  the  purchaser  may  redeem  the  mortgage,  and  enforce  it  against 
that  portion  of  the  estate  still  remaining  in  the  hands  of  the  mort- 
gagor.^ A  person  having  an  agreement  for  purchase,  such  that  he 
could  enforce  a  specific  performance  of  it  in  equity,  has  the  same 

Sargeant  v.  Rowsey,  89  Mo.  617,  1  S.  W.  Lyon,  10  Johns.  32;  Stevens  v.  Cooper,  1 

Rep.  823.  Johns.  Ch.  425,  7  Am.  Dec.  499 ;  Johnson 

1  Converse  v.  Ware  Sav.  Bank,  152  Mass.  v.  White,  11  Barb.  194  ;  Bates  v.  Kuddick, 
407,  25  N.  E.  Hep.  733,  per  Allen,  J.;  2  Iowa,  423,  65  Am.  Dec.  774;  Beall  v. 
George  v.  Wood,  9  Allen,  80 ;  Beard  v.  Fitz-  Barclay,  10  B.  Mon.  261. 

gerald,  105  Mass.  134;  Clark   v.  Fontain,  ^  §1620;    Wallace   v.   Stevens,   64    Me. 

135  Mass.  464.  225  ;  Lausman  v.  Drahos,  8  Neb.  457  ;  Hen- 

2  See  Adams  v.  Smilie,  50  Vt.  1.  derson  v.  Truitt,  95  Ind.  309  ;  Sargeant  v. 
8  Chase  V.  Woodbury,  6  Cush.  143.  Rowsey,  89  Mo.  617,  1  S.  W.  Rep.  823. 

*  §§    1626,    1627 ;  Bailey   v.  Myrick,  50        ^  Chcever  i-.  Fair,  5  Cal.  337,  2  Story's 
Me.  171  ;  Tavlor  v.  Bassett,  3  N.  H.  294  ;    Eq.  §  1233;  Hall  v.  Morgan,  79  Mo.  47. 
Aiken  v.  Gale,  37  N.  H.  501  ;  Sawyer  v. 

61 


§  1092.]  REDEMPTION   OF   A   MORTGAGE. 

right  as  an  actual  purchaser  to  charge  the  burden  of  the  incum- 
brance upon  the  part  of  the  estate  retained  by  the  mortgagor.^ 

The  mortgagee  may  generally  enforce  his  security  against  the 
whole  mortgaged  premises  ;  but  if  he  become  the  owner  of  the 
equity  of  redemption  of  the  part  chargeable  with  the  whole  amount 
of  the  mortgage,  he  is  required  in  equity  to  satisfy  his  mortgage 
so  far  as  possible  out  of  that  part.^  Therefore  the  purchaser  by 
warranty  deed  of  a  portion  of  premises  covered  by  a  mortgage 
may  redeem  without  contribution  against  a  subsequent  assignee  of 
the  mortgage,  when  such  assignee  has  also  subsequently  become  the 
owner  of  the  equity  of  redemption  of  the  remaining  portion  of  the 
land,  and  that  is  sufficient  to  satisfy  the  mortgage  debt.  The  deed 
of  warranty  exempts  the  land  described  in  it  from  contribution  in 
favor  of  the  mortgagor  or  any  person  claiming  the  remaining  land 
under  him,  with  notice  of  the  prior  conveyance.'^ 

1092.  Portions  of  the  mortgaged  premises  sold  to  dififerent 
persons  are  chargeable  in  the  inverse  order  of  the  conveyances.* 
Upon  a  decree  of  foreclosure  in  such  case  the  portion,  if  any,  still 
remaining  in  the  hands  of  the  mortgagor,  is  first  subjected  to  sale  ; 
and  then  the  portion  last  conveyed  by  him,  and  so  on  in  the  inverse 
order  of  the  conveyances  made  by  him.  This  rule  is  considered  in  a 
subsequent  chapter,  and  the  authorities  are  collected.^  Under  the 
system  of  registry  in  general  use  in  this  country,  this  rule  seems 
reasonable  and  just,  as  those  acquiring  a  subsequent  interest  in  the 
estate  have  notice  of  the  condition  of  it  when  they  take  it ;  but 
the  record  is  not,  in  general,  notice  to  a  prior  purchaser.**  The 
want  of  a  general  registry  system  in  England  is  undoubtedly  the 
reason  why  this  rule  has  not  been  fully  adopted  there. 

But  notice  of  the  equities  of  prior  purchasers  may  be  given  in 
other  ways  than  by  the  registry.  A  purchaser  of  a  portion  of  a  lot 
of  land,  the  whole  of  which  is  subject  to  a  prior  mortgage,  having 
notice  of  a  prior  unrecorded  deed  of  warranty  of  an  adjoining  por- 
tion of  the  same  lot  to  a  third  person,  cannot  compel  the  latter  to 
contribute.  A  reference  in  the  mortgage  deed  to  such  owner  of  the 
adjoining  lot  amounts  to  notice  of  the  conveyance.' 

1  Root  v.  Collins,  34  Vt.  173.  9  Cow.   403;    Skeel   v.  Spraker,   8   Paige, 

2  Mclntire  v.  Parks,  59  N.  H.  258.  182;  Stuyvesant  v.  Hall,  2  Barb.  Ch.  151 ; 

3  Bradley  i'.  George,  2  Allen,  392.  Sanford  v.  Hill,  46  Conn.  42,  53,  per  Par- 
*  Lyman  v.  Lyman,  32  Vt.  79,  76  Am.  dee,  J. ;  Alexander  v.  Welch,  10  HI.  App. 

Dec.   151;   Root   v.   Collins,   34    Vt.    173;  181. 

Deavitt  v.  Judevine,  60  Vt.   695,  17  Atl.  5  Chapter  xxxvi. ;  §§1620-1632. 

Rep.  410;  Gill  v.  Lyon,  1  Johns.  Ch.  447;  ^  Beard  v.  Fitzgerald,  105  Mass.  134. 

Clowes  V.  Dickenson,    5    Johns.    Ch.  235,  ''  George  y.  Kent,  7  Allen,  16. 

02 


PLEADINGS  AND  PRACTICE  ON  BILLS  TO  REDEEM.   [§  1093. 

As  between  purchasers  in  succession  of  different  parts  of  the 
equity  of  redemption  of  lands  there  is  no  contribution,  as  the  par- 
ties do  not  stand  on  an  equal  footing  in  equity .^ 

One  holding  a  mortgage  on  two  lots  of  land,  on  one  of  which 
there  is  a  prior  mortgage,  cannot  be  compelled  to  redeem  on  a  fore- 
closure of  such  prior  mortgage,  so  as  to  give  to  a  subsequent  mort- 
gagee of  the  other  lot  the  benefit  of  the  security.^ 

VII.   Pleadings  and  Practice  on  Bills  to  redeem. 

1093.  In  general.  —  The  only  remedy  of  the  mortgagor  for  en- 
forcing his  right  to  redeem  after  a  breach  of  the  condition  is  by  a 
bill  in  equity.  If  the  mortgagee  is  in  possession,  he  has  the  right 
to  retain  the  possession  until  his  claim  upon  the  property  is  paid. 
So  long  as  the  mortgage  is  in  fact  not  discharged,  and  is  apparently 
a  subsisting  security,  the  mortgagor  cannot  obtain  possession  by 
ejectment.3  The  rule  is  the  same  although  the  mortgagor  claims 
that  the  debt  has  been  paid  in  full.  So  long  as  the  mortgage  is  ap- 
parently unsatisfied,  and  the  mortgagee  claims  any  interest  under 
it,  the  mortgagor  must  resort  to  a  suit  in  equity  to  redeem  ;  and 
although  he  may  allege  that  the  mortgage  has  been  paid,  or  was 
given  for  the  accommodation  of  the  mortgagee,  and  may  pray  that 
a  decree  be  entered  that  it  be  discharged,  yet  he  should  at  the  same 
time  pray  that  he  be  allowed  to  redeem,  and  should  offer  to  do  so 
if  anything  be  found  due  upon  the  mortgage.^  Although  the  mort- 
gagor is  already  in  the  actual  possession  of  the  mortgaged  estate, 
he  may,  after  a  breach  of  the  condition  and  payment  of  the  mort- 
gage, or  a  tender  of  payment,  maintain  a  bill  to  redeem,  for  in 
legal  contemplation  his  possession  is  considered  that  of  the  mort- 
gagee.^ 

When  the  condition  of  the  mortgage  has  been  saved  by  perform- 
ance of  it  before  any  breach  has  occurred,  and  the  mortgagee  being 
in  possession  refuses  to  surrender  it,  the  mortgagor  cannot  maintain 
a  bill  in  equity  to  recover  possession,  because  he  then  has  a  com- 
plete and  adequate  remedy  at  law.^ 

One  who   has    the  right    to   redeem  cannot   maintain  a  bill  for 

1  Gill  V.  Lyon,  1  Johns.  Ch.  447  ;  Clowes  *  Hill  v.  Payson,  3  Mass.  559  ;  Parsons 

V.  Dickenson,  5  Jolins.  Ch.  235,  240.  v.  Welles,  17  Mass.  419  ;  Newton  v.  Baker, 

-  Lewis  V.  Hinraan,  5G  Conn.  55,  13  Atl.  125  Mass.    30;  Beach  v.   Cooke,  28  N.  Y. 

Kep.  143.  508.     See,  however,    Farmers'   F.    Ins.   & 

'^  See  §  1093;  Chase  v.  Peck,  21  N.  Y.  Loan  Co.  v.  Edwards,  21   Wend.  467,    26 

581;  Pell    v.    Ulmar,    18  N.    Y.  139;  Van  Wend.  540. 

Dyne  v.  Thayre,  14  Wend.  233;  Phyfe  v.  ^  Hicks  w.  Bin<,'ham,  11  Mass.  300. 

Riley,  15  Wend.  248;  Woods  v.  Woods,  66  ^  Holman  r.  Bailey,  3  Met.  55. 
Me.  206. 

53 


§  1094.]  REDEMPTION   OF   A   MORTGAGE. 

this  purpose  after  a  suit  has  been  brought  against  him  for  the 
foreclosure  of  the  mortgage  ;  nor  can  he  enjoin  the  pi-osecution 
of  the  foreclosure  suit,  although  he  at  the  same  time  offers  to  re- 
deem.^ 

Under  a  power  of  sale  mortgage,  the  mortgagor  may  after  a 
breach  of  the  condition  redeem  at  any  time  before  a  sale  is  actually 
made  under  the  power,  without  making  a  previous  tendei",  provided 
he  offers  in  his  bill  to  pay  what  is  due.^  Where  the  mortgage  con- 
tains a  power  of  sale,  and  the  plaintiff,  in  his  prayer  for  relief,  has 
asked  for  a  sale,  the  mortgagee  may  be  authorized  to  proceed 
with  a  sale  under  the  power  and  under  the  direction  of  the  court, 
either  absolutely,  or  unless  within  a  certain  time  the  plaintiff  should 
pay  into  court  a  specified  sum.^ 

1094.  The  bill  should  conform  to  the  general  principles  of  equity 
pleading  and  practice,  as  modified  by  the  statutes  and  rules  adopted 
in  the  State  where  the  action  is  brought.  It  should  show  that  the 
debt  secured  is  due  and  payable.^  It  should  pray  for  an  accounting 
of  what  is  due  upon  the  mortgage,  and,  where  the  mortgagee  has 
been  in  receipt  of  rents  and  profits,  for  an  accounting  of  these,  and 
that  the  defendant  be  adjudged  to  deliver  up  the  possession  of  the 
estate  upon  payment  of  the  amount  found  due.  A  bill  which  also 
asks  for  the  correction  of  accounts  already  exchanged  between  the 
parties  is  not  open  to  the  objection  of  being  multifarious,  inasmuch 
as  the  accounts  relate  to  the  mortgage  debt,  and  the  correction 
asked  for  is  only  a  different  mode  of  asking  for  relief  by  a  true 
account  stated.^ 

The  plaintiff's  bill  should  contain  suflBcient  averments  to  meet 
the  case  he  wishes  to  make  out,  and  should  ask  for  all  the  remedy 
he  is  entitled  to  or  wishes  to  obtain.  If  the  mortgagee  has  been 
in  possession  and  has  received  rents  and  profits,  the  bill  should  so 
allege,  and  should  pray  to  have  an  account  of  them  taken  ;  other- 
wise no  deduction  will  be  made  upon  the  mortgage  debt  on  ac- 
count of  such  rents  and  profits.^ 

A  bill  in  equity  by  a  tenant  for  life  prayed  that  he  might  be 
permitted  to  hold  possession  of  the  mortgaged  premises  upon  pay- 
ing the  interest  as  it  might  accrue,  and  that,  upon  paying  the 
whole  amount  due  upon  the  mortgage,  the  mortgagee  might  be 
compelled  to  assign  it  to  him.     But  as  a  bill  for  these  purposes  is 

1  Kilborn  v.  Robbins,  8  Allen,  466.  *  Ganceart  i'.  Henry  (Cal.),  33  Pac.  Rep. 

2  Way  V.  Mullett,  143  Mass.  49,  8  N.  E.    92. 

Rep.  88 i.  5  Greene  v.  Harris,  10  R.  I.  382. 

3  Emerson  v.  Atkinson  (Mass.),  34  N.  E.        6  Cree  v.  Lord,  25  Vt.  498. 
Rep.  516,  per  Allen,  J. 

54 


PLEADINGS   AND   PRACTICE   ON   BILLS   TO   REDEEM.       [§  1095. 


not  allowed,  it  was  nevertheless  maintained  as  a  bill  to  redeem 
simplv;  inasmucii  as  it  contained  an  averment  that  the  plaintiff 
was  ready  and  offered  to  pay  the  full  amount  due  on  the  mort- 
gage, upon  an  assignment  of  it  to  himself,  "  or  in  such  other  way 
and  upon  such  other  terms "  as  to  the  court  should  seem  meet ; 
and  although  the  bill  did  not  pray  for  an  account,  it  alleged  that 
an  account  had  been  previously  demanded,  and  prayed  for  full 
answers  to  the  bill,  and  the  answer  alleged  the  defendant's  readi- 
ness to  account.^ 

1095.  The  bill  to  redeem  must  make  a  tender  of  the  amount 
the  plaintiff  concedes  to  be  due  on  the  mortgage  debt,  or  must 
offer  to  pay  whatever  may  be  found  to  be  due.^  If  the  bill  be 
brought  on  the  ground  of  a  tender  made  and  refused,  the  tender 
should  be  followed  up  by  a  payment  into  court  at  the  time  of 
filing  the  bill,  which  should  contain  a  proper  averment  of  a  com- 
pliance with  this  requirement.^     But  although  a  tender    made  by 


1  Lamson  v.  Drake,  105  Mass.  564. 

2  Harding  v.  Piiifrcy,  10  Jur.  N.  S.  872 ; 
Dalton  V.  Hayter,  7  Beav.  313,319  ;  Tasker 
V.  Small,  3  Myl.  &  Cr.  63 ;  Perry  v.  Carr, 
41  N.  H.  371  ;  Eastman  i'.  Thayer,  60  N. 
H.  408;  Kemp  v.  Mitchell,  36  lud.  249; 
Silsbee  v.  Smith,  60  Barb.  372,  41  How.  Pr. 
418;  Beekman  v.  Frost,  18  Johns.  544; 
1  Johns.  Ch.  288,  9  Am.  Dec.  246  ;  Miner 
V.  Beekman,  11  Abb.  Pr.  N.  S.  147,  163; 
Crews  V.  Threadgill,  35  Ala.  334;  Anson 
V.  Anson,  20  Iowa,  55,  89  Am.  Dec.  514; 
Hoopes  V.  Bailey,  28  Miss.  328 ;  Coombs  v. 
Carr,  55  Ind.  303 ;  Turner  v.  Williams,  63 
Ga.  726  ;  Loney  v.  Courtnay,  24  Neb.  580, 
39  N.  W.  Rep.  616  ;  Still  v.  Buzzell,  60  Vt. 
478 ;  Foucbe  v.  Swain,  80  Ala.  151  ;  Adams 
V.  Sayre,  70  Ala.  318;  Stocks  v.  Young^ 
67  Ala.  341 ;  Lehman  v.  Collins,  69  Ala. 
127  ;  Thomas  v.  Jones,  84  Ala.  302,  4  So. 
Rep.  270  ;  Pryor  v.  Hollinger,  88  Ala.  405, 
6  So.  Rep.  760;  Nesbit  v.  Hanway,  87  Ind. 
400;  Kopper  v.  Dyer,  59  Vt.  477,  9  Atl. 
Rep.  4,  59  Am.  Rep.  742  ;  Marsball  v.  Wil- 
liams, 21  Oreg.  268,  2S  Pac.  Rep.  137. 

A  prayer  in  a  bill  to  redeem  that  the 
plaintiff  "  ma3'  be  allowed  to  pjiy  such  sum 
as  shall  be  found  due  "  on  the  mortgage  is  a 
sufficient  offer  to  redeem.  Brown  v.  South 
Boston  Sav.  Bank,  148  Mass.  300,  19  N.  E. 
Rep.  382. 

3  Daiighdrill  v.  Sweeney,  41  Ala.  310. 
As  to  what  is  a  sufficient  averment  of  ten- 
der and  offer  to  redeem,  see  ICdgerton  v. 


McRea,  6  Miss.  183;  Lanning  v.  Smith,  1 
Parsons  Sel.  Cas.  13;  Barton  v.  May,  3 
Sandf.  Ch.  450;  Quin  v.  Brittain,  Hoff. 
Ch.  353.  Now  in  New  York  neither  a  previ- 
ous tender,  nor  an  offer  in  the  complaint  to 
pay  the  amount  which  should  be  found  due, 
is  necessary.  Casserly  v.  Witherbee,  119  N. 
Y.  522,  23  N.  E.  Rep.  1000,  Earl,  J.,  saying  : 
"  We  think  it  is  now  the  settled  law  in  this 
State,  under  our  present  system  of  plead- 
ings, that  the  allegation  of  such  a  tender 
or  offer  is  unnecessary.  It  certainly  is  not 
necessary  to  allege  that  a  tender  or  offer  to 
pay  the  amount  due  upon  the  mortgage 
was  made  before  the  commencement  of  the 
action,  and  an  offer  in  the  complaint  i.s,  at 
most,  a  technical  matter,  serving  no  sub- 
stantial purpose,  because,  in  the  judgment 
given  in  such  action,  the  court  always  pro- 
vides that  redemption  can  only  be  had  upon 
payment  of  the  amount  found  due.  The 
tender  and  offer  are  important  only  as  they 
have  bearing  upon  the  question  of  costs. 
The  mortgngor's  right  of  redemption  is  not 
dependent  upon  his  offer  or  tender  of  pay- 
ment. It  exists  independently  thereof,  and 
antecedently  thereto.  The  tender  or  offer 
is  not  needed  to  put  the  mortgagee  in  de- 
fault ;  and,  if  made,  no  relief  can  be  based 
thereon,  as  the  rights  of  the  parties  are  not 
changed  thereby,  and,  independently  thereof, 
are  always  taken  care  of  and  regulated  in 
the  judgment.  Payment  upon  redemption, 
and  as  a  condition  of  redemption,  can  be  en- 

65 


§  1096.]  REDEMPTION   OF   A   MORTGAGE. 

the  bill  should  be  kept  good,  the  omission  ordinarily  only  raises 
a  question  of  costs. ^  The  mere  payment  of  the  money  into  court, 
not  made  upon  any  tender  averred  in  the  bill  and  proved  by  evi- 
dence, does  not  amount  to  a  tender,  and  does  not  affect  the  case.^ 
A  suggestion  of  the  plaintiff's  poverty  and  inability  to  redeem,  for 
whicii  reason  he  asks  for  a  sale  of  the  premises,  does  not  excuse  the 
omission  of  an  offer  to  redeem.^ 

Either  an  averment  of  tender  or  an  offer  to  pay  is  a  necessary 
part  of  the  bill,  and  the  omission  is  ground  for  a  demurrer.*  But 
although  no  objection  be  taken  to  this  omission,  relief  will  be 
granted  only  upon  condition  of  payment  of  what  is  justly  due.^ 
If  the  mortgagee  has  been  in  possession  and  has  received  rents  and 
profits,  it  is  not  practicable  for  the  mortgagor  to  make  an  actual 
tender,  or  even  a  tender  in  writing,  of  the  exact  amount  due.^  The 
offer  in  such  case  should  be  to  pay  what  may  be  found  to  be  due. 
An  averment  of  a  tender  before  the  filing  of  the  bill  is  only  material 
as  affecting  the  question  of  costs,  and  not  the  equity  of  the  bill,  if 
this  makes  a  tender.'^  If  the  mortgagee  fraudulently  prevents  the 
plaintiff  from  making  a  tender  by  neglecting  to  render,  upon  re- 
quest, an  account  of  the  amount  due,  the  failure  of  the  plaintiff  to 
tender  or  bring  into  court  the  amount  due  is  no  ground  for  dismiss- 
ing the  bill ;  ^  but  the  decree  will  require  that,  on  payment  within  a 
fixed  time,  the  defeudant  shall  release  the  mortgage.^ 

In  like  manner  tender  of  the  debt  should  be  made  in  a  bill  to 
have  an  absolute  deed  declared  a  mortgage ;  but  when  the  fact  of 
the  loan  is  established,  the  omission  will  only  affect  the  matter  of 
costs. ^'^ 

1096.  Exceptions  to  the  rule.  —  If  the  mortgage  has  been 
paid,  or  if  the  mortgagee  has  received  rents  and  profits  from  the 
estate  sufficient  to  pay  both  the  principal  and  interest  of  the  mort- 
gage debt,  a  tender  or  offer  in  the  bill  to  pay  whatever  may  be  due 

forced  in  the  action ;  and  a  dismissal  of  the  49,  8  N.  E.  Rep.  881  ;  Brown  v.  Bank,  148 

complaint  in  such  an  action,  on  default  of  Mass.  300,  307,  19  N.  E.  Rep.  382  ;  Kopper 

payment  under  the  judgment,  as  a  condi-  v.  Dyer,  59  Vt.  477,  489,  9  Atl.   Rep.  4  ; 

tion  of  redemption,  operates  as  a  foreclos-  Goldsmith  v.  Osborne,  1  Edw.  Ch.  560. 

are."     See,  also.  Beach  v.  Cooke,  28  N.  Y.  ^  Schermerhorn  v.  Talman,  14  N.  Y.  93. 

508;  Miner  v.  Beekman,  11  Abb.  Pr.  N.  S.  «  Swegle  v.  Belle,  20  Oreg.  323,  25  Pac. 

147,  160.  Rep.  633. 

1  Lamb  v.  Jeffrey,  41  Mich.  719.  "^  Thomas  v.  Jones,  84  Ala.  302,  4  So. 

2  Hart  I'.  Goldsmith,  1  Allen,  145.  Rep.  270;    Essley  v.  Sloan,   16    111.  App. 
8  Goldsmith  v.  Osborne,  1  Edw.  560.  63. 

«  Allerton  v.  Belden,  49  N.  Y.  373 ;  Sils-        8  Dinsmore  v.  Savage,  68  Me.  191  ;  Mea- 

bee  V.   Smith,  60  Barb.  372,  41   How.  Pr.  her  v.  Howes  (Me.),  10  Atl.  Rep.  460. 
418  ;  Emerson  v.  Atkinson  (Mass.),  34  N.        »  Watkins  v.  Watkins,  57  N.  H.  462. 
E.  Rep.  516;  Way  v.  Mullett,  143  Mass.         i"  Marvin  v.  Prentice,  49  How.  Pr.  385. 

56 


PLEADINGS   AND   PRACTICE    ON   BILLS   TO   REDEEM.       [§§  1097,  1098. 

is  no  longer  necessary  ;  but  the  bill  should  in  that  case  allege  the 
payment  of  the  mortgage,  and  demand  an  accounting  by  the  mort- 
gagee.i  Upon  the  refusal  of  the  mortgagee  to  account,  and  proof 
that  the  mortgage  is  paid,  the  plaintiff  is  entitled  to  a  judgment  for 
possession  of  the  premises.^  The  suit  in  such  case  is  really  one  to 
compel  a  discharge  of  the  mortgage.^ 

1097.  The  parties.  —  As  a  general  rule,  all  persons  who  have 
an  interest  in  the  mortgage  or  in  the  equity  of  redemption,  which 
interest  is  apparent  of  record  or  known  to  the  plaintiff,  should  be 
made  parties  to  the  suit.^  The  plaintiff  must  have  some  interest 
in  the  equity  of  redemption  ;  and  if  there  are  others  also  interested 
in  it  he  must  make  them  parties  to  the  suit,  generally  as  defendants. 
He  must  also  make  defendants  all  persons  who  appear  to  be  either 
legally  or  equitably  interested  in  the  mortgage  security.^  Objec- 
tion that  persons  who  are  necessary  parties  have  not  been  brought 
before  the  court  may  be  taken  by  answer.^ 

Where  there  are  conflicting  claims  to  the  mortgage  money,  the  bill 
to  redeem  may  be  in  the  nature  of  a  bill  of  interpleader.  The  bill 
may  pray  for  an  account ;  that  the  complainant  be  permitted  to  pay 
the  amount  found  due  into  court ;  and  that  the  defendant  be  re- 
quired to  interplead,  and  to  cancel  and  surrender  the  mortgage  and 
notes.  Such  a  bill  is  not  demurrable  on  the  ground  that  it  does  not 
show  that  it  was  doubtful  which  of  the  conflicting  claims  was  right, 
the  bill  not  being  strictly  a  bill  of  interpleader.'^ 

1098.  Proper  parties  plaintiff.  —  Any  one  who  has  a  right  to 
redeem  is  a  proper  party  plaintiff.  Upon  the  death  of  one  having 
an  interest  in  fee  in  the  land,  his  heirs  or  devisees  are  the  proper 
parties.^  If  part  of  the  mortgage  has  been  paid  in  the  lifetime 
of  the  mortgagor,  and  an  account  is  to  be  taken  of  the  amount 
due  on  the  mortgage,  the  personal  representatives  of  the  mort- 
gagor should  be  joined  with  the  heir  or  devisee  as  parties  plaintiff; 
or,  in  case  of  their  refusal  to  join  in  the  bill,  they  should  be  made 

1  Catterlin  v.  Armstrong,  79  Ind.    514 ;  Nat.  Bank  (Tex.),    20  S.   W.  Rep.   1027  ; 

Dennis  v.  Tomlinson,  49  Ark.  568,  6  S.  W.  Hicklin  v.  Marco,  56  Fed.  Rep.  549. 

Rep.  II,  13 ;  Horn  v.  Indianapolis  Nat.  Bk.  &  Rovvell  v.  Jeweit,  69  Me.  293,  71  Me. 

125  Ind.  381,  25  N.  E.  Rep.  558.  408,  73  Me.  365. 

-  Quin    );.    Brittain,  Hoff.   353;  Calkins  6  Winslow  v.  Clark,  47  N.  Y.  261 ;  Dias 

V.  Isl)ell,   29  N.  Y.  147  ;  Barton  v.  May,'  3  v.  Merle,  4  Paige,  259. 

Sandf.  Ch.  450.  "  Koppinger  v.  O'Donnell,  16  R.  I.  417, 

•'  Beach  u.  Cooke,  28  N.  Y.  508,  39  Barb.  16  AtL   Rep.   714;   Bedell  v.  Hoffman,  2 

360,  86  Am.  Dec.  260.  Raige,  199. 

*  Calvert  on  Parties,   13,  91;    Evans  v.  «  Story's  Eq.  PI.  §    182;    Duncombe  v. 

Jones,  Kay,  29  ;  Posten  v.  Miller,  60  Wis.  Hansley,  3  P.  Wms.  333,  n. ;    Sutherland 

494,    19   N.  W.  Rep.  540;    Chase  v.  First  v.  Rose,  47  Barb.  144. 

57 


§  1099.]  REDEMPTION   OF   A   MORTGAGE. 

defendants.^  Otherwise,  and  if  there  are  no  outstanding  debts 
against  the  estate,  the  personal  representatives  are  not  necessary- 
parties.^  If  the  mortgage  be  of  a  term  of  years  only,  this  being  a 
personal  interest,  then  only  the  personal  representatives  of  the 
mortgagor  need  be  made  parties  plaintiff.^ 

A  wife,  in  a  bill  to  redeem  her  own  land,  need  not  join  her  hus- 
band.^ If  the  equit}^  of  redemption  has  been  conveyed,  subject  to 
the  mortgage,  to  different  persons,  or  if  others  have  in  an}'  way  be- 
come interested  in  it,  upon  redemption  by  the  owner  of  one  part  of  it 
he  should  join  all  others  having  an  interest  in  it  as  defendants, 
because  they  are  all  interested  in  the  rendering  of  the  mortgagee's 
account.^  The  interest  of  the  others  should  appear  from  the  alle- 
gations of  the  bill.^  If  the  mortgagor  has  conveyed  the  equity  of 
redemption  by  warranty  deed,  so  that  he  is  liable  to  discharge  the 
mortgage,  the  mortgagor  should  be  made  a  party,  so  that  he  may 
assist  in  taking  the  account  and  be  bound  by  the  decree."  If  in 
such  case  the  mortgagor  claims  that  the  mortgage  is  paid,  but  the 
holder  of  it  claims  that  something  is  still  due  upon  it,  the  pur- 
chaser may  properly  bring  both  of  them  before  the  court  upon  a  bill 
to  redeem.^ 

1099.  Heirs  of  mortgagor.  —  Although  upon  the  death  of  the 
mortgagor,  or  other  owner  of  the  equity  of  redemption,  his  heirs 
or  devisees  should  bring  the  suit  to  redeem ;  ^  yet  where  the  suit 
was  brought  by  the  administrator,  and  it  was  for  the  first  time 
objected  at  the  hearing  that  the  heirs  should  have  been  joined,  it 
was  held  that  as  the  heirs  were  not  prejudiced,  and  the  adminis- 
trator's interest  entitled  him  to  redeem,  the  decree  in  his  favor 
should  be  affirmed. ^'^  In  case  the  mortgage  be  of  a  leasehold  estate 
merely,  the  personal  representatives  of  the  deceased  mortgagor  are 
the  proper  parties.^^ 

In  Massachusetts  it  is  provided  by  statute  that,  upon  the  death 
of  the  person  entitled  to  redeem  without  having  made  a  tender  for 

1  5  Waifs  Prac.  285 ;  Cholmondeley  v.  App.  63 ;  Kicking  v.  Marco,  56  Fed.  Rep. 
Clinton,   2   Jac.    &   W.    135;    Rolands    v.    349. 

Latouche,  2  Bligli,  566.  '^  Lovell  v.  Farrington,  50  Me.  239. 

2  Jones  V.  Richardson,  85  Ala.  463,  5  So.        '  Story's  Eq.  PI.  §  183. 

Rep.  194.  8  Wandle  v.  Turney,  5  Duer,  661. 

3  Story's  Eq.  PI.  §  182;  Sutherland  v.  ^  Sutherland  v.  Rose,  47  Barb.  144;  El- 
Rose,  47  Barb.  144;  Wilton  ;;.  Jones,  2  liott  d.  Patton,  4  Yerg.  10;  Smith  f.  Man- 
Y.  &  C.  C.  C.  244.  ning,  9  Mass.  422 ;  Putnam  v.  Putnam,  4 

*  Hilton  V.  Lothrop,  46  Me.  297.  Pick.  139. 

s  Story's  Eq.  PI.  §  183  ;  McCabe  v.  Bel-  "  Enos  v.  Sutherland,  ll.Mich.  538;  Gu- 
lows,  1  Allen,  269;  Essley  v.  Sloan,  16  111.    thrie  v.  Sorrell,  6  Ired.  Eq.  13. 

11  Story's  Eq.  PI.  §  170. 

68 


PLEADINGS   AND    PRACTICE    ON    BILLS   TO    REDEEM.       [§§  1100. 

that  purpose,  his  executors  or  administrators,  as  well  as  his  heirs  or 
devisees,  may  make  the  tender,  and  commence  and  prosecute  the 
suit ;  or  they  may  commence  and  prosecute  a  suit  founded  upon  a 
tender  made  by  the  deceased  in  his  lifetime,  or  they  may  prosecute 
a  suit  begun  by  him.^ 

As  a  general  rule,  trustees  who  hold  the  equity  of  redemption  are 
the  proper  parties  to  hie  a  bill  to  redeem.^  Assignees  or  trustees  of 
the  equity  of  redemption  for  the  benefit  of  creditors  may  maintain 
an  action  to  redeem  without  joining  the  creditors.^  In  case  such 
assignees  or  trustees  neglect  or  refuse  to  act,  or  are  in  collusion  with 
the  mortgagee,  then  the  creditors,  or  one  for  the  benefit  of  all,  may 
bring  the  action,  and  join  the  trustees  or  assignees  as  defendants.* 

A  mortgagor  who  has  conveyed  his  equity  of  redemption  abso- 
lutely,^  or  whose  equity  has  been  sold  on  execution,^  or  assigned  in 
bankruptcy,'  need  not  be  made  a  party  to  the  suit  to  redeem. 

1100.  The  parties  defendant  to  a  bill  to  redeem  should  be  all 
persons  legally  or  beneficially  interested  under  the  mortgage.^  If 
there  be  no  outstanding  interest  under  the  mortgagee,  he  is  the  only 
necessary  party.  If  he  be  dead,  his  heirs  or  devisees,  in  whom  the 
legal  estate  is  vested,  must  be  made  parties  ;  and  his  personal  rep- 
resentative should  also  be  made  a  party,  because  he  is  entitled  to 
recover  the  money  paid.^  If  the  mortgage  was  given  to  a  surety, 
the  principal  creditor  is  a  necessary  party. ^^^ 

The  person  who  is  the  legal  holder  of  the  mortgage  at  the  time 
the  action  is  brought  is  always  a  necessary  party,  whether  he  be  a 
mortgagee  or  assignee  of  the  mortgage  ;^^  and  all  holders  of  the 
mortgage  who  have  been  in  possession  of  the  estate,  and  have  re- 
ceived rents  and  profits,  should  be  made  parties  for  the  purpose  of 
taking  the  account.  Except  in  such  case,  the  holders  of  the  mort- 
gage prior  to  the  holder  at  the  time  of  the  commencement  of  the 
suit,  who  have  no  longer  any  interest  in  the  security,  are  not  neces- 
sary parties  to  it.^^ 

1  G.  S.  I860,  ch.  140,  §§  32,  33.  33  Beav.  362  ;    Metropolitan   Bank  v.   Of- 

2  Dexter  v.  Arnold,  1  Sumn.  109.  ford,  L.  R.  10  Eq.  398. 

3  Story's  Eq.  PI.  §  184;  Wait's  Prac.  »  Stilhvell  v.  Hamm,  97  Mo.  579,  11  S. 
286;  Hanson  v.  Preston,  3  Y.  &  C.  229;  W.  Rep.  252;  Hickiug  v.  Marco,  56  Fed. 
Cash  V.  Belcher,  1  Hare,  310;  Hill  v.  Ed-  Rep.  549. 

mond.s,  5  I)e  G.  &  S.  603.  9  Story's  Eq.  PI.  §  188;    Hilton  v.  Lo- 

*  Troughton  i-.  Biiikes,  6  Ves.  573;  Hoi-  tlirop,   46   Me.   297;    Dexter  v.  Arnold,  1 

land  V.  Baker,  3  Hare,  68.  Siimn.  109. 

s  Hilton  r.  Lothrop,  46  Me.  297,      See,  i'  Hudson  v.  Kelly,  70  Ala.  393. 

however,  Clark  V.  Louf,',  4  Rand.  451.  ii  Yelverton    i-.    Shelden,   2    Sandf.    Ch. 

6  Thorpe  V.  Rick.s,  1  Dev.  &  B.  Eq.  613.  481. 

7  Kerrick  v.  Saffery,  7  Sim.  317;  Lloyd  i"-^  Whitney  v.  M'Kinney,  7  Johns.  Ch. 
I'.   Lander,   5  Madd.  282;  Jones  v.  Binns,  144. 

59 


§  1100.]  REDEMPTION   OF   A   MORTGAGE. 

All  the  mortgagees  or  assignees  of  the  mortgage,  in  whom  the 
legal  title  is  vested,  are  necessary  parties.^ 

When  redemption  is  sought  by  one  who  was  not  made  a  party 
to  a  foreclosure  suit,  and  whose  rights  were  in  consequence  not 
barred  by  it,  he  should  not  join  with  the  purchaser  as  defendant 
any  one  who  was  made  a  party  to  the  foreclosure  suit,  and  whose 
rights  are  extinguished.^ 

The  mortgagee  is  the  only  necessarj'  party  when  no  one  else  is 
interested  under  him  in  the  mortgage.  If  he  has  assigned  his 
mortgage  as  collateral  security,  or  has  assigned  a  part  interest  only 
in  the  mortgage,  he  is  still  a  necessary  pai'ty,  as  also  is  his  assignee.^ 
If  he  has  made  an  absolute  conveyance  of  the  estate  as  security, 
his  grantee  must  be  joined  with  him.*  Even  after  any  absolute 
assignment,  the  mortgagee,  though  no  longer  a  necessary  party,^ 
may  properly  be  joined  as  a  defendant,  especially  if  it  appears  that 
he  is  in  any  way  interested  in  taking  the  account.^  But  a  prior 
assignee  of  the  mortgage  who  has  not  become  liable  for  the  debt, 
and  who  has  not  become  accountable  for  rents  and  profits,  should 
not  be  made  a  party  to  the  bill,  unless  he  is  charged  with  fraud  or 
collusion,  or  a  discovery  is  sought  from  him."  If  the  mortgage  has 
been  assigned,  or  the  mortgage  interest  in  the  land  has  been  con- 
veyed upon  trusts  declared,  the  trustee  and  the  cestui  que  trust  as 
well  should  be  made  parties  to  the  action.^ 

A  surety  of  the  mortgagor  who  has  paid  the  mortgage  note  is  a 
necessary  party,  for  he  is  the  owner  of  the  mortgage  and  the  real 
party  in  interest.^ 

A  mortgagee  who  has  sold  the  mortgaged  premises  at  foreclosure 
sale  is  not  a  proper  party  to  an  action  to  redeem,  though  he  might 
be  if  he  claimed  any  right  or  interest  as  owner  or  mortgagee  in 
possession.^o  One  who  has  purchased  under  a  defective  foreclosure 
sale  is  in  effect  an  assignee  of  the  mortgage,  and  as  such  he  must 
be  made  a  party  to  the  suit.  If  he  has  granted  portions  of  the 
property  to  others,  they  thereby  become  assignees  of  a  part  of  the 

1  Woodward  v.  "Wood,  19  Ala.  213.  ^  Beals  v.  Cobb,  51  Me.  348. 

-  5  Wait's  Prac.  286.  ^  Doody  v.  Pierce,  9  Allen,  141  ;  Wing  v. 

3  Noirish  v.  Marshall,  5  Madd.  475 ;  Ho-  Davis,  7  Me.  31 ;  Whitney  v.  M'Kinney,  7 
ban  V.  Abbot,  2  P.  Wms.  643;  Winslow  v.  Johns.  Ch.  144. 

Clark,  47  N.  Y.  261  ;  Dias  v.  Merle,  4  Paige,  '?  Williams  v.  Smith,  49  Me.  564. 

259;  Davis  v.  Duffie,  8  Bosw.  617,  4  Abb.  »  Welherell    v.    Collins,   3    Madd.    255; 

Pr.  N.  S.  478.  Drew  v.  Harman,  5  Price,  319  ;  Whistler  v. 

4  Winslow  V.  Clark,  47  N.  Y.  261  ;  Dias  Webb,  Bunb.  53. 

V.  Merle,  4  Paige,  259  ;  Davis  v.  Duffie,  18        ^  Hunt  v.  Rooney,  77  Wis.  258,  45  N.  W. 

Abb.  Pr.  360;  Brown  v.  Johnson,  53  Me.    Rep.  1084. 

246.  1°  Johnson  v.  Colder,  9  N.  Y.  Supp.  739. 

60 


PLEADINGS  AND  PRACTICE  ON  BILLS  TO  REDEEM.   [§§  1101,  1102. 

mortgage  in  proportion  to  the  value  of  their  respective  purchases; 
and  upon  redemption  the  money  paid  must  be  divided  in  propor- 
tion to  the  purchase-money  paid  by  each,  and  in  the  order  of  the 
purchases. 1 

1101.  Upon  the  death  of  a  raortgagee  of  an  estate  in  fee,  ac- 
cording to  the  English  rule,  his  heir  or  devisee  must  be  made  a 
party,  because  the  legal  estate  is  in  him  ;  and  the  personal  represen- 
tative must  also  be  made  a  party,  because  he  is  generally  entitled 
to  the  money  when  it  is  paid.^  If  the  mortgage  be  of  a  leasehold 
estate,  the  personal  representative  only  of  the  mortgagee  without  the 
heir  should  be  made  defendant,  because  he  alone  is  interested  in 
the  term.^  In  those  States  where  the  common  law  doctrine  that  the 
legal  estate  is  in  the  mortgagee  has  given  place  to  the  doctrine  that 
he  has  only  a  lien  for  tiie  security  of  his  claim  without  any  legal 
estate,  the  mortgagee's  administrator  is  the  only  necessary  party  in 
such  case.* 

Where  the  heirs  at  law  of  the  mortgagee  entered  upon  the  land 
and  took  all  the  needful  steps  to  foreclose  if  they  had  been  entitled 
to  foreclose,  and  held  open  and  peaceable  possession  for  more  than 
eight  years,  when  an  administrator  was  first  appointed  upon  the 
petition  of  the  mortgagor,  who  thereupon  filed  a  bill  in  equity  to 
redeem,  it  was  held  that  he  was  entitled  to  redeem,  and  to  an  ac- 
count of  the  rents  and  profits  wrongfully  received  by  the  heirs. 
The  heirs  having  entered  under  the  mortgage,  and  having  alleged  a 
foreclosure  in  their  answer,  cannot  shield  themselves  from  account- 
ability by  saying  that  they  occupied  as  mere  strangers  and  disseis- 
ors. The  administrator  is  properly  made  a  party,  because  he  is  the 
person  to  whom  the  balance  is  to  be  paid  by  the  plaintiff.  The 
heirs  being  in  effect  executors  in  their  own  wrong  are  interested  in 
the  account,  and  therefore  are  proper  parties  to  the  bill.^ 

1102.  When  a  junior  mortgagee  seeks  to  redeem  he  must 
make  the  mortgagor  or  other  representative  of  the  realty  a  party, 
and  the  prior  mortgagees  as  well.  Though  the  object  be  merely  to 
redeem  a  prior  mortgage,  the  owner  of  the  equity  of  redemption  is 
a  necessary  party,  because  a  court  of  equity  always  seeks  to  deter- 
mine the  rights  of  all  parties  interested  in  the  estate;  and  to  do 
this  in  such  case  the  decree  should  be  tliat  the  second  mortgagee 
redeem  the  first  mortgage,  and  that  the  owner  of  the  equity  of  re- 

J  Davis  V.  Duffie,  8  Bosw.  617,  affirmed  ^  Osbourn    v:    Fallows,    1    Iluss.   &   M. 

3  Kcyes,  606,  4  Abb.  Pr.  N.  S.  478.  741. 

'^  Story's  Eq.  I'l.  §  188;  Anon.  2  Frccni.  <  Copel.ind  v.  Yoiikiim,  38  Mo.  349. 

52.  5  llaskins  v.  Hawkcs,  108  Mass.  379. 

61 


§  1103.]  REDEMPTION   OF   A   MORTGAGE. 

demption  redeem  the  second  mortgage  or  stand  foreclosed.  If  the 
owner  of  the  equity  of  redemption  be  not  made  a  party,  his  right 
to  redeem  remains  open,  and  the  first  mortgagee  may  be  exposed  to 
another  suit.^  If  the  junior  mortgagee  is  unable  to  foreclose  his 
mortgage,  for  the  reason  that  it  is  not  due  or  for  other  cause,  then 
he  cannot  redeem  a  prior  mortgage  against  the  consent  of  the 
holder  of  it;  for  in  such  case  he  cannot  bring  the  mortgagor  before 
the  court  for  the  purpose  of  completing  his  remedy  by  foreclosure, 
and  he  cannot  compel  the  mortgagee  to  assign  to  him.^  Of  course 
he  may,  at  a  foreclosure  sale  by  the  prior  mortgagee,  buy  the  estate ; 
and  it  is  said  that  the  court  may  restrain  the  prior  mortgagee  from 
making  a  sudden  sale  for  the  purpose  of  preventing  a  redemption  or 
purcliase  by  the  junior  mortgagee.^  If  a  junior  mortgagee  has  not 
been  made  a  party  to  the  foreclosure  of  a  senior  mortgage,  it  seems 
that  an  action  brought  by  the  former  to  foreclose  may  be  turned  into 
one  for  redemption.^ 

The  first  mortgagee,  after  having  filed  a  bill  of  foreclosure,  is 
not  justified  in  refusing  a  tender  of  the  principal  and  interest  due 
him,  and  in  insisting  upon  a  redemption  only  by  the  ordinary  suit 
in  court.^ 

When  a  subsequent  mortgagee  of  a  part  of  the  estate  comprised 
in  the  first  mortgage  redeems,  he  must  make  the  owners  of  all 
parts  of  that  estate  parties  to  his  suit,*"  for  the  prior  mortgage  must 
be  redeemed  entirely  or  not  at  all ;  and  if  the  owner  of  the  equity 
of  redemption  of  any  part  of  that  estate  is  not  brought  before  the 
court,  the  mortgagee  may  be  subjected  to  another  suit. 

J.103.  A  person  to  whom  the  mortgage  note  has  been  trans- 
ferred without  an  assignment  of  the  mortgage  has  an  equitable 
interest  in  it,  and  should  be  made  a  party  to  the  bill.'^ 

It  would  seem  that  in  a  bill  to  redeem  where  a  mortgagee  has 
indirectly  become  the  purchaser  at  a  sale  under  a  power  in  the  mort- 
gage which  gave  him  no  right  to  purchase,  and  the  property  sold 
for  a  less  sum  than  the  mortgage  debt,  the  bill  proceeding  on  the 
ground  that  the  purchase  from  his  grantee  was  not  a  bond  fide  pur- 
chase, the  mcn-tgagee  should  be  made   a  party  to   the  bill,  because 

1  Ston's  Eq.  PI.  §  186,  and  cases  cited;  8  Rhodes  v.  Buckland,  16  Beav.  212. 

Fell   V.  Brown,  2    Bro.   C.    C.  276;    Palk  *  Denton  v.  Nat.  Bank,  18  N.  Y.  Supp. 

V.  Clinton,  12    Ves.  48;  Farmer  v.  Curtis,  38;  Bigelow  i-.  Uavol,  16  N.  Y.  Supp.  646, 

2    Sim.  466 ;    Caddick   v.    Cook,  32  Beav,  contra. 

70,  9  Jur.  N.   S.  454,  32  L.  J.  N.  S.  Ch.  5  gmith  v.  Green,  1  Coll.  55.5. 

769.  6  Palk   I,.   Clinton,   12  Ves.  48;  Peto  v. 

'^  Ramsljottom    i'.    Wallis,    5    L.   J.    Ch.  Hammond,  29  Beav.  91  ;   Thornejcroft  v. 

N.   S.  92;  Rhodes  v.   Buckland,  16  Beav.  Crockett,  2  H.  L.  C.  239. 

212.  '>   Stone  v.  Locke,  46  Me.  445. 

62 


PLEADINGS  AND  PRACTICE  ON  BILLS  TO  REDEEM.   [§§  1104,  1105. 

he  apparently  retained  the  origuial  debt  to  which  the  mortgage  is 
incident.^ 

A  mortgagee  who  has  assigned  his  mortgage  and  note  as  colhiteral 
securit}^  for  liis  own  debt  must  be  made  a  party  to  a  bill  to  redeem, 
as  well  as  the  person  who  received  such  assign nient.^ 

1104.  Reference  to  state  account.  —  Where  the  mortgagee  has 
been  in  possession  and  an  account  of  the  rents  and  profits  is  de- 
manded, the  usual  practice  is  to  order  a  reference  to  a  master  to 
state  an  account.  The  reference  generally  embraces  not  only  an 
accounting  of  the  rents  and  profits,  but  also  of  the  amount  due  on 
the  mortgage.  Even  when  the  mortgagee  has  not  received  the  rents 
and  profits  a  reference  may  be  had,  especially  upon  a  default  to 
determine  the  amount  due  on  the  mortgage.^  The  case  may  be 
sent  to  a  master  to  take  evidence  and  state  an  account  after  it  has 
been  set  down  for  hearing  on  the  bill  and  answer.*  If  there  be  a 
conflict  of  testimony  as  to  the  amount  that  has  been  paid  upon  the 
mortgage  the  court  will  not  determine  it,  but  will  refer  the  case  to 
a  master.^ 

After  the  plaintiff  by  his  bill  has  admitted  that  a  certain  sum  is 
due  on  the  mortgage,  the  defendant  claimii)g  a  larger  sum,  the 
master  cannot  report  that  nothing  is  due.^ 

1105.  Defences.  —  The  consideration  of  the  mortgage  cannot 
be  inquired  into  unless  the  plaintiff  lays  the  foundation  for  the  in- 
quiry by  proper  averments  in  the  bill.'  On  the  other  hand,  as  a 
general  thing  it  is  wholly  immaterial  to  the  mortgagee  in  what 
manner,  for  what  object,  or  what  consideration,  the  owner  of  the 
equity  of  redemption  acquired  his  title.^  The  mortgagee  cannot 
defend  upon  the  ground  that  the  plaintiff  is  not  the  real  owner  of 
the  equity  of  redemption  ;  that  ihe  money  for  the  purchase  of  the 
property  was  furnished  by  another  person,  as,  for  instance,  the  hus- 
band, where  the  wife  was  the  apparent  owner  and  the  plaintiff  in 
the  suit  to  redeem.^ 

A  first  mortgagee  cannot  defend  a  bill  brought  by  a  subsequent 
mortgagee  upon  the  ground  that  the  mortgage  was  fraudulent  as 
against  the  mortgagor's  creditors.!*^     But  he  may  show  that  such 

1  Burns  v.  Thayer,  115  Mass.  89.  «  Bellows  v.  Stone,  18  N.  H.  4G5. 

2  Brown-w.  Johnson,  53  Me.  246.  '  Dexter  v.  Arnold,  2  Sumu.  108. 

3  Doody  V.  Pierce,  9  Allen,  141,  5  Wait's  «  Beach  v.  Cooke,  28  N.  Y.  508,  39  Baih. 
Prac.  288.  3G0,  86  Am.  Dee.  260. 

*  Doody  V.  Pierce,  9  Allen,  141,  5  Wait's  «  Green  v.  Dixon,  9  Wis.  532. 

Prac.  288.  ^'^  Livingston  v.  Ives,  35  Minn.  55,  27  N. 

5  Bartlett  v.  Fellows,  47  Me.  53  ;  Jewett  W.  Rep.  74. 
V.  Guild,  42  Me.  246. 

63 


§  1105.]  REDEMPTION  OF  A  MORTGAGE. 

mortgage  was  never  delivered,  and  is  therefore  not  a  valid  convey- 
ance between  the  parties  to  it.^ 

If  the  plaintiff  has  an  equitable  right  to  redeem,  it  is  no  defence 
that  he  has  verbally  contracted  to  sell  the  land.^  If  the  mortgagor 
in  his  bill  to  redeem  alleges  payment  of  the  mortgage  prior  to  the 
mortgagee's  entry  upon  the  land  fifteen  years  before,  the  burden  of 
proving  payment  is  upon  him,  and  if  he  does  not  sustain  it  the  bill 
is  dismissed  with  costs.^ 

After  an  express  waiver  by  the  defendant  in  his  answer  of  all 
objection  to  the  plaintiff's  redeeming  upon  payment  of  all  sums  found 
due,  he  cannot  afterwards  insist  that  the  mortgage  had  been  fore- 
closed before  the  bringing  of  the  suit.^  In  a  bill  to  redeem  by  the 
mortgagor,  he  may  set  up  the  reservation  of  usurious  interest  on  the 
mortgage  debt,  and  is  entitled  to  the  statute  penalty  for  usury  in 
reduction  of  the  sum  payable  on  the  mortgage.^  And  so  also,  in  a 
writ  of  entry  by  the  mortgagee  to  foreclose,  the  mortgagor  may  avail 
himself  of  usury  as  a  defence,  and  in  reduction  of  the  amount  for 
which  conditional  judgment  shall  be  entered;^  but  no  deduction  is 
to  be  made  for  usury  paid  under  a  verbal  agreement  not  incorpo- 
rated in  the  written  contract.'  After  a  usurious  debt  has  been  set- 
tled, by  the  mortgagee's  taking  the  property  mortgaged  to  secure  it 
in  satisfaction  of  it,  the  transaction  will  not  be  opened,  and  redemp- 
tion allowed  on  account  of  the  usury .^  No  deduction  can  be  made 
for  usurious  interest  already  paid  by  a  former  owner.^  Usury  in  the 
mortgage  debt  is  no  ground  for  redemption  by  the  mortgagor  after 
a  sale  under  a  trust  deed  for  much  less  than  the  amount  secured 
thereby,  w^hen  the  sale  was  not  resisted  on  the  ground  of  usury,  nor 
the  amount  legally  due  tendered  before  sale.^*^ 

Neither  can  the  mortgagor  be  allowed  in  the  account  treble  dam- 
ages for  waste  committed  by  the  mortgagee  pending  the  bill  to  re- 
deem, as  such  damages  can  only  be  enforced  in  the  manner  provided 
by  statute.^i 

Usury  cannot  be  shown  in  defence  to  a  bill  to  redeem  unless  the 
usury  and  the  facts  and  circumstances  constituting  it  are  set  up  in 
the  answer.^^ 

1  Powers  V.  Eussell,  13  Pick.  69.  '  Minot  v.  Sawyer,  8  Allen,  78. 

2  Pattei-son  v.  Yeaton,  47  Me.  308.  ^  Adams  v.  McKenzie,  18  Ala.  698. 

3  Furlong  r.  Randall,  46  Me.  79.  ^  Ferguson  v.  Soden,  111  Mo.  208,  19  S. 

4  Strong  V.  Blanchard,  4  Allen,  .538.  W.  Rep.  727. 

s  Hart  V.  Goldsmith,  1  Allen,  145  ;    Smith  "  Perrine  v.  Foulson,  53  Mo.  309  ;  Kirk- 

V.   Robinson,    10   Allen,    130;    Gerrish    v.  patrick  i;.  Smith,  55  Mo.  389. 

Black,  104  Mass.  400,  99    Mass.  315,  113  "  Boston    Iron    Co.   v.    King,   2    Gush. 

Mass.  486,  122  Mass.  76.  400. 

6  Ramsay  v.  Warner,  97  Mass,  8.  ^'■^  Waterman  i;.  Curtis,  26  Conn.  241. 

64 


PLEADINGS   AND   PRACTICE   ON   BILLS   TO   REDEEM.      [§  1106. 

1106.  The  decree,  —  The  form  of  the  judgment  ordinarily  is, 
that  the  plaintiff  may  redeem  upon  paying  the  amount  found  due 
on  the  mortgage  within  a  specified  time,  together  with  costs ;  and 
that  upon  his  doing  so  the  defendant  shall  discharge  the  mortgage 
and  deliver  up  the  mortgaged  premises ;  and  that  upon  default  of 
such  payment  the  complaint  be  dismissed  with  costs.^  A  decree 
which  provides  that  on  failure  to  make  paj'ment  within  the  time 
namecl  the  morto-age  shall  stand  foreclosed,  is  not  erroneous  in  that 
it  does  not  direct  a  sale  on  failure  to  redeem,  and  the  proceedings 
are  in  a  state  in  which  a  strict  foreclosure  is  not  allowed.  A  decree 
in  this  form  is  in  legal  effect  the  same  as  a  decree  that  upon  default 
the  bill  shall  be  dismissed  with  costs,  for  upon  dismissal  the  mortgage 
is  foreclosed  without  any  formal  decree.^ 

A  mortgagor  who  brings  an  ordinary  bill  to  redeem,  in  which  he 
asks  for  no  particular  relief,  is  only  entitled  to  a  decree  in  usual 
form.  The  decree  should  require  redemption  within  a  time  stated, 
and  not  "  at  any  time  before  a  valid  and  effectual  foreclosure  of  the 
mortgage  by  a  new  execution  of  the  power  of  sale  therein."^ 

A  decree  which  declares  that  upon  redemption  the  mortgagor 
shall  hold  the  premises  discharged  of  the  mortgage,  and  free  from 
all  right,  title,  and  estate  under  the  mortgage,  gives  no  I'ights  as 
against  tenants  of  the  mortgagee  be3'ond  what  he  would  otherwise 
have  upon  redemption.^ 

When  nothing  is  found  due  to  the  mortgagee,  the  mortgagor  is 

1  5  Wail's  Prac.  288;  Pitman  v.  Thorn-  ^  Dennett  u.  Codman,  158  Mass.  371, 33  N. 
ton,  66  Me.  469  ;  Wallier  v.  Harris,  7  Paige,  E.  Rep.  574.  Knowlton,  J.,  said  :  "  It  may 
1  ;  Kolle  V.  Clausheide,  99  Ind.  97  ;  Chi-  well  be  that  if  a  sale  has  been  made  fraudu- 
cago  Mill  Co.  V.  Scully,  141  111.  408,  30  N.  lently,  or  in  any  such  way  as  to  be  invalid 
E.  Rep.  1062  ;  Bremer  v.  Dock  Co.  127  111.  against  the  mortgagor,  he  may  bring  a  bill 
464, 18  N.  E.  Rep.  321 ;  Dennetts.  Codmau,  asking  to  have  it  set  aside,  and  to  be  per- 
158  Mass.  371,  33  N.  E.  Rep.  574;  Briggsr.  mitted  to  redeem  at  any  time  before  the 
Briggs,  135  Mass.  306  ;  Dyer  v.  Shurtleff,  foreclosure  of  the  mortgage  by  a  valid  sale 
112  Mass.  16.5,  166;  Stevens  v.  Miner,  110  or  by  the  expiration  of  three  years,  and  con- 
Mass.  57;  Tetrault  v.  Labbe,  155  Mass.  tinned  possession  by  the  mortgagee  taken 
497,  30  N.  E.  Rep.  173  ;  Robertson  v.  Nor-  and  held  on  account  of  the  breach  of  the 
ris,  1  Giff.  421 ;  Jenkins  v.  Jones,  2  Giff.  99  ;  condition  of  the  mortgage.  There  might  be 
Decker  v.  Patten,  120  111.464,  11  N.  E.  Rep.  equitable  grounds  for  permitting  the  mort- 
897,  quoting  text ;  McKenna  v.  Kirkwood,  gagor  to  stand  in  the  same  position  as 
50  Mich.  544, 15  N.  W.  Rep.  898  ;  Martin  i'.  if  a  fraudulent  or  unlawful  sale  had  not 
Ratcliff,  101  Mo.  254,  13  S.  W.  Rep.  1051,  been  made,  and  for  giving  him  a  long  time 
quoting  text.  in  which  to  redeem;  but  what  order  should 

2  Martin  v.  Ratcliff,  101  Mo.  254,  13  S.  be  made  on  a  petition  asking  peculiar  relief 
W.  Rep.  1051.  See,  also,  O'Fallon  v.  Clop-  in  a  ca.se  of  that  kind,  it  is  unnecessary  now 
ton,  89  Mo.  284,  1  S.  W.  Rep.  302  ;  Davis  to  determine." 

V.  Holmes,  15  Mo.  349 ;  Bollinger  v.  Chou-        *  Holt  v.  Rees,  46  111.  181. 
teau,  20  Mo.  89. 

VOL.    II.  5  65 


.§  1107.]  REDEMPTION   OF   A   MORTGAGE. 

not  onl}^  entitled  to  a  discharge  of  the  mortgage  but  to  a  judgment 
for  possession,  and  to  a  writ  of  possession  to  recover  it.^ 

1107.  The  decree  should  fix  a  time  within  which  the  redemp- 
tion is  to  take  place.  This  time  rests  in  the  sound  discretion  of 
tlie  court  in  view  of  all  the  circumstances.^  The  usual  time  was 
formerly  six  months ;  ^  if  the  plaintiff  neglected  to  redeem  within 
the  specified  time  his  right  was  barred  forever ;  *  but  the  time  is  a 
matter  within  the  discretion  of  the  court,  and  a  year  is  allowed  in 
some  States.^  Additional  time  might  be  allowed  to  enable  the 
plaintiffs  to  obtain  contribution  from  one  of  the  defendants  who  is 
also  interested  in  the  equity  of  redemption;*^  or  it  may  be  allowed 
when  the  failure  to  pay  was  occasioned  by  fraud,  accident,  or  mis- 
take,' or  by  the  acts  of  the  mortgagee  without  the  mortgagor's 
fault  ;^  but  if  the  negligence  of  the  complainant  himself  has  con- 
tributed to  such  failure,  it  is  proper  to  refuse  to  extend  tl)e  time.^ 
The  time  of  redemption  was  extended  for  thirty  days  where  the 
decree  omitted  to  declare  what  should  be  the  effect  of  an  omission 
to  redeem,  although  the  effect  of  such  decree  was,  the  court  de- 
clared, that,  if  the  plaintiff  should  fail  to  pay  the  money  within 
the  time  specified,  his  right  to  redeem  would  be  barred.^o  But  the 
same  reasons  do  not  exist  for  such  extension  of  the  time  that  exist 
in  case  of  a  strict  foreclosure,  because  in  redemption  the  plaintiff 
should  be  prepared  to  pay,  and  he  in  fact  proffers  payment  by 
his  bill.ii 

Instead  of  a  decree  requiring  the  mortgagor  to  pay  the  debt  by 
a  given  day,  or  that  his  bill  shall  stand  dismissed,  the  practice  has 
sometimes  prevailed  in  some  States  to  order  a  sale  of  the  property 
and  the  payment  of  the  mortgage  out  of  the  proceeds,  and  the  sur- 

1  Churchill  v.  Beale,  MSS.  2  Benn.  &  *  Sherwood  v.  Hooker,  1  Barb.  Ch.  650; 
Heard  Dig.   (Mass.)    306.     See  Gerrish  j;.    Kolle  y.  Clausheide,  99  Ind.  97. 

Black,  122  Mass.  76.  ^  Murphy  v.  N.  E.  Sav.  Bank,  63  N.  H. 

2  Decker  v.  Patton,  120  111.  464,  11  N.  E.    362. 

Rep.  897,  20  111.  App.  210;  Bremer  v.  Dock  ^  Brinckerhoff  v.  Lansing,  4  Johns.  Ch. 

Co.  127  III.  464,  18  N.  E.  Rep.  321.  140. 

3  §  1563;  Novosielski  v.  Wakefield,  17  ^  Kopper  v.  Dyer,  59  Vt.  477,  9  Atl.  Rep. 
Ves.  417.     New  York:  Waller  v.  Harris,  7  4,  59  Am.  Rep.  742. 

Paige,  167;  Perine  v.  Dunn,  4  Johns.  Ch.  ^  Pierson  v.   Clayes,  15  Vt.  93;  Daggett 

140;  Brinckerhoff  v.  Lansing,  4  Johns.  Ch.  v.  Mendou,  64  Vt.  323,  24  Atl.  Rep.  242. 

65,  8  Am.  Dec.  538;  Dunham  v.  Jackson,  ^  Segrest  v.  Segrest,  38  Ala.  674;  Cilley 

6  Wend.  22.     See  Hollingsworth  v.  Koon,  v.  Huse,  40  N.  H.  358 ;  Francis  v.  Parks, 

117  111.  511,  where  a  limitation  of  the  time  55  Vt.  80. 

to   three   months  was    adjudged   improper  i'^  Sherwood  i'.  Hooker,  1  Barb.  Ch.  650. 

and  oppressive.  "  Jenkins   v.   Eldredge,  1  Wooil.   &  M- 

61  ;  Perine  v.  Dunn,  4  Johns.  Ch.  140. 

66 


PLEADINGS   AND   PRACTICE   ON    BILLS   TO   REDEEM.       [§§  1108,  1108  a. 

plus  to  the  mortgagor.     The  defendant  may  also  in  his  answer  ask 
a  foreclosure.^ 

1108.  If  a  mortgagor  who  has  brought  a  bill  to  redeem  fails 
to  pay  the  amount  found  due  within  the  time  ordered,  and  the 
mortgagee  obtains  judgment  for  costs,  the  mortgage  is  foreclosed 
without  any  formal  decree  dismissing  the  bill.^  The  judgment  for 
costs  takes  the  place  of  a  decree  of  dismissal,  and  works  a  foreclosure. 
But  if  there  is  no  order  of  any  kind  after  default,  the  right  to  re- 
deem is  not  barred.^  According  to  the  English  practice,  which  is 
adopted  in  some  of  the  States,  proof  must  be  made  that  the  money 
has  not  been  paid,  and  a  final  decree  of  dismissal  must  be  first 
entered,  upon  the  ground  that  until  such  fbial  order  is  entered  the 
records  of  the  court  are  not  complete,  and  the  plaintiff  may  come 
in  with  an  application  to  have  the  time  within  which  he  may  redeem 
extended.*  The  decree  of  dismissal  with  costs  is  equivalent  to  a  de- 
cree of  foreclosure,^  and  has  this  effect  although  it  does  not  expi-essly 
declare  it.^  Such  a  decree  is  made  as  a  matter  of  course  upon  mo- 
tion supported  by  affidavit  that  the  time  within  which  the  plaintiff 
was  allowed  to  redeem  has  expired,  and  the  money  found  due  has 
not  been  paid.''  It  is  irregular  to  decree  a  sale  of  the  lands  when 
the  bill  to  redeem  contains  no  prayer  for  a  sale  and  the  mortgagee 
has  not  filed  a  cross-bill.^ 

1108  a.  The  mortgagee  may  by  his  agreement  or  acts  open 
or  suspend  a  decree  of  redemption.  Thus  if,  after  the  entry  of  a 
decree  fixing  the  amount  and  time  of  payment,  the  mortgagee  re- 
ceives rents  from  the  mortgaged  land,  no  further  proceedings  can 
be  had  until  there  has  been  a  new  accounting,  and  a  new^  order 
passed  fixing  the  amount  and  time  of  payment.^ 

1  Virginia:  Turner  i-.  Turner,  3  Muuf.  Hoff.  Ch.  353;  Casserly  v.  Witherbee,  119 
66.  North  Carolina:  Ingram  v.  Smith,  6  N.  Y.  522,  23  N.  E.  Rep.  1000 ;  Shannon  a'. 
Led.  Eq.  97.  New  York:  Darvin  v.  Hat-  Speers,  2  A.  K.  Marsh.  311;  Gallagher  v. 
field,  4  Sandf.  408  ;  Sutherland  v.  Rose,  47  Giddings,  33  Neb.  222,  49  N.  W.  Rep.  1126. 
Barb.  144.  Michigan:  Meig.s  v.  McFarlan,  «  Bolles  v.  Duff,  43  N.  Y.  469;  Beach  v. 
72  Mich.  194,  40  N.  W.  Rep.  246.  Cooke,  28  N.  Y.  508,  535,  86  Am.  Dec.  260 ; 

2  Stevens  i^.  Miner,  110  Mass.  57;  Den-  Ferine  v.  Dunn,  4  Johns.  Ch.  140;  Sher- 
ncttf.Codman,  158  Mass. 371,33  N.  E.  Rep.  wood  y.  Hooker,  1  Barb.  Ch.  650;  Adams 
574;  Flanders  v.  Hall,  159  Mass.  95,  34  N.  v.  Cameron,  40  Mich.  506. 

E.  Rep.  178.  V  M'Donougli  v.  Sbewbridge,  2  Ball  &  B. 

3  Tetraultv.  Labbe,  155  Mas.s.  497,  30  N.  555,  564;  Stuart  v.  Worrall,  1  Bro.  C.  C. 
E.  Rep.  173.  581. 

*  Seton,  Decrees  (Amer.  ed  ),  516  ;  Sher-  «  Lindsay  v.  Matthews,  17  Fla.  575. 

iffy.  Sparks,  West.  Ch.  130;  Bolles  v.  Duff,  »  Frees  v.  Coke,  L.  R.  6  Ch.  App.  645  ; 

43  N.  Y.  469  ;  Smith  v.  Bailey,  10  Vt.  163.  Allen  v.  Edwards,  42  L.  J.  Ch.  455  ;  Ellis 

""  Winchester  v.  Paine,  11  Ves.  194,  199;  v.  Griffiths,  7  Beav.  83;  Alden  v.  Foster,  5 

Cholmley  v.  Oxford,  2  Atk.  267  ;   Ferine  v.  Beav.  592  ;  Garliek  v.  .Jaek>on,  4  Heav.  154; 

Dunn,  4  Johns.  Ch.  140;   Quin  r.  Briuain,  Wool    v.    Surr,    19    Beav.   551;    Ferine    v. 

67 


§§  1109-1111.]  REDEMPTION   OF   A   MORTGAGE. 

1109.  Abandonment  of  suit.  —  The  parties  to  a  suit  to  redeem 
may  by  their  agreement  or  acts  treat  the  suit  as  abandoned.  But 
if  a  decree  has  been  made  in  the  suit  fixing  the  time  and  amount 
of  payment,  and  enjoining  the  mortgagee  from  foreclosing  until  a 
further  order,  the  mortgagee  cannot,  without  first  procuring  a  dis- 
missal of  that  suit,  immediately  begin  proceedings  to  foreclose  his 
mortgage  under  a  power  of  sale ;  and  a  sale  made  to  himself  as 
authorized  by  the  power  will  not  bar  the  mortgagor's  right  of  re- 
demption.^  A  mortgagor  of  land  subject  to  two  mortgages  filed  a 
bill  to  redeem  it  from  the  first  just  before  the  expiration  of  tlie 
three  years  after  open  and  peaceable  entry.  While  the  suit  was 
pending,  and  after  the  three  years  expired,  the  first  mortgagee  exe- 
cuted a  quitclaim  deed  of  the  land  to  the  second  mortgagee.  It 
was  held  that,  upon  the  subsequent  abandonment  of  the  suit  by  the 
mortgagor,  the  second  mortgagee  succeeded  to  all  the  rights  of  the 
first  mortgagee,  and  held  the  estate  by  an  indefeasible  title  under  a 
completed  foreclosure.^  The  plaintiff  in  a  bill  to  redeem  may  be 
debarred  from  his  right  to  redeem  by  improper  delay  in  prosecuting 
his  suit  after  it  is  commenced.'^ 

1110.  Redemption  does  not  necessarily  extinguish  the  mort- 
gage title.  If  the  plaintiff  owns  every  other  interest  in  the  land 
there  is  a  merger  of  this  title  ;  but  if  there  are  intermediate  incum- 
brances, he  becomes  substituted  to  the  rights  and  interests  of  the 
original  mortgagee  ;  and  such  incumbrancer  must  redeem  of  him  if 
he  wishes  to  protect  his  own  interest.^ 

1111.  The  general  rule  in  regard  to  costs  upon  a  suit  to  re- 
deem is  that  the  plaintiff,  instead  of  recovering  costs  himself,  pays 
them  to  the  defendant,  although  he  is  successful  in  the  suit.^  This 
is  upon  the  principle  that  at  law  the  mortgage  is  forfeited,  and 
that  the  legal  estate  being  in  the  mortgagee  he  is  at  liberty  to 
deal  with  the  propert}^  as  his  own.^  The  mortgagor,  on  the  other 
hand,  is  in  default ;  and  this  relief  in  equity  is  in  the  nature  of  a 
favor  conferred,  and  not  a  right  contracted  for.  An  exception  is 
made  to  this  rule  where  the  defendant    sets  up    an    unwarranted 

Dunn,  4  Johns.  Ch.  140;  Beach  y.  Cooke,  ""  Harper  v.   Ely,    70   111.    581;    Slee   v. 

28  N.  Y.  .508;  Bolles  v.  Duff,  43  N.  Y.  469;  Manhattan  Co.  1  Paige,  48;  Brockway  i;. 

Smith  V.  Bailey,  10  Vt.  163;  Tetrault  v.  Wells,  1  Paige,  617;   Benedict  v.  Oilman, 

Labbe,  155  Mass.  497,  30  N.  E.  Eep.  173.  4  Paige,  58;    Vroom  v.  Ditmas,  4   Paige, 

1  Tetrault  v.  Labbe,  155  Mass.  497,  30  526;  Bean  v.  Brackett,  35  N.  H.  88;  Phil- 

N.  E.  Rep.  173.  lips  v.  Hulsizer,  20  N.  J.  Eq.  308;  Blum  v. 

■^  Thompson  v.  Kenyon,  100  Mass.  108.  Mitchell,  59  Ala.  535;  Turner  i'.  Johnson, 

3  Bancroft    v.  Sawin,  143  Mass.  144,  9  95  Mo.  431,  6  Am.  St.  Rep.  62,  7   S.  W. 

N.  E.  Rep.  539.  Rep.  570. 

*  Brainard  v.  Cooper,  10  N.  Y.  356.  ^  Wetherell  i-.  Collins,  3  Madd.  255. 
68 


PLEADINGS   AND   PRACTICE   ON   BILLS    TO    REDEEM.       [§  1112, 

defence,  or  one  which  wholly  fails,  and  thereby  makes  delay  and 
expense  in  prosecuting  the  redemption  ;  in  such  case  the  defendant 
may,  in  the  disci-etion  of  the  court,  be  compelled  to  pay  costs  to 
the  plaintiff.^  If  the  amount  due  upon  the  mortgage  is  in  dis- 
pute, although  the  defendant  proves  to  be  in  error,  yet,  if  he  had  a 
reasonable  ground  for  his  view  of  the  case,  the  costs  will  still  be 
awarded  against  the  plaintiff.^  The  court  may  also  require  each 
part}^  to  pay  his  own  costs.'^ 

In  suits  to  redeem,  costs  are  sometimes  not  allowed  to  either 
party  as  against  the  other.'^  This  has  been  the  rule  adopted  by 
some  courts  where  the  plaintiff  before  bringing  his  suit  tendered 
the  amount  due,  and  any  costs  which  had  been  incurred.^ 

If  a  tender  be  made  by  the  mortgage  debtor  after  the  bring- 
ing of  a  suit  to  foreclose,  as  the  amount  of  costs  in  an  equitable 
suit  for  the  purpose  is  discretionary  with  the  court,  he  can  onl}^ 
make  tender  of  such  costs  as  may  seem  to  him  reasonable,  and 
upon  refusal  apply  to  the  court  to  have  the  costs  taxed. ^ 

Where,  in  an  action  to  redeem,  the  decree  in  complainant's  favor 
requires  defendant  to  account,  the  costs  of  the  accounting  should  be 
chai'ged  to  defendant." 

1112.  Under  a  statute  providing  that  the  plaintiff  bringing  a 
suit  to  redeem  without  a  previous  tender  shall  pay  the  costs 
of  suit,  unless  the  defendant,  when  requested,  has  neglected  or 
refused  to  render  a  just  and  true  account,  the  plaintiff  so  bringing 
suit  is  liable  for  costs,  although  the  defendant  be  liable  under  the 
usury  law  to  forfeit  threefold  the  unlawful  intei*est.^ 

In  Massachusetts  it  is  provided  by  statute  that  if  the  suit  is 
brought  without  a  previous  tender,  and  it  appears  that  a.nything 
is  due  upon  the  mortgage,  the  plaintiff  shall  pay  the  costs  of  suit, 
unless  the  defendant  has  unreasonably  refused  or  neglected,  when 
requested,  to  render  a  true  account  of  the  money  due  on  the  mort- 
gage, and  of  the  rents  and  profits,  or  has  in  any  way  prevented 
the  plaintiff  from  performing  or  tendering  performance  of  the  con- 

1  Davis  f.  Duffie,  18  Abb.  Pr.  3G0;  Bar-  "  Pratt  v.  Ramstlell,  16  How,  Pr.  59; 
ton  j;.  May,  3  Sandf.  Ch.  450 ;  Still  y.  Buz-  Bartow  v.  Cleveland,  16  How.  Pr.  364. 
zell,  60  Vt.  478,  12  Atl.  Eep.  209  ;  Turner  The  statute  providing  for  tender  to  a  plain- 
V.  Johnson,  95  Mo.  431,  7  S.  W.  Hep.  570.  tiff  to  stop  costs  is  confined  to  actions  at 

2  Sessions  v.  Richmond,  1  R.  I.  298 ;  law.  New  York  F.  &  M.  Ins.  Co.  v.  Bur- 
Wells  V.  Van  Dyke,  109  Pa.  St.  3.30,  quot-  rell,  9  How.  Pr.  398. 

iiig  text.  "  Crawford  v.  Osmun,  90   Mich.   77,  51 

3  Hollingsworth  v.  Koon,  117  III.  51 1.  N.  W,  Rep.  356. 

*  Green  v.  We.scott,  13  Wis.  600.  »  Gerrish  v.   Black,    113    Mass.   486,  99 

^  King   V.   Duntz,    11    Barb.    191;    Van    Mass.  315,  104  Mass.  400,   122    Mass.    76, 

Buren  v.  Olmstead,  5  Paige,  9.  And  see  McGuire  v.  Van  Pelt,  55  Ala.  344. 

69 


§  1113.]  EEDEMPTION    OF   A   MORTGAGE. 

dition  before  bringing  suit.  In  all  other  cases  the  court  may  award 
costs  to  either  part}^  as  equity  may  require.^  Under  these  provi- 
sions the  mortgagee  may  be  ordered  to  pay  the  plaintiff's  costs 
when,  upon  request  for  an  account,  he  has  failed  to  render  any 
account,  or  has  rendered  an  untrue  one,  so  that  the  mortgagor 
is  compelled  to  resort  to  a  suit.^  But  in  a  case  where  there  was 
no  tender,  and  the  account  rendered  by  the  mortgagee  was  incor- 
rect only  because  it  contained  items  of  money  expended  for  con- 
venience and  ornament  of  the  estate,  costs  were  allowed  to  neither 
party  .^ 

There  is  a  similar  statute  in  Maine."^  As  the  law  now  stands,  no 
suit  can  be  maintained  without  a  tender,  unless  the  defendant  is  in 
default  in  preventing  a  tender.  If  the  bill  is  sustained,  the  plaintiff 
is  in  all  cases  entitled  to  costs  as  a  strict  legal  right.^  What  consti- 
tutes a  sufficient  demand  and  refusal  to  account  under  this  statute 
depends  upon  the  particular  circumstances;  thus  when  the  mort- 
gagor made  a  demand  on  the  mortgagee  at  a  store  two  miles  distant 
from  liis  residence  to  render  an  account,  to  which  the  reply  was 
that  about  the  sum  of  eleven  hundred  dollars  was  due,  and  the  mort- 
gagee, when  afterwards  requested  to  render  a  more  particular  ac- 
count, replied  that  he  would  not  until  obliged,  no  objection  being 
made  to  the  place  of  demand,  it  was  considered  sufficient  to  sustain 
a  bill  to  redeem  brought  four  years  afterwards.^ 

1113.  In  exceptional  cases  the  mortgagee  is  liable  for  costs 
upon  redemption.  A  mortgagee  who  has  refused  a  tender  of  a  sum 
sufficient  to  cover  principal,  interest,  and  costs  will  be  compelled 
to  pay  the  costs  of  a  suit  to  redeem." 

A  mortgagee  who  has  refused  to  inform  a  purchaser  of  the  equity 
of  redemption,  of  whose  rights  he  has  notice,  of  the  amount  due 
him,  and  without  demand  of  payment  takes  possession  in  the  own- 
er's absence,  is  not  entitled  to  costs.^ 

The  costs  of  a  suit  to  foreclose  a  prior  mortgage  are  not  charge- 
able to  a  junior  mortgagee  who  was  not  a  party  to  it  when  he 
redeems.^ 

1  G.  S.  ch.  140,  §  21.  ^  Dinsmore  v.  Savage,  68  Me.  191. 

2  Montague   v.  Phillips,  15    Gray,  566;  »  Wallace  r.  Stevens,  66  Me.  190. 
Peaseu.  Benson,  28  Me.  336;  Roby  r.  Skin-  "  Grugeon  v.  Gerrard,  4   Y.  &  C.  128; 
ner,  34  Me.  270;  Sprague  v.  Graham,  38  Harmer  v.  Priestly,  16  Beav.  569. 

Me.  328;  Dinsmore  v.  Savage,  68  Me.  191.  ^  Meigs  v.  M'Farhm,  72  Mich.  194,   40 

3  Woodward  v.  Phillips,  14  Gray,  132.  N.  W.  Rep.  246. 

4  R.  S.  1871,  ch.  90,  §  13  ;  Dinsmore  v.  »  Gage  v.  Brewster,  31  N.  Y.  218,  revers- 
Savage,  68  Me.  191  ;  Hall  v.  Gardner,  71  ing  30  Barb.  387  ;  Gaskell  v.  Viquesney, 
Me.  233.  122  Ind.  244,  23  N.  E.  Rep.  791. 

70 


PLEADINGS   AND   PRACTICE    ON   BILLS    TO   REDEEM.       [§  1113. 

Where  both  parties  are  at  fault,  the  mortgagor  for  not  offering  to 
pay  the  balance  due  before  filing  his  bill,  and  the  mortgagee  for 
claiming  that  there  was  no  right  of  redemption,  the  deed  being  ab 
solute  on  its  face,  the  costs  may  be  divided.^ 

1  Perdue  v.  Brooks,  85  Ala.  459,  5  So.  Rep.  126. 

71 


CHAPTER   XXIIL 


MORTGAGEE  S   ACCOUNT. 


I.  Liability  to  account,  1114-1120. 
II.  What    the    mortgagee    is   chargeable 
with,  1121-1125. 
III.  Allowances  for  repairs   and  improve- 
ments, 1126-1131. 


IV.  Allowances   for    compensation,    1132, 
1133. 
V.  Allowances  for  disbursements,  1134- 
1138. 
VI.  Annual  rests,  1139-1143. 


I.  Liability  to  Account. 
1114.  In  general.  —  A  mortgagee  in  possession,  whether  in  per- 
son, by  trustee,  receiver,  or  by  a  tenant,  is  in  equity  accountable 
for  the  rents  and  profits  of  the  estate,  and  is  bound  to  apply  them 
in  reduction  of  the  mortgage  debt.i  After  paying  the  interest  of 
the  debt,  any  balance  of  receipts  is  applicable  to  reduce  the  princi- 
pal.2  The  mortgagee  is  not  allowed  to  make  a  profit  out  of  his  pos- 
session of  the  estate.  Therefore,  upon  a  redemption  of  the  mort- 
gaged premises  by  any  one  interested  in  them,  he  is  obliged  to  state 
an  account  of  his  receipts  from  the  mortgaged  property,  and  he  is 
entitled  to  allowances  for  all  proper  disbursements  made  by  him  in 
respect  of  the  premises.  The  principles  upon  which  this  account 
should  be  stated  it  is  the  purpose  of  this  chapter  to  set  forth.  The 
subject  is  of  much  less  general  importance  than  it  formerly  was,  for 
the  reason  that  it  is  comparatively  seldom  now  that  the  mortgagee 
takes  possession.  In  many  States,  as  already  noticed,  the  mort- 
gagee is  prohibited  by  statute  from  entering  or  in  any  way  acquir- 
ing  possession  before  a  foreclosure  and  sale.  In  other  States,  power 
of  sale  mortgages  and  trust  deeds  are  in  common  use,  and  upon  a 
default  a  speedy  sale  of  the  property  may  be  had,  so  that  there  is 


1  Harrison  v.  Wyse,  24  Conn.  1,  63  Am. 
Dec.  151 ;  Kellogg  v.  Rockwell,  19  Conn. 
446;  Reitenbaugh  v.  Ludwick,  31  Pa.  St. 
131 ;  Breckenridge  v.  Brooks,  2  A.  K. 
Marsh.  335,  12  Am.  Dec.  401;  Tharp  v. 
Feltz,  6  B.  Mon.  6 ;  Anthony  v.  Rogers,  20 
Mo.  281 ;  Chapman  v.  Porter,  69  N.  Y.  276  ; 
Dawson  v.  Drake,  30  N.  J.  Eq.  601  ;  Lock- 
ard  V.  Hendrickson  (N.  J.  Eq.),  25  Atl.  Rep. 
512;  Shouler  v.  Bonander,  80  Mich.  531, 
45  N.  W.  Rep.  487  ;  Rooney  v.  Crary,  11  111. 

72 


App.  213;  Wood  v.  Wlielen,  93  111.  153; 
Davis  L'.  Lassitter,  20  Ala.  561  ;  Toomer  v. 
Randolph,  60  Ala.  356  ;  Downs  v.  Hopkins, 
65  Ala.  508;  Greer  v.  Turner,  36  Ark.  17  ; 
Swegle  V.  Belle,  20  Greg.  323,  25  Pac.  Rep. 
633 ;  Byers  v.  Byers,  65  Mich.  598, 32  N. 
W.  Rep.  831  ;  Hannah  v.  Davis,  112  Mo. 
599,  20  S.  W.  Rep.  686. 

2  McConnel  v.  Holobush,  11  111.  61  ;  Wal- 
ton V.  Withington,  9  Mo.  549. 


LIABILITY   TO   ACCOUNT.  [§  1115. 

not  generally  any  occasion  for  the  mortgagee  to  take  possession  of 
the  mortgaged  estate. 

This  liability  of  the  mortgagee  to  account  arises  only  when  his 
entry  and  possession  are  in  recognition  of  the  mortgage.  If  he  en- 
ters as  a  trespasser  or  as  the  tenant  of  the  mortgagor,  whatever  his 
liabilities  may  be,  they  are  not  to  be  enforced  in  equity  under  a  bill 
for  an  account  and  for  redemption.^  A  mortgagee  is  not  liable  to 
account  when  he  has  held  possession  by  some  other  title  than  that 
of  mortgagee.  Thus  where  the  cestids  que  trustent  of  a  mortgage 
have  been  in  possession,  but  there  is  no  evidence  that  they  had  pos- 
session other  than  as  widow  and  heirs  of  the  mortgagor,  the  trustee 
to  whom  the  mortgage  was  given  cannot  be  called  on  to  apply  the 
rents  and  profits  of  the  land  in  satisfaction  of  the  interest  on  the 
mortgage,  as  it  cannot  be  said  that  they  had  possession  in  his  be- 
half.2 

1115.  This  is  a  matter  of  equitable  jurisdiction.  It  is  ap- 
parent enough  that,  where  the  English  doctrine  prevails  that  the 
mortgage  conveys  a  legal  title,  the  right  of  the  mortgagor  to  an 
account  of  the  rents  and  profits  of  the  land  received  by  the  mort- 
gagee is  purely  and  exclusively  of  equitable  cognizance.  At  law 
he  cannot  be  made  to  account.  He  is  the  legal  owner  of  the 
estate,  and  takes  the  rents  and  profits  in  that  character.  The 
mortgagor  has  a  right  of  redemption  only  in  equity,  and  the  right 
to  an  account  is  only  incident  to  this.^  But  regarding  the  mort- 
gagee's interest  as  a  lien  only  does  not  obviate  the  necessity  of 
resorting  to  equity  for  an  accounting.*  The  mortgagee  in  posses- 
sion takes  the  rents  and  profits  in  the  quasi  character  of  trustee 
or  bailiff  of  the  mortgagor.  In  equity  he  must  apply  them  as  an 
equitable  set-off  to  the  amount  due  on  the  mortgage.  Such  a  re- 
ceipt is  not  a  legal  satisfaction  of  the  mortgage.  There  is  no  pay- 
ment and  satisfaction  of  the  mortgage  until  the  rents  and  profits 
are  applied  to  the  payment  of  the  debt.  The  law  does  not  apply 
them  as  they  are  received.^ 

1  Daniel  u.  Coker,  70  Ala.  260.  So  Am.  Rep.  519 ;  Farris  y.  Houstou,  78  Ala. 
where  the  mortgagee's  possession  was  only    250,  quoting  text. 

as    husband   of    one    of    the    mortgagors.  5  jiubbell  i;.  Moulson,  .53  N.  Y.  225.     "It 

Young  V.  Oraohundro,  69  Md.  579,  16  Atl.  depends  upon  the  result  of  an  accounting 

Rep.  120.  upon  equitable  principles  whether  any  part 

2  Avers  v.  Staley  (N.  J.  Ecp),  18  Atl.  of  the  rents  and  profits  received  shall  be  so 
Rep.  1046.  applied.     The  mortgagee  is  entitled  to  have 

'•^  Toomer    v.    Randolph,    60    Ala.   356  ;     them  applied,  in  the  first  instance,  to  reim- 

Dailey  v.  Abbott,  40  Ark.  275.  burse  him  for  taxes  and  necessary  repairs 

•*  Uubbeil  V.  Moulson,  53  N.  Y.  225,  13    made  upon  the  premises;  for  sums  paid  by 

him    upon    prior   incumbrances    upon    tiio 

73 


§  1116.]         mortgagee's  account. 

Since  the  mortgagee's  accounting  is  a  matter  purely  of  equitable 
jurisdiction,  he  cannot  be  compelled  in  any  other  way  to  account. 
A  creditor  of  the  mortgagor  cannot,  by  garnishment  against  the 
mortgagee,  reach  and  subject  rents  and  profits  received  by  him  in 
excess  of  his  demand.  Garnishment  is  a  legal  proceeding,  and 
operates  only  upon  legal  rights  which  the  princii^al  debtor  could 
enforce  in  a  court  of  law.^ 

1116.  The  mortgagee  is  chargeable  only  upon  redemption. 
The  mortgagor's  right  to  hold  the  mortgagee  to  account  for  rents 
and  profits  of  the  mortgaged  premises,  or  for  waste  done  to  them, 
must  be  enforced  in  equity  and  not  by  suit  at  law.^  Though  the 
rents  received  may  be  sufficient  to  satisfy  the  debt  in  full,  the  only 
remedy  of  the  mortgagor  is  by  a  bill  in  equity  for  an  account  and 
redemption.^  He  is  not  chargeable  so  long  as  the  premises  are 
not  redeemed.  He  is  the  legal  owner  of  the  estate,  and  his  ac- 
countability for  rent  is  incident  only  to  the  right  in  equity  to  re- 
deem. There  may  be  a  special  agreement  between  the  parties 
that  the  mortgagee  shall  pay  rent ;  he  may  be  a  lessee  of  the 
premises ;  but  after  the  expiration  of  the  term  of  his  tenancy, 
there  is  no  implication  of  an  agreement  to  continue  to  pay  rent.* 
If  an  estate  under  lease  for  a  term  of  years  be  mortgaged  to  the 
lessee  in  fee,  unless  the  mortgagee  voluntarily  pays  the  rent,  or 
the  mortgage  makes  special  provision  that  he  shall  hold  posses- 
sion in  the  capacity  of  lessee,  the  rent  is  suspended  until  the  con- 
dition be  performed,  or  the  estate  redeemed.  Upon  redemption, 
of  course,  the  lessee,  during  the  term  of  the  lease,  will  be  account- 
able as  mortgagee  for  the  profits.  If,  however,  he  voluntarily  pay 
the  rent  during  such  term,  he  is  not  afterwai'ds  accountable  for  the 
same  as  mortgagee.^ 

estate,  in  order  to  protect  the  title,  and  for  the  court  in  satisfaction  of  the  mortgage." 

costs  in  defending  it;  and  if  he  has  made  Per  Mr.  Justice  Andrews. 

permanent  improvements  upon  the  land,  in  ^  Toomer  v.  Randolph,  60  Ala.  356. 

the  belief  that  he  was  the  absolute  owner,  ^  Farrant  v.  Lovel,  3  Atk.  723 ;  Dexter 

the  increased  value  by  reason  thereof  may  v.   Arnold,   2    Sumn.  108,  124;  Gordon  v. 

be   allowed   him.     In   many  cases  compli-  Hobart,  2   Story,  243;    Seaver   v.  Durant, 

cated  equities  must  be  determined  and  ad-  39  Vt.  103  ;  Chapman  v.  Smith,  9  Vt.  153; 

justed   before   it   can  be  ascertained  what  Givens   v.   M'Calmot,  4   Watts,  460,  464  ; 

part,  if  any,  of  the  rents  and  profits   re-  Bell  w.  Mayor  of  N.  Y.  10  Paige,  49  ;  Daniel 

ceived  is  to  be  applied  upon  the  mortgage  v.  Coker,  70  Ala.  260;  Parris  v.  Houston, 

debt.     In  the  absence  of  an  agreement  be-  78  Ala.  250 ;  Garland  v.  Watson,  74  Ala. 

tween  the  parties,  there  is  no  legal  satisfac-  323. 

tion  of  the  mortgage  by  the  receipt  of  rents  ^  Farris  v.  Houston,  78  Ala.  250. 

and  profits  by  a  mortgagee  in  possession,  *  Weeks  v.  Thomas,  21  Me.  465. 

to  an  amount  to  satisfy  it,  and  his  character  ^  Newall  v.  Wright,  3  Mass.  138,  3  Am. 

as  mortgagee  in  possession  is  not  divested  Dec.  98. 

until  they  are  applied  by  the  judgment  of 

74 


LIABILITY   TO   ACCOUNT.  [§  1117. 

A  mortgagor  who  lias  paid  the  mortgage  debt,  without  requir- 
ing the  mortgagee  to  account  for  rents  received  by  him  while  he 
was  in  possession,  cannot  afterwards  maintain  an  action  against 
him  for  use  and  occupation  ;  but  he  may  maintain  an  action  for 
money  had  and  received  to  recover  back  the  amount  overpaid, 
which  ought  to  have  been  allowed  for  rent ;  ^  and  if  the  rents  and 
profits  exceed  the  amount  of  the  debt  and  interest,  the  excess  may 
be  recovered.^ 

On  a  bill  against  two  or  more  persons  to  redeem,  if  one  of  them 
alone  has  received  rents  and  profits  more  than  sufficient  to  pay 
the  mortgage  debt,  he  alone  should  be  ordered  to  pay  over  the 
surplus.^ 

An  action  of  trespass  quare  clausum  will  not  lie  by  a  mortgagor 
against  his  mortgagee  for  entering  and  harvesting  the  growing 
crops.  These  are  vested  in  the  mortgagee,  and  he  is  entitled  to 
them  as  a  part  of  his  security  ;  and  is  liable  to  account  for  them 
only  in  equity  upon  a  redemption.*  The  objection  to  such  action 
does  not  lie  when  there  is  an  agreement  between  the  parties  which 
makes  the  mortgagor  a  tenant  of  the  mortgagee.^ 

A  prior  mortgagee  in  possession  must  account  to  a  subsequent 
mortgagee  upon  his  redeeming  ;  but  a  subsequent  mortgagee  in 
possession  is  not  bound  to  account  to  a  prior  mortgagee.*^  A  prior 
mortgagee  can  always  secure  the  rents  and  profits  as  against  a  sub- 
sequent mortgagee  by  taking  possession. 

When  a  mortgagee  who  has  been  in  possession  is  called  upon  to 
account  for  rents  and  profits,  and  fails  to  do  so,  his  mortgage  will 
be  declared  satisfied.'' 

1117.  A  grantee  in  possession  under  a  deed  absolute  in  form, 
but  given  by  way  of  security  merely,  is  said  not  to  stand  exactly 
in  the  same  position,  in  reference  to  accounting,  as  an  ordinary 
mortgagee  in  possession  ;  inasmuch  as  he  is  the  agent  of  the  mort- 
gagor as  well  as  mortgagee,  and  is  chargeable  for  any  failure  to  ob- 
tain the  full  rental  value  of  the  premises  only  on  the  same  grounds 
that  an  agent  would  be.^  If  the  grantee  has  good  reason  to  con- 
sider himself  possessed   of  an  absolute  estate  in  the  land,  and  he 

1  Wood  i;.  Felton,  9  rick.  171.    See,  how-  ^  Leeds   v.   Gifford,   41    N.   J.   Eq.  464; 

ever,  Barrett  v.  Blackmar,  47  Iowa,  565.  Galliher  v.  Davidson,  43  La.  Ann.  .526,  9 

-  Freytag  v.  Iloeland,  23  N.  J.  Eq.  36.  So.  Kcp.  114. 

8  Merriam  v.  Goss,  139  Mnss.  77,  28  N.  ^  Morgan  v.  Morgan,  48  N.  J.  Eq.  399, 

E.  Rep.  449.  22  Atl.  Kep.  545. 

*  Sec  §697;  Bagnall  v.  Villar,  L.  R.  12  »  Barnard    i;.   Jcnni.son,   27   Mich.    230; 

Ch.  D.  812  ;  Gilman  v.  Wills,  66  Me.  273,  Clark  v.  Finlon,  90  111.  245 ;  Miller  v.  Curry, 

and  cases  cited  ;  Reed  v.  Elwell,  46  Me.  270.  124  Ind.  48,  24  N.  E.  Rep.  219  ;  Ilarrill  v. 

6  Marden  v.  Jordan,  65  Me.  9.  Stajjleton,  55  Ark.  1,  16  S.  W.  Rep.  474. 

75 


§  1118.]  mortgagee's  account. 

consequently  makes  permanent  improvements,  lie  will  be  entitled  to 
allowance  for  these  when  a  mortgagee  generally  would  not  be  enti- 
tled to  such  allowance.^ 

But  ordinarily  the  same  rules  for  accounting  are  held  to  apply 
in  such  case ;  the  mortgagee  is  compelled  to  account  for  the  rents 
and  profits,  and  he  may  be  allowed  for  necessary  and  proper  re- 
pairs, but  not  for  costly  improvements,  unless  these  be  made  with 
the  mortgagor's  consent,  however  beneficial  they  may  be.  But  if 
such  improvements  are  made  in  good  faith  on  the  part  of  the  mort- 
gagee, under  the  belief  that  he  owns  the  property  absolutely,  he 
may  be  allowed  for  them.^ 

1118.  A  mortgagee  is  equally  liable  to  account  whether  his 
possession  be  before  or  after  the  law  day,  unless  there  is  some 
agreement  to  the  contrary.^  An  equitable  mortgagee  is  under 
the  same  obligation  to  account  that  a  legal  mortgagee  is.^  Where 
redemption  is  allowed  after  a  foreclosure  sale,  if  the  mortgagee 
purchases  and  enters  into  possession  he  must  account  for  the  rents 
and  profits.^  He  is  not  allowed  to  claim  that  his  possession  was 
unlawful.^ 

A  mortgagee  who  has  entered  into  possession  and  received  the 
rents  and  profits  of  the  mortgaged  premises,  and  afterwards  pur- 
chased the  equity  of  redemption,  is  still  liable,  so  far  as  a  subse- 
quent mortgagee  is  concerned,  to  account  for  the  rents  and  profits 
of  the  premises  received  while  he  occupied  as  mortgagee.  When 
the  second  mortgagee  applies  to  redeem  a  prior  mortgage,  he  stands 
in  the  same  position  as  the  mortgagor,  and  is  bound  to  pay  no 
greater  sum  than  the  mortgagor  would  pay.'^ 

A  mortgagee  in  possession  who  holds  possession  by  virtue  of  any 
other  title,  such  as  his  tenancy  by  the  curtesy,  or  by  prior  purchase, 
is  not  chargeable  with  rents  and  profits  during  the  time  he  holds  the 
property  by  that  title.^  And  so  a  mortgagee  in  possession  under  a 
deed  from  the  mortgagor  of  the  equity  of  redemption  is  not  liable  as 

1  Wasatch  Min.  Co.  v.  Jennings,  5  Utah,  ^  Davis  v.  Lassiter,  20  Ala.  561 ;  Ross  v. 
243,   15    Pac.   Eep.  65,    73,  quoting    text;    Boardmau,  22  Hun,  527. 

Harper's  Appeal,  64  Pa.  St.  315.  *  Brayton  v.  Jones,  5  Wis.  117. 

"There  is  a  manifest  distinction,"  says  ^  Xen    Eyek    v.  Casad,    15    Iowa,    524; 

Judge  Sharswood,  "  between  the  two  cases  Hill  v.  Hewett,  35  Iowa,  563 ;  Bunce  t-.West, 

in  reason  and  justice,  which  are  controlling  62  Iowa,  80,  17  N.  W.  Rep.  179  ;  Blain  v. 

guides  in  a'court  of  equity,  where  no  posi-  Rivard,  19  111.  App.  477. 

tive  rule  of  law  intervenes."    The  cases  in  '^  Renshaw  v.  Taylor,  7  Oregon,  315. 

Pennsylvania  are  reviewed,  and  the  law  on  "^  Harrison  v.  Wyse,  24  Conn.  1,  63  Am. 

this  point  clearly  stated.  Dec.  151. 

2  Cookes  V.  Culbertson,  9  Nev.  199.  »  Hart   v.   Chase,   46    Conn.   207  ;   Van 


76 


Duyne  v.  Shann,41  N.  J.  Eq.  312. 


LIABILITY   TO   ACCOUNT.  ,  [§  1118  a. 

a  mortgagee  in  possession  to  account  to  junior  lien-holders  for  rents 
and  profits  received  after  the  time  he  took  possession  under  the 
deed  of  the  equity  of  redemption.^ 

A  mortgagee  in  possession  after  default  is  presumed  to  be  in  pos- 
session in  his  character  of  mortgagee,  and  as  such  to  be  liable  to  ac- 
count for  rents  and  profits  ;  and  such  is  the  presumption  although 
he  first  occupied  as  a  tenant  for  a  fixed  term,  and  while  so  occupy- 
ing purchased  the  mortgage,  and  remained  in  possession  after  the 
expiration  of  his  term  ;  he  is  presumed  to  be  in  occupation  as  a 
mortgagee,  and  not  as  a  tenant  holding  over.^ 

The  mortgagee  must  account  for  the  rents  and  profits  received 
by  him  after  a  decree  of  strict  foreclosure  upon  a  redemption 
within  the  time  allowed  by  the  decree.^  If  a  mortgagee  enters 
into  possession  under  a  defective  foreclosure,  he  is  in  the  position  of 
a  mortgagee  in  possession,  and  is  entitled  to  the  crops  and  other 
products  of  the  land,  and  is  accountable  for  the  rents  and  profits.'* 

1118  a.  A  junior  mortgagee  redeeming  from  a  senior  mortga- 
gee who  has  been  in  possession  may  compel  an  accounting. 
His  right  does  not  rest  on  any  obligation  of  the  senior  mortgagee 
to  him,  for  there  is  no  contract  between  them,  but  upon  the  fact 
that  the  senior  mortgagee  is  under  obligation  to  account  to  the 
mortgagor,  and  the  junior  mortgagee  in  equity  stands  in  the  place 
of  the  mortgagor.  "  The  junior  mortgagee  has  no  right,  therefore, 
to  compel  an  accounting  when  the  mortgagor  has  no  such  right ; 
for  it  is  through  the  mortgagor,  and  the  equity  existing  between 
him  and  the  senior  mortgagee,  that  he  is  enabled  to  compel  an  appli- 
cation of  the  rents  and  profits  to  the  satisfaction  of  the  senior  mort- 
gage. For  these  reasons  it  is  well  settled  that,  in  order  to  charge 
a  mortgagee  with  rents  and  profits,  it  must  be  shown  that  he  has 
occupied  the  mortgaged  premises  under  his  mortgage.  If  the  title 
of  the  mortgagor  has  been  divested,  and  the  mortgagee  has  been 
in  possession  under  a  title  derived  from  the  mortgagor,  he  is  not 
chargeable  with  the  rents  and  profits  of  the  mortgaged  premises."^ 

1  Gray  v.  Nelson,  77  Iowa,  63,  41   N.  W.  ^  Ruckman  t'.  Astor,  9Paige,  517  ;  Dailey 

Rep.  566.  V.  Abbott,  40  Ark.  275.     See  Chapman  v. 

'■*  Anderson   v.  Lanterman,  27   Ohio  St.  Smith,  9  Vt.  153. 

104;  Moore   v.  Degraw,  5  N.  J.  Eq.  346;  *  Ilolton  v.  Bowman,  32  Minn.  191,  19 

Hiliiard  v.  Allen,  4  Cush.  532.  N.  W.  Rep.  734;  Johnson  v.  Saiidhoff,  30 

Possession  by  the  husband  of  the  niort-  Minn.  197,   14    N.   W.  Rep.  799;   Jellison 

gagee,   nnder  an    agreement   between  him  v.  Ilalloran,  44  Minn.  99,  46  N.  W.  Rep. 

and  tlie  supposed  owner,  does  not   enable  332. 

the  mortgagor  to  offset  the  rent  against  the  ^  Gaekell  v.  Viquesney,  122  Ind.  244,  23 

mortgage   debt.     Sanford    v.    Tierce,    126  N.  E.  Rep.  791,  17  Am.  St.  Rep.  364,  per 

Mass.  146.  Coffey,  J. 

77 


§§  1119, 1120.]  mortgagee's  account. 

A  purchaser  at  a  foreclosure  sale,  wliich  is  defective  by  reason  that 
a  junior  mortgagee  was  not  made  a  party  to  the  bill,  must  account 
for  the  rents  and  profits  upon  a  subsequent  redemption  by  the  lat- 
ter, if  such  sale  operates  merely  as  an  assignment  of  the  mortgage  ;  ^ 
but  if  it  operates  not  only  as  an  assignment  of  the  prior  mortgage, 
but  as  a  foreclosure  of  the  equity  of  redemption  subject  to  the 
junior  mortgage,  the  purchaser  standing  in  the  place  of  the  mort- 
gagor or  owner  of  the  premises  is  not  liable  to  account  for  the  rents 
and  profits.^  If  the  junior  mortgagee  wishes  to  secure  these,  he 
must  obtain  the  appointment  of  a  receiver  upon  showing  the  insuffi- 
ciency of  his  security .'^ 

1119.  An  assignee  stands  in  the  place  of  his  assignor  in  re- 
spect to  the  account,  whether  he  be  an  assignee  of  the  mortgage  or 
of  the  equity  of  redemption.  The  mortgagee's  liability  to  account 
to  the  mortgagor  for  the  rents  and  profits,  less  the  amount  paid  for 
taxes  and  repairs,  attaches  to  the  assignee  of  the  mortgage,  and  the 
assiguee  of  the  mortgagor  acquires  the  rights  of  the  latter  in  this 
respect.*  A  transfer  of  the  equity  of  redemption  while  the  mort- 
gagee is  in  possession  necessarily  carries  with  it  to  the  purchaser 
the  right  to  an  account  for  the  rents  and  profits  of  the  premises,  as 
an  incident  to  the  right  of  redemption,  both  those  received  by  the 
mortgagee  before  the  sale  and  those  received  afterwards.^ 

When  a  mortgagee  in  possession  assigns  a  mortgage,  the  mort- 
gagor, having  no  actual  notice  of  the  assignment,  is  entitled  as 
against  the  assignee  to  an  account  of  the  rents  and  profits  up  to  the 
time  of  recording  the  assignment,  aiKl  to  have  them  applied  on  the 
mortgage  debt.*" 

1120.  So  long  as  the  mortgagee  refrains  from  taking  posses- 
sion, he  has  no  right  to  the  rents  and  profits  received  by  the  mort- 
gagor or  any  one  under  him  ;  and  although  thei'e  has  been  a  breach 
of  the  condition,  the  owner  of  the  equity  of  redemption  cannot  be 
called  upon  to  account.''     He  may  redeem  without  paying  rent,  even 

1  Ten  Eyck  v.  Casad,  15  Iowa,  524.  6  Ackerson  v.  Lodi  Branch  R.  R.  Co.  31 

-  Catterlini'.  Armstrong,  79  Ind.  514,  qnot-  N.  J.  Eq.  42. 

in<|  text.     The  case  of  Murdock  v.  Ford,  17  '  Colman  i".  St.  Albans,  3  Ves.  Jun.  25; 

Ind.  52,  in  so  far  as  it  seems  to  hold  that  a  Higgins  v.  York  Buildings  Co.  2  Atk.  107  ; 

purchaser  at  a  foreclosure  sale  which  divests  Drummond  v.  St.  Albans,  5  Ves.  Jun.  433, 

the  title  of  the  mortgagor  is  liable  for  rents  438  ;  Hele  v.  Bcxley,  20  Beav.  127  ;  John- 

and  profits  to  a  junior  mortgagee,  is  disap-  son  v.  Miller,  1   Wils.  (Ind.)  416  ;  Butler 

proved.  v.  Page,  7  Met.  40,  42,  39  Am.  Dec.  757; 

3  Renard  v.  Brown,  7  Neb.  449.  Greer  v.  Turner,  36  Ark.  17  ;   hi  re  Life 

4  Strang  v.  Allen,  44  III.  428.  Asso.  of  America,  96  Mo.  632,  10  S.  W. 
^  Ruckman  v.  Astor,  9  Paige,  517.     And  Rep.  69. 

see  Gelston  v.  Thompson,  29  Md.  595. 

78 


WHAT    THE   MORTGAGEE   IS   CHARGEABLE   WITH.  [§  1121. 

when  lie  has  been  allowed  to  remain  in  possession  under  an  agree- 
ment to  pay  to  the  mortgagee  a  stipulated  rent,  because  the  mort- 
gage does  not  secure  the  rent.  The  agreement  to  pay  this  is  merely 
personal.^ 

Although  the  mortgagor  has  covenanted  in  his  mortgage  to  sur- 
render the  premises  upon  default,  but  when  a  default  occurs  he  re- 
fuses to  surrender,  and  drives  the  mortgagee  to  an  action  to  recover 
possession,  the  latter  is  not  entitled  to  the  rents  and  profits  until  he 
acquires  actual  possession.^ 

A  husband  joined  his  wife  to  release  his  curtesy  in  a  mortgage  of 
his  wife's  separate  real  estate.  The  wife  having  died  the  husband 
married  again,  and  the  second  wife  took  an  assignment  of  the  mort- 
gage. Upon  a  bill  to  redeem  by  the  heirs  of  the  mortgagor,  it  was 
held  that  they  could  not  redeem  witht5ut  paying  interest  for  the 
time  the  husband  held  the  estate  as  tenant  for  life.  "  He  was  not 
legally  liable  upon  the  debt  secured,  and,  as  between  himself  and 
his  wife,  the  assignee  of  the  mortgage,  he  was  under  no  obligation 
to  pay  it,  or  the  interest  upon  it.  .  .  .  By  redeeming  the  *mortgnge, 
the  heirs  might  at  any  time  have  put  themselves  in  a  position  to 
enforce  payment  of  interest  by  the  life  tenant,  and  to  save  them- 
selves from  risk  of  loss  by  his  neglect."  ^ 

When  the  mortgaged  premises  have  been  devised  by  an  insolvent 
owner  to  tlie  mortgagee,  and  he  has  entered  as  devisee,  the  creditors 
of  the  estate  have  the  right  to  demand  an  account  from  him  of  the 
rents  and  profits.* 

A  mortgagor  in  possession  is  not  bound  to  rebuild  structures  de- 
stroyed by  fire,^  or  to  repair  the  premises  when  tliey  have  been 
injured  without  his  default.^ 

II.    What  the  Mortgagee  is  chargeahle  with. 

1121.  A  mortgagee  allowing  the  mortgagor  to  remain  in  occu- 
pation after  the  former  has  taken  possession  for  the  purpose  of 
foreclosure  does  not  necessarily  render  himself  accountable  for  rents 
and  profits.  If  the  mortgagor  is  permitted  to  remain  in  occupation, 
and  to  take  the  profits,  of  course  the  mortgagee  is  not  accountable 
for  them  to  him;''  nor  has  a  second   mortgagee  in   such  case  any 

1  Merritt  v.   Hosmcr,  11    Gray,  270,   71         *  Chalabre  v.  Cortelyou,  2  Paige,  605. 
Am.  Dec.  713.     Ami  see  Cha.se  v.  Palmer,        5  ijcid  v.  Bank  of  Tcnn.  1  Sliced,  262. 

2.5  Me.  .341  ;  Davenport  v.  Bartlt  tt,  9  Ala.  «  Campbell    v.    Macoml),   4    Johns.  Cii. 

179;  Gilnian  v.  Will.s,  66  Me.  273.  534. 

2  Teal  V.  Walker,  111  U.  S.  242,4  Sup.  '  Keynoids  v.  Canal  &  Banking  Co.  of 
Ct.  420.  N.  ().  30  Ark.  520;   White  i-.  Maynard,  54 

3  Martin  v.  Martin,  146  Mass.  517,  16  N.  Vt.  575. 

E.  Rep.  413.  Y9 


§  1121.]  mortgagee's  account. 

claim  upon  the  first  mortgagee  to  account  after  formal  possession 
taken  by  the  former.  The  second  mortgagee  may  take  possession 
as  against  the  mortgagor  if  the  latter  holds  in  his  own  right,  and 
thus  exclude  him  and  take  the  rents  and  profits  to  his  own  use.  If 
the  first  mortgagee  should  by  previous  entry  and  actual  occupation, 
or  by  virtue  of  his  superior  title,  prevent  the  second  mortgagee 
from  making  entry,  then  he  would  be  held  to  account,  in  favor  of 
the  second  mortgagee,  for  the  rents  and  profits.^  A  second  mort- 
gagee has  also  the  full  power  in  any  case  to  protect  himself,  by 
paying  off  the  first  mortgage  and  taking  entire  control  of  the  mort- 
gaged premises.  The  taking  of  formal  possession  and  the  record- 
ing of  the  certificate  in  the  registry  of  deeds  does  not  estop  the 
first  mortgagee  to  show  that  he  was  not  in  actual  possession,  nor 
does  his  formal  entry  imply  a  continued  possession  under  such  en- 
try ;  and  if  a  second  mortgagee  would  charge  the  first  with  the  rents 
and  profits,  he  should  attempt  to  enter  under  his  own  mortgage,  or 
should  tender  the  debt  due  to  the  first  mortgagee.^  The  mortgagee 
having  taken  possession  and  allowed  the  mortgagor  to  remain  upon 
the  property,  and  to  take  its  proceeds,  may  become  liable  to  ac- 
count to  subsequent  creditors  for  the  rents  and  profits  which  he 
should  properly  have  applied  as  a  credit  upon  his  mortgage.^ 

As  against  a  purchaser  from  the  mortgagor,  the  mortgagee  has 
no  right  to  allow  any  one,  as,  for  instance,  the  widow  of  the  mort- 
gagor, to  occupy  the  premises,  or  any  part  of  them,  without  paying 
rent.  He  is  accountable  for  the  whole  profits  of  the  estate,  after 
allowing  a  reasonable  time  to  gain  possession  by  legal  process.* 

A  mortgagee  is  not  accountable  to  a  subsequent  incumbrancer 
or  purchaser  for  the  rent  of  a  house  of  which  he  has  taken  formal 
possession  for  the  purpose  of  foreclosure,  when  the  house  is  occu- 
pied under  a  claim  of  right  adversely  to  him;  as,  for  instance, 
when  occupied  by  the  mortgagor  and  his  family  under  a  homestead 
right  not  released  in  the  mortgage.^  But  if  the  mortgagor  has 
a  right  of  homestead  in  a  part  of  the  mortgaged  premises,  which 
right  he  has  released  in  a  first  mortgage  but  not  in  a  second,  the 
first  mortgagee,  having  taken  actual  possession  for  the  purpose  of 

1  Coppring  i-.  Cooke,  I  Vern.  270;  De-  ^  Decker  v.  Wilson,  45  N.  J.  Eq.  772,  18 

marest  v.  Berry,  16  N.  J.  Eq.  481  ;  Hitch-  Atl.  Rep.  843. 

cock  V.  Fortier,   65  111.  239;   Watford   v.  *  Thayer  v.  Richards,  19  Pick.  398;  Butts 

Gates,  57  Ala.  290;  White  v.  Maynard,  54  v.  Broughtou,  72  Ala.  294. 

Vt.  575.  5  Taft  v.  Stetson,  117  Mass.  471;  Sillo- 

-  Bailey  v.  My  rick,  52  Me.  132  ;  Charles  way  v.  Brown,  12  Allen,  30. 
V.  Dunbar,  4  Met.  498.     See,  also,  Dawson 
y.  Drake,  30  N.J.  Eq.  601. 
80 


WHAT    THE    MORTGAGEE   IS    CHARGEABLE   WITH.  [§  1122. 

foreclosure,  and  allowed  the  mortgagor  to  occupy  the  homestead, 
is  accountable  to  the  second  mortgagee  for  the  rent  he  might  have 
obtained  for  the  homestead. ^ 

If  one  who  is  a  prior  mortgagee  afterwards  acquires  the  equity 
of  redemption  subject  to  a  second  mortgage,  and  then  takes  posses- 
sion, he  is  not  regarded  as  a  mortgagee  in  possession,  and  as  such 
accountable  for  the  rents  and  profits  to  the  junior  mortgagee/^ 

1122.  Where  the  mortgagee  has  himself  occupied  and  im- 
proved the  estate  in  person,  the  value  of  the  occupation  must  neces- 
sarily be  determined  by  evidence  of  experts  as  to  what  ought  to 
have  been  received  for  the  rent  of  the  property  ;  ^  and  such  evi- 
dence is  also  admissible  in  cases  where  the  mortgagee,  not  being 
himself  in  possession,  has  kept  false  accounts  or  no  accounts  of  rents 
received,  or  there  is  such  misconduct  of  any  kind  on  his  part  as 
makes  a  resort  to  this  kind  of  evidence  necessary.  But  the  mere 
fact  that  the  mortgagee  resides  at  a  distance,  and  must  rely  upon 
agents  to  manage  the  estate,  should  not  make  evidence  of  experts, 
that  a  higher  rent  could  have  been  received,  admissible  to  charge 
him  with  a  greater  amount  of  rent  than  he  has  received.* 

If  a  mortgagee  himself  occupies  the  premises,  especially  if  they 
consist  of  a  farm  under  cultivation,  upon  which  labor  and  money 
must  be  bestowed  to  produce  annual  crops,  he  will  be  charged  with 
such  sums  as  will  be  a  fair  rent  of  the  premises,  without  regard  to 
what  he  may  realize  as  profits  from  the  use  of  it.^  The  expenditures 
necessary  to  carry  on  a  farm,  and  the  profits  derived  from  it,  are 
so  wholly  within  the  knowledge  of  the  occupant  that  it  would  be 
impossible  for  the  mortgagor  to  show  the  account  to  be  wrong, 
except  in  the  result.^ 

If  the  mortgagee  occupies  the  mortgaged  premises  jointly  with 
the  mortgagor,  he  will  be  charged  with  a  fair  proportion  of  the  rent 
of  the  land.'^ 

Where  a  mortgagee  of  an  undivided  half  of  property  enters  into 
a  partnership  with  the  owner  of  the  other  half  interest  for  the  use 

1  Richardson  v.  Wallis,  5  Allen,  78.  *  Gerrii^h  v.  Black,  104  Mass.  400. 

2  Rogers  v.  Ilerrou,  92  111.  583.  ^  Equitable  Trust  Co.  v.  Fisher,  106  III. 
•■5  Smart  i\  Hunt,  1  Vern.  418  ;  Trulock  y.     189;  Engleman  Trans.  Co.  u.  Longwcll,  2 

Robey,  1.5  Sim.  256;  Johuhon  v.  Miller,  1  Flip.    601;   Still    v.    Buzzell,   60    Vt.    478; 

Wils.  (Ind.)  416;  Montgomery  v.  Chadwick,  Robertson  v.  Read,  52  Ark.  381,  14  S.  W. 

7  Iowa,  114 ;  Moore  v.  Degraw,  5  N.  J.  Eq.  Rep.  387,  20  Am.  St.  Rep.  188. 

346;  Van   Buren  v.  Olmstcad,  5   Faige,  9 ;  ^  Sanders  v.  Wilson,  34  Vt.  318. 

Barnett  v.   Nelson,  54  Iowa,  41,  6  N.  W.  "^  Murdock  r.  Clarke,  90  Cal.  427,  27  Pac. 

Rep.  49;  Murdock  v.  Clarke,  59  Cal.  683,  Rep.  275. 
(juoting  text;   Dozier  v.  Mitchell,  65   Ala. 
511. 

VOL.   II.                     6  81 


§  1123.]  MORTGAGEE  S   ACCOUNT. 

of  the  property  as  a  mill,  he  will  be  charged  with  a  fair  rental, 
though  the  business  turns  out  disastrously .^ 

What  is  a  reasonable  rent  is  a  matter  to  be  determined  from  a 
consideration  of  all  the  circumstances  of  the  case.  The  price  that 
might  be  obtained  by  a  letting  at  public  auction  is  not  necessarily 
a  proper  criterion  ;  for  in  many  cases  such  a  rent  would  be  no  just 
standard  of  the  real  value  of  the  rent. 

1123.  As  a  general  rule  the  mortgagee  in  possession  is 
held  to  the  exercise  of  such  care  and  diligence  as  a  provident 
owner  in  charge  of  the  property  would  exercise  ;  but  he  will  not 
be  held  accountable  for  anything  more  than  the  actual  rents  and 
profits  received,  unless  there  has  been  wilful  default  or  gross  neg- 
ligence on  his  part.2  It  is  the  fault  of  the  mortgagor  that  he  lets 
the  land  fall  into  the  hands  of  the  mortgagee,  and  the  mortgagor 
should  be  required  to  prove  actual  fraud  or  negligence  on  the  part 
of  the  mortgagee  before  he  can  be  charged  for  more  than  his  actual 
receipts  of  rents  and  profits. 

He  will  not  be  held  to  account  according  to  the  value  of  the 
property,  but  for  what  he  should  with  reasonable  care  and  atten- 
tion have  received.^  Neither  is  he  required  to  enter  into  any  spec- 
ulations for  the  benefit  of  the  mortgagor,^  but  to  protect  the  prop- 
erty as  it  is,  and  to  obtain  from  it  what  returns  it  will  yield  under 
prudent  management.     It  has  been  suggested,  however,  that  when 

1  Engleman  Trans.  Co.  v.  Longwell,  2  South  Boston  Savings  Bank,  148  Mass. 
Flip.  p.  601,  48  Fed.  Rep.  129.  300,  19  N.  E.  Eep.382;  Montague  i'.  Boston 

2  Parkinson  v.  Hanbury,  L.  R.  2  H.  of  &  Albany  R.  R.  Co.  124  Mass.  242.  Mis- 
Lords,  1.;  Hughes  v.  Williams,  12  Ves.  souri :  Ely  y.  Turpin,  75  Mo.  86;  Turner 
493;  Scruggs  v.  Railroad  Co.  108  U.  S.  r.  Johnson,  95  Mo.  431,  7  S.  W.  Rep.  570 ; 
368,  2  Sup.  Ct.  Rep.  780;  Peugh  v.  Davis,  Stevenson  v.  Edwards,  98  Mo.  622,  12  S. 
4  Mack.  23,  113  U.  S.  542;  Engleman  W.  Rep.  255.  Nebraska:  Comstock  v. 
Trans.  Co.  v.  Longwell,  2  Flip.  601,  48  Fed.  Michael,  17  Neb.  288,  22  N.  W.  Rep.  549. 
Rep.  129.  New  Jersey:  Dawson  v.  Drake,  30  N.  J. 

Alabama:   Barron   v.  Paulling,  38   Ala.  Eq.  601 ;  Shaeffer  v.  Chambers,  6  N.  J.  Eq. 

292;  Dozier  v.  Mitchell,  65  Ala.  511;  Gre-  548,  47  Am.  Dec.  211.     New  York:    Van 

thamu.  Ware,  79  Ala.  192;  Butts  f.Brough-  Bnren  v.  Olmstead,  5  Paige,  9;  Quinn  v. 

ton,  72  Ala.  294.     California:  Murdock  v.  Brittain,   3  Edw.  314;  Walsh    v.  Rutgers 

Clarke,  90  Cal.  427,  27  Pac.  Rep.  275.     Illi-  Fire   Ins.    Co.    13   Abb.   Pr.  33.     Oregon: 

nois:  Moore  u.  Titman,  44  111.  367  ;  Strang  Campbell  v.  McKinney,  22  Oreg.  459,30 

t;.  Allen,  44  111.  428;   Harper  v.  Ely,   70  Pac.  Rep.  231. 

111.  581 ;  Mosier  v.  Norton,  83  111.  519,  100  ^  Murdock  v.  Clarke,  59  Cal.  683,  quot- 

111.  63  ;  Clark  v.  Finlou,  90  111.  245  ;  Pinneo  ing  text,  90  Cal.  427,  27   Pac.  Rep.  275  ; 

V.  Goodspeed,  120  III.  524,  12  N.  E.  Rep.  Peugh  v.   Davis,   4  Mack.    23;    Steveuson 

196;  Jackson  r.  Lynch,  129  111.  72,21  N.E.  ij.  Edwards,    98   Mo.   622,   12  S.  W.  Rep. 

Rep.  580 ;   Magnusson  v.  Charleson,  9  111.  255. 

App.  194.  Maine:  Milliken  i-.  Bailey, 61  Me.  *  Hughes  v.  Williams,  12  Ves.  493,  113 

316.     Massachusetts  :    Donahue   v.    Chase,  U.  S.  542 ;  Rowe  v.  Wood,  2  J.  &  W.  553, 

139  Mass.  407,  2  N.  E.  Rep.  84  ;  Brown  v.  in  relation  to  working  a  mine. 

82 


WHAT    THE   MORTGAGEE   IS    CHARGEABLE   WITH.       [§  1123  a. 

the  mortgagee  is  unable  to  procure  a  tenant  for  a  large  farm,  it  may 
be  his  duty  to  cause  it  to  be  tilled  in  accordance  witli  good  ordinary 
husbandry.^ 

If  the  mortgagee  suffers  a  notoriously  insolvent  tenant  to  i-emain 
in  possession,  he  is  accountable  for  the  rent  during  such  time,  de- 
ducting the  time  reasonably  necessary  to  expel  him  by  legal  means, 
and  to  obtain  a  responsible  tenant.^  It  is  wilful  default  on  the  part 
of  the  mortgagee  to  allow  a  tenant  to  remain  in  possession  several 
years  without  paying  rent,  and  without  any  demand  upon  him  for 
it.^  He  ma}'  also  render  himself  liable  for  the  rents  and  profits  by 
assigning  the  premises  to  an  insolvent  person,  and  putting  him  in 
possession.**  A  mortgagee  is  liable  for  rent  lost  or  not  collected 
through  the  wilful  or  gross  negligence  of  his  agent,  although  ordi- 
nary and  proper  care  was  exercised  in  the  selection  of  the  agent.^ 

If  he  has  lost  rent  which  he  should  have  received,  as,  for  in- 
stance, by  refusing  a  higher  rent  from  a  responsible  tenant,  or  by 
turning  out  without  sufficient  cause  a  responsible  tenant,  and  then 
getting  less  rent  or  none  at  all,  he  is  chargeable  with  the  rent  lost. 
If  the  mortgagor  is  aware  that  a  higher  rent  may  be  obtained,  he 
should  inform  the  mortgagee  of  the  fact;  and  his  neglect  to  do  so 
may  prevent  his  charging  the  mortgagee  with  such  higher  rent.® 
But  when  the  mortgagee,  in  the  exercise  of  a  reasonable  discretion 
and  care,  has  already  agreed  upon  the  terms  of  a  lease,  he  is  not 
chargeable  with  a  higher  rent  for  the  reason  that  the  mortgagor  or 
any  one  else  offers  a  higher  rent.'^ 

A  mortgagee  who  takes  possession  of  the  mortgaged  premises, 
consisting  of  an  hotel,  and  leases  the  same,  is  not  obliged  to  allow 
the  keeping  of  a  bar  for  the  sale  of  liquors  therein  ;  and  the  fact 
that  a  higher  rent  could  have  been  obtained,  had  he  allowed  such  a 
privilege,  cannot  be  urged  on  a  bill  to  redeem,  for  the  purpose  of 
rendering  him  accountable  for  the  higher  rent.^ 

1123  a.  A  qualification  of  the  general  rule  arises  when  one 
goes  into  possession  in  another  character,  as,  for  instance,  under 
a  deed  absolute  in  form,  and  the  circumstances  are  such  that  he  may 
well  believe  himself  to  be  in  fact  the  owner  of  the  estate,  subject 

'  Shaeffer  t'.  Chambers,  6  N.  J.  Eq.  548,  c  Huglies   j;.    Williams,    12    Ves.    493 

47  Am.  Dec.  211.  Montague  v.  Boston  &  Alliany  R.  R.  Co 

-  Miller  V.Lincoln,  6  Gray,  .'J.'JG ;  Greer  124  Mass.  242. 

V.  Turner,  36  Ark.  17.             "  "  Hubbard  r.  Shaw,  12  Allen,  120;  Mon 

3  Brandon  v.  Brandon,  10  W.  R.  287.  tague  v.  Boston  &  Albany  R.  R.  Co.  124 

*  Ila;^tliorp  v.  Hook,  1  Gill  &  J.  270.  Mass.  242  ;  Mosbicr  v.  Norton,  100  111.  63 

6  Montague  v.  Boston  &  Albany  R.  R.  »  Curtiss  v.  Sheldon,  91  Micli.  390,  51  N 

Co.  124  Mass.  242.  W.  Rep.  1057. 

83 


§  1123  a.]  mortgagee's  account. 

only  to  an  agreement  to  sell.  Such  a  grantee  is  not  technically  a 
mortgagee  in  possession.  The  character  of  mortgagee  is  cast  upon 
him  by  the  application  of  equitable  rules  to  an  oral  agreement  in 
■contradiction  of  the  deed,  and  when,  perhaps,  the  transaction  might 
be  construed  as  a  conditional  sale.  In  such  case  the  mortgagee  is 
chargeable  only  with  what  he  has  received,  and  not  with  what  he 
might  luive  received.-^  Such  is  also  the  case  when  the  mortgagee  en- 
ters not  as  mortgagee,  but  as  purchaser  under  a  tax  title ;  ^  or  as  a 
trespasser,  or  as  a  tenant  of  the  mortgagor.^  This  exception  to  the 
rule  was  clearly  defined  by  Lord  Cranworth,  in  the  House  of  Lords, 
when  he  said  :  "•  It  is  certainly  too  much  to  force  upon  persons  the 
character  of  mortgagees  in  possession  when  they  never  were  in  ac- 
tual possession  as  such,  and  never  received  any  rents,  except  when 
they  had,  by  subsequent  arrangement,  become  entitled,  as  the}^  be- 
lieved, as  purchasers,  to  the  actual  possession,  or  to  the  actual  receipt 
of  rents  and  profits  then  accruing."  Lord  Westbury  said  :  "  It  is 
undoubtedly  settled  in  courts  of  equity  that,  if  a  mortgagee,  in  that 
character,  receives  rents  and  profits,  he  will  be  bound  to  account,  not 
only  for  what  he  has  received,  but  for  what,  without  wilful  default, 
he  might  have  received,  upon  the  ground  that  he  is  to  be  regarded 
as  bailiff  of  the  mortgagor  or  his  representatives  ;  but  if  a  mortgngee 
takes  in  another  character,  more  especially  if  he  receives  in  a  char- 
acter adverse  to  the  rights  of  the  mortgagor,  then  it  would  be  im- 
possible to  ascribe  to  him,  by  any  inference  of  law,  the  conclusion 
that  he  intended  to  take  possession,  or  to  receive  the  rents  as  the 
bailiff  of  the  mortgagor,  or  that  that  relation  could  properly  be  im- 
puted to  him."  * 

In  case  of  waste  by  destroying  valuable  timber,  the  measure  of 
damages  is  not  the  value  of  the  timber,  but  the  diminished  value  of 
the  land,  —  the  difference  between  its  market  value  before  and  after 
the  destruction  of  the  timber.  It  is  error  for  the  trial  court  to  ac- 
cept the  opinion  of  witnesses  that  the  mortgagor  suffered  no  dam- 
age, because  the  destruction  of  the  timber  rendered  the  land  capable 
of  cultivation  and  of  yielding  a  revenue  ;  and  at  the  same  time  to 
disregard  evidence  in  reference  to  the  decreased  market  value  of  the 
land.5 

1  Parkinson  v.  Hanbury,  L.  R.  2  H.  L.  1 ;  Westcott,  17  R.  I.  504,  23  Atl.  Rep.  25.    See, 

Morris  v.  Budlong,  78  M.  Y.  543  ;  Moore  v.  also,  Gaskell  v.  Viquesney,  122  Ind.  244,  23 

Cable,  1  Johns.  Ch.  384 ;  Harper's  Appeal,  N.   E.    Rep.   791;    Young  v.   Omolnindro, 

64  Pa.  St.  315.  69  Md.  424,  16  Atl.  Rep.  120. 

-  Hall  V.  Westcott,  17   R.  I.  504,  23  Atl.  *  Parkinson  v.  Hanbury,  L.  R.  2  H.  L.  1. 

Rep.  25.  ^  Perdue  v.  Brooks,  85  Ala.  459,  5  So. 

3  Daniel  i-.  Coker,  70  Ala.  260;  Hall  v.  Rep.  126. 
81 


WHAT    THE   MORTGAGEE   IS   CHARGEABLE   WITH.       [§§  1123  5-1125. 

1123  h.  The  mortgagee  must  account  for  waste  committed 
while  he  is  personally  in  possession.^  When  the  security  is  in- 
sufficient, he  will  not  be  enjoined  from  cutting  timber  or  opening  a 
mine.  So  long  as  he  does  not  commit  wanton  destruction,  he  may 
also  clear  and  cultivate  the  land.^  He  is  entitled  to  make  the  most 
of  the  property  for  the  purpose  of  realizing  what  is  due  to  him. 
He  has  only  to  account  for  the  proceeds  of  the  property.^  But  a 
morto-agee  having  properly  rented  the  land  to  a  tenant  is  not  ac- 
countable for  damages  done  without  his  knowledge,  or  for  wood  cut 
and  used  for  firewood  by  such  tenant.^ 

1124.  If  the  mortgagee  has  kept  no  proper  accounts  of  the 
rents  and  profits  received  by  him,  he  is  chargeable  with  what  he 
might  have  received,  and  must  be  presumed  to  have  received,  by 
the  use  of  ordinary  care.^  If  the  mortgagee  be  unable  to  render  an 
account,  he  is  chargeable  with  a  fair  occupying  rent.*^ 

The  account  must  include  all  rents  received  from  the  time  of 
the  mortgagee's  entry  into  possession.'  Although  redemption  is 
sought  by  one  having  only  a  limited  interest  in  the  property,  as,  for 
instance,  a  right  of  dower,  the  mortgagee  is  liable  to  account  not 
merely  from  the  time  of  the  demand  upon  him,  but  from  the  date 
of  his  entry.^ 

1125.  A  mortgagee  may  work  a  mine  upon  the  mortgaged 
property,  if  the  work  be  carried  on  in  a  proper  manner.^  Of  course 
the  product,  less  the  expense  of  working  it,  must  be  applied  to  the 
payment  of  the  mortgage  debt.  But  he  would  not  be  justified  in 
improving  a  mine  by  a  large  expenditure,  or  at  most  to  advance 
more  for  this  purpose  than  would  a  prudent  owxxqvP  A  mortgagee 
may  even  open  a  new  mine  when  the  mortgaged  estate  is  of  insuffi- 
cient value  aside  from  the  mine  ;  and  he  is  chargeable  with  only 
the  net  profits  of  working  it."  But  if  the  property  is  otherwise 
sufficient,  the  mortgagee  has  no  right  to  open  and  work  mines,  and, 

1  Sandon  v.  Hooper,  6  Beav.  246 ;  Horu-  Campbell  (Ky.),  3  S.  W.  Rep.  368  ;  Hall  v. 
by  V.  Matcham,   16   Sim.  32.5  ;   Midleton  v.  Westcott,  17  R.  I.  504,  23  Atl.  Rep.  25. 
Eliot,  15  Sim.  531  ;    Oiuleidonk  v.  Gray,  «  Montgomery    v.   Chadwick,    7    Iowa, 
19  N.  J.  Eq.  65;  Daniel  v.  Coker,  70  Ala.  114  ;  Gordon  v.  Lewis,  2  Sumn.  143,  1.50; 
260.  Clark  v.  Smith,  1  N.  J.  Eq.  121. 

2  Morrison  v.  M'Leod,  2  Led.  Eq.  108.  ^  Lupton  v.  Almy,  4  Wi.s.  242;  Acker- 

3  Millett  V.  Davey,  31  Buav.  470,  per  many.  Lyman,  20  Wis.  454;  Reynolds  v. 
Romilly,  M.  R.  Canal  &  Banking  Co.  of  N.  O.  30  Ark.  520. 

■*   Iliihhard  v.  Shaw,  12   Allen,  120;  On-  ^   Dela  y.  Stnnwood,  62  Me.  574. 

derd(jnk  v.  Gray,  19  N.  J.  Eq.  G5.  "  Irwin  v.  Davidson,  ;}  Ired.  E(i.  311. 

6  Dexter  v.  Arnold,  2  Sumn.  108;  Van  i"  Rowe  v.  Wood,  2  J.  &  W.  55.'i. 

IJureu  V.   Olmstcad,  5  Paige,  9 ;    Fray  v.  "  Millett  v.  Davey,  31  Beav.  470. 

85 


§  1126.]  mortgagee's  account. 

if  he  does  so,  will  be  charged  with  the  gross  receipts,  without  any 
allowance  for  the  expenses  of  working.^ 

III.  Allowances  for  Repairs,  and  Improvements. 

1126.  The  rule  as  to  repairs.  —  Until  foreclosure,  the  mort- 
gagee, although  in  possession  for  the  purpose  of  foreclosing,  is  not 
the  owner  of  the  property,  but  beyond  securing  payment  of  the 
debt  due  him  is  really  in  the  position  of  trustee  for  the  owner. 
He  has  no  authority  to  make  the  estate  better  at  the  expense  of 
the  mortgagor,  but  is  bound  to  use  reasonable  means  to  preserve 
the  estate  from  loss  and  injurj'.^  He  cannot  charge  the  mortgagor 
with  expenditures  for  convenience  or  ornament.  The  rule  is  some- 
times stated  to  be  that  the  mortgagee  must  preserve  the  estate  in 
as  good  a  condition  as  that  in  which  he  received  it.  But  he  may 
properly,  under  some  circumstances,  go  beyond  this,  and  supply 
things  that  were  wanting  at  the  time  of  entry  ;  as  where  the  doors 
or  windows  of  a  house  are  gone,  he  is  justified  in  supplying  these 
in  order  to  put  the  estate  in  condition  for  occupation.^  What  is  a 
proper  expenditure  must  depend  upon  the  circumstances  of  each 
case.  If  the  estate  be  a  valuable  one,  handsomely  laid  out,  with 
many  young  fruit  and  ornamental  trees,  and  the  mortgagee  can- 
not by  reasonable  efforts  let  it  for  a  sum  sufficient  to  keep  it  in 
proper  repair  and  preserve  the  fruit-trees,  he  may  be  allowed  the 
expenses  necessary  to  keep  it  in  such  repair  ;  but  not  for  expendi- 
tures in  cultivating  the  land,  or  for  money  paid  for  a  horse  and 
cart  and  cow.* 

The  mortgagee  in  possession  is  bound  to  make  all  reasonable  and 
necessary  repairs,  and  is  responsible  for  loss  occasioned  by  his  wil- 
ful default  or  gross  neglect  in  this  respect.^  What  are  reasonable 
and  necessar}'  repairs  depends  upon  the  particular  circumstances  of 
the  case.*^  He  is  not  to  be  charged  with  exactly  the  same  degree  of 
care  that  a  person  in  possession  of  his  own  property  would  ordina- 
rily take.'^  He  is  not  bound  to  go  further  than  to  keep  the  estate 
in  necessary  repair;  or  to  make  full  and  complete  repairs  if  he 
would  thereby  incur  expense  disproportionate  to  the  value  of  the 

1  Millett  V.  Davcy,  31    Beav.  470.     And         ■*  Spavhawk  i-.  Wills,  5  Gray,  423. 

see  Hood  v.  Easton,  2  Giff.  692,  2  Jur.  N.  S.  ^  Baruelt  v.  Kelson,  54  Iowa,  41,  37  Am. 

729.  Kep.  183;  Dozier  v.  MitcluU,  65  Ala.  511, 

2  Hicklin  V.  Marco,  46  Fed.  Eep.  424,  quoting  text;  State  y.  Brown,  73  Md.  484, 
per  Deady,  J.;   Miller  v.  Curry,  124  Ind.  21  Atl.  Rep.  374. 

48,  24  N.  K.  Rep.  219.  ^  Dexter  v.  Arnold,  2  Stimn.  108;  Me 

3  Woodward    v.  Phillips,  14  Gray,  132;     Cumber  ;;.  Gilinan,  15  111.381. 

Rowell  V.  Jewett,  73  Me.  365.  '^  Shaeffer  v.  Chambers,  6  N.  J.  Eq.  548. 

86 


ALLOWANCES  FOR  REPAIRS  AND  IMPROVEMENTS.   [§  1127. 

estate  or  to  his  own  mortgage  interest.  He  is  not  even  bound  toi 
repair  defects  arising  in  the  ordinary  way  by  waste  and  decay. 

A  clause  in  a  decree  for  redemption  directing  that  the  mortgagee 
in  possession  be  allowed  for  the  improvements  made  upon  the  prem- 
ises, and  tiiat  the  master  report  the  value  of  such  improvements,  is 
merely  a  less  formal  equivalent  for  a  direction  that  the  master  in- 
quire whether  the  defendants  had  made  any,  and  what,  lasting  or 
permanent  improvements  on  the  premises.^  It  is  proper  that  such 
a  special  direction  should  be  inserted  in  the  decree  if  a  primd  facie 
case  is  made  for  it  at  the  hearing,  but  in  itself  it  does  not  deter- 
mine that  there  are  improvements  to  be  allowed  for.^ 

1127.  The  ordinary  rule  in  respect  to  improvements  is  that 
the  mortgagee  will  not  be  allowed  for  them  further  than  is  proper 
to  keep  the  premises  in  necessary  repair.  Unreasonable  improve- 
ments may  be  of  permanent  benefit  to  the  estate  ;  but  unless  made 
with  the  consent  and  approbation  of  the  mortgagor,  no  allowance 
can  be  made  for  them.^  The  mortgagee  has  no  right  to  impose 
them  upon  the  owner,  and  thereby  increase  the  burden  of  redeem- 
ing. The  improvements  will  inure  to  the  benefit  of  the  estate 
upon  redemption,  but  in  the  mean  time  the  mortgagee  has  the  use 
of  them.  It  is  his  own  choice  to  make  them  while  he  holds  only 
a  defeasible  title.*  A  default  having  occurred,  he  can,  except  in 
those  States  where  mortgages  other  than  those  having  powers  of 
sale  must  be  foreclosed  by  entry  and  possession,  by  a  foreclosure  suit, 
either  sell  the  property  to  another,  or  buy  it  himself  and  hold  it 
absolutely. 

But  while  the  mortgagee  in  possession  is  not  allowed  to  charge 
for  lasting  improvements,  he  is  not  on  the  other  hand  chargeable 
with  the  increased  rents  and  profits  which  are  directly  traceable 
to  such  improvements,  made  by  him.^     If,  however,  improvements 

1  As  in  Webb  v.  Korke,  2  Schoales  &  L.  Jordan,  28  Cal.  301, 32  Cal.  397  ;  Murdock  v. 

661,  670.  Clarke,  59  Cal.  683;  Lowndes  v.  Chisholm, 

■^  Merriam  v.  Goss,  139  Mass.  77,  28  N.  E.  2  McCord  Ch.  455,  16  Am.  Dec.  667  ;  Ruby 

Rep.  449,  in  the  language  of  Holmes,  J.  v.  Abyssian  Soc.  of  Portland,  15  Me.  306; 

3  Harper's  Appeal,  64  Pa.  St.  315  ;  Riis-  Ho])kins  v.  Stephenson,  1  J.  J.  Marsh.  341  ; 
sell  v.  Blake,  2  Pick.  505;  Clark  v.  Smith,  Morgan  t-.  Walbridge,  56  Vt.  405;  Dozier 
1  N.  J.  Eq.  121  ;  Bell  v.  Mayor  of  N.  Y.  10  v.  Mitchell,  65  Ala.  511  ;  American  Button- 
Paige,  49  ;  Quin  v.  Brittain,  Hoff.  353,  354  ;  Hole  Co.  v.  Burlington  Mut.  Loan  Asso.  68 
Moore  r.  Cable,  \  Johns.  Ch.385,  per  Chan-  Iowa,  326,  27  N.  W.  Rep.  291  ;  Miller  v. 
cellor  Kent;  Mickks  r.  Dillaye,  17  N.  Y.  Curry,  124  Ind.  48,  24  N.  E.  Rep.  219. 
80,  per  Denio,  J.;  Witmore  v.  Roberts,  10  *  Robertson  v.  Read,  52  Ark.  381,  14  S. 
How.  Pr.  51  ;  Benedict  v.  Oilman,  4  Paige,  W.  Rep.  387. 

58;  Neale  v.  Hagthrop,  3  Bland  Ch.  551,  &  Moore  v.  Cable,  1  Johns.  Ch.  385 ;   Bell 

590;  Doughertys.  McColgan,  6  G.&  J.  275;  t;.  Mayor  of  N.  Y.  10  Paige,  49;  Raynor 

McCarron  v.  Cassidv,  18  Ark.  34  ;  Hidden  c.  v.  Raynor,  21   Hun,  36  ;   Clark  v.  Smith,  } 

87 


§  1128.]  mortgagee's  account. 

be  made  by  a  third  person  in  possession  in  his  own  wrong,  they 
inure  to  the  benefit  of  the  mortgagor,  and  a  mortgagee  upon  entry 
is  chargeable  with  the  rents  arising  from  such  improvements. ^ 
Such  would  also  be  the  case  if  the  improvements  are  made  by  the 
mortgagor.  But  the  mortgagee  is  not  otherwise  responsible  for 
improvements  made  by  the  mortgagor,  either  to  him  or  to  mechan- 
ics furnishing  labor  or  material  without  the  mortgagee's  direction. ^ 

1128.  Exception  to  the  rule.  —  When  the  mortgagee  makes  per- 
manent improvements,  supposing  he  has  acquired  an  absolute  title 
by  foreclosure,  upon  a  subsequent  redemption  he  is  allowed  the 
value  of  them,^  especially  if  the  mortgagor  has  by  his  actions  to 
any  extent  favored  the  mistaken  belief.* 

In  like  manner  a  purchaser  at  a  foreclosure  sale,  who  has  made 
valuable  improvements  in  the  belief  that  he  has  acquired  an  abso- 
lute title,  is  entitled  to  be  paid  for  them  in  case  the  premises  are 
redeemed.^  Such  a  purchaser,  when  the  equity  of  redemption  has 
not  been  cut  off  by  the  sale,  is  in  fact  an  assignee  of  the  mortgage 
title.  In  like  manner  a  purchaser  in  good  faith  from  the  mortgagee 
in  possession,  and  with  the  assurance  that  he  gave  a  perfect  title, 
is  entitled  to  allowance  for  improvements  made  by  him  thereon, 
although  these  consist  of  new  structures.^  Such  purchaser  may 
remove  improvements  made  by  him,  if  he  can  do  this  without  in- 
jury to  the  premises  ;  and  in  that  case  he  cannot  recover  the  value 
from  the  person  who  redeems,  nor  can  he  be  compelled  to  account 
to  him  for  the  rents  and  profits  arising  from  such  improvements." 

N.  J.    Eq.    121,    138.     And   see    Morrison  Millard  w.  Truax,  73   Mich.  381,  41  N.  W. 

V.  M'Leod,  2  Ired.   Eq.  108  ;    Catterlin  v.  Rep.  328. 

Armstrong,   79  Ind.  514,    523;    Robertson  «  Bacon  i?.  Cottrell,  13  Minn.  194;  Had- 

V.  Read,  52  Ark.  381,  14  S.  W.  Rep.  387  ;  ley  v.  Stewart,  65  Wis.  481,  27  N.  W.  Rep. 

Jones  V.  Fletcher,  42  Ark.  422,  456;  Tatum  340. 

V.  McLellan,  56  Miss.  352.  s  Hicklin    v.    Marco,  46  Fed.  Rep.  424, 

1  Merriam  v.  Barton,  14  Vt.  501.  quoting  text ;  Gi'een  v.  Dixon,  9  Wis.  532  ; 

2  Holmesf.  Morse,  50  Me.  102;  Childs  u.  Green  v.  Wescott,  13  Wis.  606;  Bacon  v. 
Dolan,  5  Allen,  319.  Cottrell,  13  Minn.  194  ;  Barnard  i'.  Jennison, 

3  Hicklin  v.  Marco,  46  Fed.  Rep.  424,  27  Mich.  230;  Vanderhaise  v.  Hugues,  13 
quoting  text;  Miner  v.  Beekman,  50  N.  N.J.  Eq.  410;  Harper's  Appeal,  64  Pa.  St. 
Y.  337;  Putnam  v.  Ritchie,  6  Paige,  390;  315;  Freiclinecht  v.  Meyer,  39  N.  J.  Eq. 
Wetmore  v.  Roberts,  10  How.  Pr.  51  ;  Fo-  551. 

gall'.  Pirro,  17  Abb.  Pr.  113,  10  Bosw.  100;  6  McSorley   v.    Larissa,   100   Mass.   270; 

Benedict  v.  Oilman,  4  Pai<;e,  58  ;  Troost  v.  Mickles  v.  Dillaye,  17  N.  »Y.  80.     And  see 

Diivis,  31  Ind.  34;  Roberts  i-.  Fleming,  53  Miner   v.    Beekman,   50   N.    Y.   337,  345; 

111.  196,  198;  Gillis  v.  Martin,  2  Dev.  Eq.  Bright   v.  Boyd,  1   Story,  478;  Hicklin  v. 

470,  25  Am.  Dec.  729;  Poole  i'.  Johnson,  Marco,  46  Fed.  Rep.  424,  quoting  text. 

62  Iowa,  605,  17  N.  W.  Rep.  900;  Ameri-  ^  Poole  v.  Johnson,  62  Iowa,  611,  17  N. 

can  Button-Hole   Co.  v.  Burlington  Mut.  W.  Rep.  900. 
Loan  Asso.  68  Iowa,  326,  27  N.  W.  Rep.  271 ; 

88 


ALLOWANCES   FOR   REPAIRS   AND   IMPROVEMENTS.  [§  1129. 

The  mortgagee  may  also  be  allowed  for  permanent  improvements 
when  he  has  been  in  possession  for  a  long  period,  and  the  mortga- 
gor, knowing  that  the  improvements  were  going  on,  interposed  no 
objection, 1  But  it  is  doubted  whether  it  can  be  asserted  as  a  gen- 
eral rule  that  acquiescence  alone  would  make  the  mortgagor  charge- 
able with  unreasonable  improvements.^  The  mortgagor  would  be 
chargeable  with  improvements  which  he  asked  the  mortgagee  to 
make.3  And  when  he  is  allowed  for  tlie  improvements  he  is  charge- 
able with  the  rent  on  the  property  as  improved,  and  not  as  it  was 
exclusive  of  the  improvements.^ 

1129.  Allowance  for  repairs.  —  Though  not  bound  to  make  per- 
manent repairs,  it  is  quite  another  question  whether  the  mortgagee 
may  not  claim  an  allowance  for  proper  expenditures  for  permanent 
repairs  for  the  benefit  of  the  estate.^  The  rule  undoubtedly  is  that 
he  may  charge  the  cost  of  permanent  improvements  so  far  as  they  are 
necessary  and  beneficial  to  the  estate,*'  and  the  mortgagee  will  not 
be  held  to  prove  their  absolute  necessity."  The  value  of  the  im- 
provements to  the  property,  rather  than  their  cost,  is  the  true  basis 
of  the  allowance.  Mr.  Justice  Holmes  clearly  states  this  distinc- 
tion in  a  recent  case,  saying:  ^  "  When  the  allowance  is  made,  how- 
ever, it  is  made,  not  for  the  expenditure,  with  which  ex  hypothesi  the 
mortgagor  had  nothing  to  do,  but  for  the  benefit  which  he  actually 
receives  from  that  expenditure.  The  mortgagor's  having  actually 
received  the  benefit  is  the  only  ground  for  charging  him  ;  and  it  fol- 
lows that,  although  justice  will  ordinarily  be  done  by  crediting  the 
mortgagee  in  account  with  the  sums  expended,  which  is  tiie  usual 
direction  in  decrees,  and  is  sanctioned  by  our  statute,  yet  that  '  the 
true  rule  undoubtedly  is  that  the  mortgagor  should  be  charged  no 
more  of  the  cost  than  that  which  is  beneficial  to  the  estate.'  "  ^  All 
necessary  repairs  made  by  a  mortgagee  in  possession  should  be 
allowed  for  in  his  accounts. lo    The  fact  that  the  necessary  repairs  of 

1  Montgomery  v.  Chadwick,  7  Iowa,  114;  ^  Bollinger  v.  Chouteau,  20  Mo.  89. 
Roberts  v.  Fleming,  53  111.  196,  204;  Mor-  «  Boston  Iron  Co.  f.  King,  2  Cush.  400; 
gan  V.  Walbridge,  56  Vt.  405.  Reed  v.  Reed,  10  Pick.  398,  400  ;  Merriam 

2  Merriam  v.  Goss,  139  Mass.  77,  28  N.  E.  v.  Goss,  139  Mass.  77,  28  N.  E.  Rep.  449  ; 
Rep.  449.     In  England,  notice  given  by  the  Wells  v.  Van  Dyke,  109  Pa.  St.  330. 
mortgagee  to  the  mortgagor,  and  acquies-  "  Wells  v.  Van  Dyke,  109  Pa.  St.  330; 
cence  on  the  part  of  the  mortgiigor,  is  said  Harper's  Appeal,  64  Pa.  St.  315. 

to  render  unnecessary  an  inquiry  whether  ^  Merriam  v.  Goss,  139  Mass.  77,  28  N. 

the  expenditure  was  reasonable.     Shepard  E.  Rep.  449. 

V.  .Jones,  21  Ch.  Div.  469.  '•*  Reed  v.  Reed,  10  Pick.  398,  400  ;  Boston 

3  Brighton  v.  Doyle,  64  Vt.  616,  25  Atl.  Iron  Co.  v.  King,  2  Cush.  400,  405;  Gordon 
Rep.  694.  V.  Lewis,  2  Sum.  143  ;  Shepard  r.  Jones,  21 

*  Montgomery  v.  Chadwick,  7  Iowa,  114;     Ch.  Div.  463,  478. 
Dozier  v.  Mitchell,  65  Ala.  511.  i"  Sandon  v.  Hooper,  6  Beav.  246  ;  Nec- 

89 


§§  1130, 1131.]  mortgagee's  account. 

the  premises  exceed  in  cost  the  amount  of  the  rents  and  profits  is 
no  objection  to  their  allowance.^  Neither  is  there  any  objection  to 
an  allowance  for  repairs  of  such  sums  as  the  master,  in  stating  the 
account,  has  found  to  be  reasonable,  and  to  have  been  actually  paid, 
although  the  mortgagee  is  unable  to  give  dates  and  items  of  all  the 
repairs.^ 

But  repairs  which  are  demanded  merely  for  the  purpose  of  orna- 
ment or  comfort  wliile  the  mortgagee  himself  occupies  the  premises, 
and  are  not  of  any  substantial  benefit  to  the  realty,  will  not  be 
allowed.''^  And  so  also  charges  for  new  buildings  or  structures  which 
are  not  necessary  for  the  preservation  of  the  estate  should  not  be 
allowed.* 

Where  the  property  is  a  mill,  the  mortgagee  may  be  allowed  for 
improved  machinery  upon  proof  that  it  was  necessary  in  order  to 
run  the  mill  in  successful  competition  with  other  mills  which  con- 
tained similar  improved  machinery.^ 

1130.  If  the  mortgagee  so  intermingles  the  mortgaged  prop- 
erty with  his  own  that  it  is  impracticable  to  ascertain  how  much  of 
certain  charges  ought  to  be  borne  by  the  mortgaged  estate,  he  will 
not  be  allowed  anything  in  respect  of  such  charges.^ 

1131.  A  mortgagee  in  possession  of  a  church  edifice,  and  using 
it,  with  the  consent  of  the  mortgagor,  for  religious  services,  upon 
accounting  was  charged  with  the  actual  receipts  from  pew  rents, 
but  was  not  allowed  for  the  expenses  of  conducting  religious  ser- 
vices. There  seems  to  have  been  no  proof  offered  that  the  pew 
rents  were  paid  in  consideration  of  the  preaching,  the  music,  with 
the  adjuncts  of  light  and  warmth,  and  the  services  of  the  sexton  ; 
and  it  was  suggested  that  they  may  have  been  paid  for  the  privilege 
of  assembling  for  the  performance  of  religious  services,  and  for  the 
advantage  of  the  Sunday-school  and  the  lecture-room.  In  the  ab- 
sence of  proof,  it  was  held  that  there  was  no  presumption  that  the 
preaching,  the  music,  and  the  like,  were  the  consideration  for  which 
the  rents  were  paid,  and  that  the  mortgagee  should  be  charged  with 
all  the  pew  rents  received,  and  should  be  allowed  nothing  for  main- 
taining services."      But  upon  appeal  this  decision  was  reversed,  and 

som    V.    Clarkson,   4    Hare,   97 ;    Harper's        ^  Madison    Av.    Church    v.    Oliver   St. 

Appeiil,  64  Pa.  St.  315  ;  Adkins  v.  Lewis,  Church,  9  J.  &  Sp.  369. 

SOreg.  292;  Su-on>r.u.  Blanchard,  4  Allen,        *  Reed   v.   Reed,    10    Pick.  398;  Russell 

538;    Hosford    v.   Johnson,   74   Ind.   479;  ?;.  Blake,  2  Pick.  505;  Wells  y.  Van  Dyke, 

Johnson  v.  Hosford,  110  Ind.  572,  12  N.  E.  109  Pa.  St.  330. 

Rep.  522.  5  Wells  v.  Van  Djke,  109  Pa.  St.  330. 

1  Reed  r.  Reed,  10  Pick.  398.  ^  Elmer  v.  Loper,  25  N.  J.  Eq.  475. 

2  Montague  t'.  Boston  &  Albany  R.  R.  ^  Madison  Av.  Church  v.  Oliver  St. 
Co.  124  Mass.  242.  Church,  9  J.  &  Sp.  369,  420. 

90 


ALLOWANCE   FOR   COMPENSATION.  [§  1132. 

it  was  held  that  the  mortgagee  should  be  allowed  to  offset  against 
the  pew  rents  the  expenses  of  maintaining  and  keeping  up  the  church 
and  the  services  therein.^ 

IV.  Alloivanee  for  Compenmtion. 

1132.  A  mortgagee  in  possession  is  not  entitled  to  compen- 
sation for  his  own  trouble  in  taking  care  of  the  estate  and  renting 
it,  although  there  is  an  agreement  between  him  and  the  mortgagor 
that  he  shall  have  such  compensation.^  The  reason  given  for  this 
rule  is,  that  to  allow  such  compensation  would  tend  directly  to  facil- 
itate usury  and  oppression.^  And  moreover  the  care  he  bestows  is  for 
the  furtherance  and  protection  of  his  own  interests,  being  not  an 
agent,  but  for  the  time,  as  it  were,  the  owner.*  But  he  may  charge 
for  the  services  of  an  agent  employed  by  him  to  collect  rents,  when 
a  prudent  owner  acting  for  himself  would  probably  have  done  so.^ 

If  a  mortgagor  agrees  and  consents,  with  a  knowledge  of  all  the 
facts  and  circumstances,  to  disbursements  made  by  the  mortgagee 
in  possession,  these  are  to  be  deemed  reasonable  and  must  be  reim- 
bursed ;  and  the  fact  that  the  mortgagor  or  his  agent  agreed  to 
the  employment  by  the  mortgagee  for  a  time  of  a  person  to  take 
charge  of  the  mortgaged  estate,  at  a  certain  rate  of  compensation, 
is  competent  though  not  conclusive  evidence  that  the  same  com- 
pensation should  be  allowed  during  the  residue  of  the  term  of  the 
mortgagee's  possession.^ 

It  may  be  noticed  in  this  connection  that  in  the  early  cases  a 
mortgagee  in  possession  was  regarded  as  a  trustee,  who  was  not  then 
entitled  to  commissions.  This  rule  has  been  changed  as  regards 
trustees,  and  there  is  no  reason  why  it  should  be  retained  as  regards 
mortgagees  in  possession.  The  tendency  in  recent  cases  is  evidently 
in  the  direction  of  a  change  in  this  rule.'^ 

1  Madison  Av.  Church  v.  Oliver  St.  Dee.  342 ;  Turner  v.  Johnson,  95  Mo.  431, 
Church,  7.3  N.  Y.  82.  V  S.  W.  Rep.  570. 

2  French  v.  Baron,  2  Atk.  120;  Boni-  ^  Davis  r.  Dendy,  3  Madd.  170;  Harper 
thon  r.  Ilockmore,   1   Yern.  316;  Godfrey  i.  Ely,  70  111.  581. 

V.  Watson,  3  Atk.  517,  518;  Eaton  v.    Si-  «  Cazenove  v.  Cutler,  4  Met,  246. 

monds,  14  Pick.  98  ;  Clark  v.  Smith,  1  N.  J.  '  Green  v.  Lamb,  24  Hun,  87.     Learned, 

Eq.  121,  137;  Elmer  v.  Lopcr,  25  N.  J.  Eq.  P.  J.,  said:  "We  are  of  opinion   that  no 

475;  Moore  v.  Cable,   1    Johns.    Ch.  385,  fixed  rule  should  be  laid  down  which  would 

388  apply  to  every  case  where  there  is  the  legal 

3  Scott  y.  Brest,  2  T.  II.  238;  Turner  y.  relation  existing  between  mortgagee  in 
Johnson,  95  Mo.  431,  7  S.  W.  Kcp.  570,  6  pos!^ession  and  owner.  The  circumstances 
Am.  St.  Kcp.  62  ;  Allen  v.  Hobbiiis,  7  K.  I.  which  cause  the  relation  may  differ  widely, 
33;  Snow  v.  Warwick  Inst,  for  Sav.  17  R.  and  may  make  different  rules  as  to  comniis- 
I.  66,  20  All.  Rep.  94.  sions  just  and  proper." 

♦  Benham  v.  Rowe,  2  Cal.  387,  56  Am.        In   the  case  before  the  court  the  mort- 

91 


§§  1133,  1134.]  mortgagee's  account. 

1133.  In  Massachusetts,  as  a  general  rule,  the  mortgagee  in  pos- 
session is  allowed  as  compensation  for  managing  the  property  five 
per  cent,  of  the  rents  collected,  though,  if  it  were  found  that  the 
services  were  actually  worth  more,  the  rule  is  not  so  fixed  as  to  pre- 
vent a  further  allow^ance.^  Therefore  in  a  case  where  a  master,  in 
stating  an  account  between  the  mortgagor  and  mortgagee,  reported 
that  he  was  satisfied  that  such  commission  would  not  compensate 
the  mortgagee  for  his  trouble,  the  court  recommitted  the  report 
with  directions  to  allow' such  further  sum  ns  he  might  think  just  and 
reasonable.^  The  question  of  compensation  is  peculiarly'  within  the 
discretion  of  the  master  to  whom  the  bill  in  equity  is  referred  to 
state  the  account.^  But  the  mortgagee  cannot  usually  charge  a 
commission  on  the  amount  expended  in  i-epairs  and  improvements. 
In  Connecticut,  also,  a  mortgagee  in  possession  is  entitled  to  charge 
for  his  services  in  renting  them  and  collecting  rents,  and  for  such 
sums  as  were  necessarily  expended  to  obtain  possession  of  the  prop- 
erty.* 

In  determining  the  amount  of  compensation  to  be  made  to  the 
mortgagee,  reference  should  be  had  to  the  nature  and  condition  of 
the  property,  and  to  the  provisions  made  in  the  mortgage  itself  for 
such  compensation.^ 

V.  Allowances  for  Dishursemeiits. 

1134.  Taxes  paid  by  the  mortgagee  on  the  mortgaged  premises, 
either  before  or  after  he  has  taken  possession,  must  be  repaid  upon 
redemption.  Under  the  provisions  of  the  mortgage,  the  taxes, 
when  paid  by  him,  usually  become  a  lien  under  the  mortgage.^ 
But  even  when  this  is  not  the  case,  the  payment  being  made  to  pre- 
serve the  security,  he  is  entitled  to  recover  the  amount  paid,  and 
may  even  have  a  preference  to  this  extent  over  prior  incumbrancers 
whose  liens  the  payment  has  served  to  protect.'     The  same  is  true 

gagee  had  entered  with  the  consent  of  the  '^  Montague  v.  Boston  &  Albany  R.  R. 

mortgagor  before  default;  and  his  receipt  Co.  124  Mass.  242. 

of  the  rents  and  profits  was  partly  at  least  *  Waterman  v.  Curtis,  26  Conn.  241. 

to  pay  the  debt  owing   him.     It  was  ob-  ^  Boston  &  Worcester  R.  R.  Co.  f.  Haven, 

served  by  the  court  that  in  this  respect  the  8  Allen,  359. 

case   was    unlike   the  Mas.sachusetts   cases  «  §§  77,  1080 ;  Robinson  v.  Ryan,  2.'5  N. 

noticed  in  the  next  section,  where  the  entry  Y.  320  ;  Burr  v.   Veeder,   3    Wend.    412  ; 

was  either  for  the  purpose  of  foreclosure  or  Eagle  Fire  Ins.  Co.   v.  Pell,  2  Edw.  631 ; 

after  breach  of  the  condition.  Harper  v.  Ely,  70  111.  .581 ;  Strong  v.  Blan- 

1  Gerrish  v.  Black,  104  Mass.  400;  Gib-  chard,  4  Allen,  538;  Kilpatrick  v.  Henson, 
.son  V.  Crehore,  5  Pick.  146;  Tucker  r.  81  Ala.  464,  1  So.  Rep.  188,  193;  Miller  ?;. 
Buffum,  16  Pick.  46;  Montague  v.  Boston  Curry,  124  Ind.  48,  24  N.  E.  Rep.  219. 

&  Albany  R.  R.  Co.  124  Mass.  242.  "  §§  358,  1597;  Cook  v.  Kraft,  3  Lans. 

2  Adams  v.  Brown,  7  Cush.  220.  512;  Davis  v.  Bean,  114  Mass.  360;  Dozier 

92 


ALLOWANCES   FOR   DISBURSEMENTS.  [§  1134. 

of    any   assessment  made    by  authority   for    public   purposes,    and 
which  is  by  law  a  primary  lien  upon  the  property. ^ 

There  is  no  obligation  resting  upon-a  mortgagee  to  pay  the  taxes 
unless  he  be  in  possession  of  the  land  ;  and  he  is  not  therefore  re- 
sponsible to  the  mortgagor  for  the  loss  of  the  property  through  the 
non-payment  of  the  taxes.^  But  a  mortgagee  in  possession  who 
suffers  the  lands  to  be  sold  for  taxes  will  not  be  allowed  the  amount 
paid  b}^  him  to  redeem,  but  only  the  amount  of  the  taxes,  with  in- 
terest, for,  being  in  possession,  it  is  his  duty  to  see  that  the  taxes 
are  paid.^  Inasmuch  as  the  mortgagee  has  the  right  to  pay  the 
taxes  in  order  to  protect  his  mortgage,  his  purchase  at  the  tax  sale 
must  be  regarded  merely  as  such  payment,  and  not  as  giving  him 
a  title.*  The  mortg-asee  is  not  bound  to  take  the  risk  of  contest- 
ing  the  tax  titles.  He  may  buy  them,  if  he  can,  for  a  sum  exceed- 
ing the  amount  of  the  unpaid  taxes  and  interest,  though  for  less 
than  the  amount  of  the  statutory  penalties,  and  the  sum  so  paid  is 
chargeable  to  the  mortgagor.^ 

When  the  mortgagee,  instead  of  paying  the  taxes,  purchases  the 
land  at  a  tax  sale,  it  is  held  in  Michigan  that,  though  the  mortga- 
gor may  treat  such  purchase  as  a  payment,  the  right  so  to  treat  it 
is  the  right  of  the  mortgagor  only.  Against  the  mortgagor's  will 
the  mortgagee  cannot  claim  the  purchase  to  be  a  payment  in  his 
behalf.'' 

If  the  mortgagee  of  an  undivided  half  interest  pay  the  whole 
tax  levied  upon  the  land  in  order  to  preserve  his  lien,  he  can  charge 
against  the  mortgagor  only  half  the  amount  so  paid.' 

V.  Mitchell,  65  Ala.  51 1 ;  Dooley  v.  Potter,  146  Contra  in  Iowa  :  Savage  r.  Scott,  45  Iowa, 

Mass.  148,  15  N.  E.  Rep.  499;  Honigan  v.  130.     But  in  Bavthell  v.  Syverson,  54  Iowa, 

Wellmuth,  77  Mo.  542;  Sidenberg  v.  Ely,  160,  164,  6  N.  W.  Rep.  178,  it  is  remarked 

90  N.  Y.  257,  1 1  Abb.  N.  C.  354 ;  Young  v.  that  the  language  of  the  court  in  the  pre- 

Omohundro,  69  Md.  424,  16  Atl.  Rep.  120;  ceding  case  should  be  strictly  confined  to 

Millard  v.  Truax,  73  Mich.  381,  41  N.  W.  the  facts  of  that  case. 

Rep.  328 ;  Townsend  v.  Threshing  Macliine  ^  Dale  v.  M'Evers,  2  Cow.  118  ;  Rapclye 

Co.  31  Neb.  836, 48  N.  W.  Rep.  899  ;  South-  i'.  Prince,  4  Hill,  1 1 9,  40  Am.  Dec.  267. 

ard  V.  Dorrington,  10  Neb.  119,  4  N.  W.  Rep.  -  Harvie  v.  Banks,  1  Rand.  408. 

935;   Jack-^on  v.  Relf,  26  Fla.  465,  8  So.  ^  Moshier  y.  Norton,  100  III.  63. 

Rep.  184  ;  Gooch  v.  Botts,  110  Mo.  419,  20  *  Eck  v.  Swennenson,  73  Iowa,  523,  35 

S.  W.  Rep.  192.  N.  W.  Rep.  503. 

In  Michigan,  in  the  absence  of  statute  or  ^  Windett   v.   Union    Mut.    L.    Ins.   Co. 

special  agreement  between  the  parties,  the  144  U.  S.  581,  12  Su]).  Ct.  Rep.  751. 

assignee  of  a  mortgage  cannot  pay  ta.xes  or  «  Maxfield  v.  Willey,  46  Midi.  252,  9  N. 

incur  expenses  to  clear  the  land  from  tax  W.  Rep.  271  ;  Jones  i-.  Wells,  31  Mich.  170. 

liens  that  have  accrued  prior  to  the  execu-  This   distinction    seems   not    to   have  been 

tion  of  the  assignment,  and  have  the  amount  taken  elsewhere,  «nd  jjroliably  will  not  be. 

81)  jiaid  made  a  lien  ou  the  land.     Macomb  Broquet  v.  Sterling,  56  Iowa,  357,  9  N.  W. 

«.  PreutLs,    78    Mich.   255,  44   N.  VV.   Rep.  Rep.  301. 

324  ^   Weed  v.  Hornby,  35  Hun,  580. 


§§  1135,  1136.]  mortgagee's  account. 

Taxes  paid  by  a  mortgagee  on  land  not  covered  by  the  mortgage 
cannot  be  added  to  the  amount  of  the  mortgage  debt.^ 

1135.  Insurance  Premiums.  —  Where  it  is  part  of  the  contract 
of  the  mortgagor,  and  a  condition  of  the  mortgage,  that  he  shall 
keep  the  premises  insured  in  a  certain  sum  for  the  benefit  of  the 
mortgagee,  cliarges  for  premiums  paid  by  him  for  such  insurance, 
which  the  mortgagor  has  neglected  to  obtain,  or  pay  for,  are  allowed,- 
though  the  insurance  obtained  be  "  for  whom  it  may  concern,"  and 
payable  to  the  mortgagee.^  But  he  is  not  allowed  for  premiums 
paid  by  him  to  insure  his  own  interest  as  mortgagee  where  the 
amount  recovered  in  case  of  loss  would  go  to  him  for  his  sole  ben- 
efit without  extinguishing  the  mortgage  debt  pro  tanto.^  An  as- 
signee of  a  mortgage  containing  such  a  provision  for  insurance  has 
the  same  right  as  the  mortgagee  to  claim  allowance  upon  redemp- 
tion of  the  mortgage  for  sums  paid  for  insurance  while  the  mort- 
scagor  neglected  to  insure.^ 

Unless  there  be  a  provision  in  the  mortgage  for  insuring  the  prop- 
erty for  tlie  mortgagee's  benefit,  he  is  not  generally  allowed  for 
premiums  paid  by  him  for  such  insurance.^  When  there  is  such  a 
requirement,  premiums  for  insurance  taken  in  excess  of  the  amount 
stipulated  for  in  the  mortgage  will  not  be  allowed.'^ 

Insurance  procured  by  the  mortgagee  is  not  chargeable  to  the 
mortgagor,  unless  it  is  procured  at  his  request,  or  in  accordance 
with  a  provision  in  the  mortgage.^ 

1136.  The  amount  of  insurance  recovered  upon  a  policy  upon 
the  buildings  standing  upon  the  mortgaged  premises,  procured  by 
the  owner  at  his  own  expense  but  payable  to  the  mortgagee  in  case 
of  loss  in  pursuance  of  a  provision  of  the  mortgage,  must  be  ap- 
plied in  reduction  of  the  mortgage  debt  upon  redemption,  although 
the  insurance  company,  upon  paying  the  loss  to  the  mortgagee, 
take  from  him  ah  assignment  of  the  mortgage  and  policy.^ 

1  Crane  v.  Aultman-Taylor  Co.  61  Wis.  «  Faure   v.  Winans,  Ilopk.  283,  14  Am. 

110,  20  X.  W.  Rep.  110.  Dec.  545.     But  in  Slee  v.  Mauhattaii  Co.  1 

-  Harper   v.    Ely,    70  111.  5S1  ;    Carr  v.  Paige,  48,  81,  such  an  allowance  was  made 

Hodge,   130  Mass.  55.    Text  quoted  with  under   the   peculiar   circumstances   of    the 

approval    in  Husford  v.   Johnson,  74  Ind.  case. 

479;  Johnson   v.   Hosford,    110   Ind.  572;  ''  Madison    Av.    Church    v.    Oliver    St. 

Neale  v.  Albertson,  39  N.  J.  Eq.  382  ;  Amer-  Church,  9  J.  &  Sp.  369. 

ican  Button-Hole   Co.  v.  Burlington  Mut.  ^  Bellamy  v.  Brickenden,  2  John.  &  H. 

Loan  Asso.  68  Iowa,  326,  27  N.  W.  Rep.  137;  Uobson  v.  Land,  8  Hare,  216;  Boston 

271 ;  McCormick  v.  Knox,  105  U.  S.  122.  &  Worcester  R.  R.  v.  Haven,  8  Allen,  359; 

3  Fowley  v.  Palmer,  5  Gray,  549.  White  v.  Brown,  2  Cush.  412. 

*  Fowley  v.  Palmer,  5  Gray,  549.  ^  Graves   v.   Hampden   F.    Ins.    Co.    10 

6  Montague   v.  Boston  &  Albany  R.  R.  Allen,  281. 
Co.  124  Mass.  242. 

91 


ALLOWANCES   FOR   DISBURSEMENTS.         [§§  1137,  1138. 

1137.  A  mortgagee  in  possession  who  is  compelled  to  pay 
a  prior  mortgage,  judgment,  or  other  lien,  in  order  to  protect  his 
title,  has,  as  against  the  mortgagor  and  those  claiming  under  him,  a 
right  to  indemnify  himself  out  of  tlie  mortgaged  property. ^  And 
even  if  such  prior  mortgage  is  discharged  of  record  before  title 
accrued  to  the  person  seeking  to  redeem,  instead  of  an  assignment 
of  it  being  made  to  the  mortgagee  who  paid  it,  he  is  to  be  allowed 
for  the  sum  so  paid,  especially  if  it  appears  that  the  whole  amount 
claimed  by  the  mortgagee  is  less  than  what  appears  to  be  due  upon 
the  mortgage  by  the  record.^ 

A  mortgagee  who  has  advanced  money  to  protect  the  property 
from  injury  or  loss  is  held  to  have  a  good  charge  upon  the  prop- 
erty for  the  money  so  advanced.^  Monej^  paid  by  the  mortgagee 
to  protect  the  title  to  the  estate  from  prior  incumbrances  may  be 
added  by  him  to  the  principal  of  liis  claim,  and  he  is  entitled  to 
interest  upon  the  sum  so  paid.* 

A  mortgagee  of  an  undivided  interest  in  common  may  pay  the 
entire  expense  of  repairs  necessary  for  the  preservation  of  the  prop- 
erty, and  hold  the  mortgaged  property  for  his  reimbursement, 
though  the  share  of  the  expense  belonging  to  the  mortgagor's  co- 
tenant  to  pay  is  a  lien  upon  the  co-tenant's  interest.^ 

Where  the  employment  of  a  watchman  is  necessary  to  preserve 
the  property  from  destruction,  the  mortgagee  in  possession  is  en- 
titled to  charge  in  his  account  upon  redemption  the  amount  so 
paid.*" 

1138.  The  mortgagee  should  be  credited  for  reasonable  coun- 
sel fees  paid  in  collecting  rents  and  profits  ;  but  not  for  counsel  fees 
in  suits  between  the  mortgagee  and  mortgagor." 

A  mortgagee  who  has  paid  a  claim  upon  which  he  was  surety  of 
the  mortgagor,  and  which  the  mortgage  was  given  to  secure,  should 
be  allowed  the  whole  sum  paid,  although  he  has  afterwards  received 
contribution  from  a  co-security.^ 

1  Harper  ;;.  Ely,  70  111.  581;  Comstock  «  Godfrey  v.  Watson,  3  Atk.  .517,  518; 
V.  Michael,  17  Neb.  288,  22  N.  W.  Rep.  549;  Sandon  v.  Hooper,  3  Beav.  248;  Telly  v. 
Talbott  V.  Lancaster  (Ky.),  9  S.  W.  Rep.  Wathen,  7  Hare,  351,  373;  Davis  ;;.  Bean, 
694;  Page  v.  Foster,  7  N.  H.  392;  Arnold  114  Mass.  360. 

y.  Foot,  7  B.  Mon.66;  McCorniick  y.  Knox,  ''  Darling  v.  Harmon,  47  Minn.  166,49 

105  U.  S.  122;  Miller  v.  Curry,  124  Ind.  48,  N.  W.  Rep.  686. 

24  N.  E.  Rep.  219.  e  Johnson  v.  Hosford,  110  Ind.  572. 

2  Davis  V.  Winn,  2  Allen,  HI.  ^  Hubbard  v.  Shaw,  12  Allen,  120;  Bos- 
•J  Rowan    v.    Sharps'   Rifle   Manuf.    Co.  ton    &  Worcester   R.    R.  Co.  v.  Haven,  8 

29  Conn.  282;  Hughes  v.  Johnson,  38  Ark.     Alkn,  359;  Rowell  v.  Jewetl,  73   Me.  365. 
285.  8  Strong  v.  Blanchard,  4  Allen,  538. 

95 


§  1139.]  mortgagee's  account. 

VI.  Annual  Rests. 

1139.  Rule  for  annual  rests  in  stating  account.  —  Chief  Jus- 
tice Shaw,^  in  directing  that  an  account  be  reformed  by  making 
annual  rests,  laid  down  the  following  rule:  — 

"  1.  State  the  gross  rents  received  by  the  defendant  to  tlie  end  of 
the  first  year.  2.  State  the  sums  paid  by  him  for  repairs,  taxes, 
and  a  commission  for  collecting  the  rents,  and  deduct  the  same  from 
the  gross  rents,  and  the  balance  will  show  the  net  rents  to  the  end 
of  the  year.  3.  Compute  the  interest  on  the  note  for  one  year,  and 
add  it  to  the  principal,  and  the  aggregate  will  show  the  amount  due 
thereon  at  the  end  of  the  year.  4.  If  the  net  annual  rent  exceeds 
the  year's  interest  on  the  note,  deduct  that  rent  from  the  amount 
due,  and  the  balance  will  show  the  amount  remaining  due  at  the 
end  of  the  year.  5.  At  the  end  of  the  second  year  go  through  the 
same  process,  taking  the  amount  due  at  the  beginning  of  the  year 
as  the  new  capital  to  compute  the  year's  interest  upon.  So  to  the 
time  of  judgment." 

Statements  of  substantially  the  same  rule  have  frequently  been 
made.  The  two  essential  points  are :  First,  that  when  there  is  a 
surplus  of  receipts  in  any  year  above  the  interest  then  due,  a  rest 
shall  be  made,  and  the  balance  remaining  after  discharging  the 
interest  sliall  be  applied  to  reduce  the  principal,  so  that  the  mort- 
gage shall  not  continue  to  draw  interest  for  the  face  of  it,  when 
in  fact  the  mortgagee  has  in  his  hands  money  that  should  be  ap- 
plied to  reduce  the  principal,  and  thereby  make  the  interest  less  for 
the  following  year. 

Secondly,  although  the  amount  received  in  any  year  be  insuffi- 
cient to  pay  the  interest  accrued,  the  surplus  of  interest  must  not 
be  added  to  the  principal  to  swell  the  amount  on  which  interest 
shall  be  paid  for  the  following  year  ;  for  that  would  result  in  the 
charging  of  interest  upon  interest,  which  is  not  allowed  ;  but  the 
interest  continues  on  the  former  principal  until  the  receipts  ex- 
ceed the  interest  due.  These  are  the  principles  upon  which  the 
mortgagee's  interest  account  is  everywhere  made  up;  and  the  cases 
in  which  they  are  stated  are  many  and  in  general  accord.^ 

^  Van  Vronker  I'.  Eastman,  7  Met.  157.  Gratt.  27;    Moshier     v.    Norton,    100    111. 

2  Connecticut  v.  Jackson,  I  Johns.  Cli.  63;  Adams  v.   Sayre,  76  Ala.  .509,  quoting 

13,  17,  7  Am.  Dec.  471  ;  Stone  v.  Seymour,  text. 

15  Wend.  19,  24;  Jencks  v.  Alexander,  11  For  exceptional  cases  in    which   annual 

Paige,    619,    625  ;    French   v.   Kennedy,  7  rests  are  not  required,  see  Patch  v.  Wild, 

Barb.  452;  Bennett  v.  Cook,  5  Thomp.  &  30  Beav.  99  ;  Hoilock  v.  Smith,  1  Coll.  Ch. 

C.  134,  2  Hun,  526;  Suavely  v.  Pickle,  29  287. 
96 


ANNUAL   RESTS.  [§  1140. 

Except  for  the  first  part  of  the  rule,  that  if  the  annual  rents 
exceed  the  interest  on  the  mortgage  debt  annual  rests  shall  be  made 
and  interest  allowed  on  the  surplus,  great  injustice  would  be  done 
in  many  cases. ^  If,  for  instance,  the  debt  were  $5,000  and  the  rents 
should  be  in  excess  of  the  interest,  the  amount  of  $500  each  year, 
and  no  rests  were  made,  the  mortgagee  might  remain  in  possession 
ten  years,  with  the  entire  mortgage  debt  drawing  interest  all  the 
while  ;  when  in  fact  he  had  received  $500  of  the  principal  each 
year,  and  during  the  last  year,  while  only  $500  would  remain  due, 
he  would  receive  the  interest  of  ten  times  that  sum. 

1140.  If  the  rents  and  profits  exceed  the  sums  properly 
chargeable  for  repairs  and  the  care  of  the  estate,  so  that  there  is 
a  net  surplus  applicable  to  the  payment  of  interest  on  the  debt, 
annual  rests  in  the  computation  of  interest  should  be  made.^  Semi- 
annual rests  have  been  allowed  where  the  rents  and  profits  received 
quarterly  were  sufficient  to  pay  the  interest.^  But  if  there  be  no- 
thing received  from  the  property  that  is  applicable  from  time  to 
time  to  the  payment  of  the  accrued  interest,  no  rests  can  be  made.* 
Annual  rests  are  directed  when  the  mortgagee  is  personally  in  pos- 
session as  well  as  when  he  receives  rents  from  a  tenant.^ 

In  taking  the  account  between  the  mortgagee  and  mortgagor 
the  surplus  of  his  receipts  over  his  disbursements  should  be  ap- 
plied to  the  payment  of  the  interest  as  it  becomes  due  ;  and  if 
more  than  sufficient  for  that  purpose,  the  excess  should  be  credited 
on  the  principal. *"  If  in  any  year  his  disbursements  exceeded  his 
receipts,  the  amount  o£  the  deficit  should  be  added  to  the  prin- 
cipal of  the  debt.  Annual  rests  may  be  made,  so  that  the  mort- 
gagor may  be  charged  with  interest  for  disbursements  made  by 
the  mortgagee,  but  not  so  as  to  charge  the  debtor  with  compound 
interest  either  upon  the  mortgage  or  upon  the  advances.'  Accord- 
ing to  the  English  decisions,  if  there  is  interest  in  arrear  at  the 
time  the  mortgagee  takes  possession,  annual  rests  are  not  generally 

1  Green  v.  Wescott,  13  Wis.  GOG;  Shaef-  v.  Boston  &  Albany  R.  R.  Co.  124  Mass. 
fer  V.  Chambers,  6  N.  J.  Kc].  548;  Gordon     242. 

V.  Lewis,  2  Sumn.  143,  147;  Siiephard  v.  ^  Wilson  v.  Metcalfe,  1  Russ.  530;  Mor- 

EUiot,  4  Madd.  254  ;  Gibson  i'.  Creliore,  5  ris  v.  I.-lip,  20  Beav.  6S4. 

Pick.  146,  160  ;  Reed  v.  Reed,  10  Pick.  398.  6  Shephard  v.  Elliot,  4  Madd.  254  ;  Gould 

2  Gladding  v.  Warner,  36  Vt.  54;  Reed  v.  Tancred,  2  Atk.  533;  Mahone  v.  Wil- 
V.  Reed,  10  Pick.  398;  Green  v.  Wescott,  liams,  39  Ala.  202;  Elmer  v.  Loper,  25 
13  Wis.  606;  Blum  v.  Mitchell,  59  Ala.  N.  J.  Eq.  475;  Johnson  v.  Miller,  1  Wils. 
535.  (Ind.)416. 

3  Gibson  V.  Crehore,  5  Pick.  146,  IGO.  "^  Vanderhaise  v.  Ungues,  13  N.  J.  Eq. 
^  Reed  v.  Reed,  10  Pick.  398;  Montiigue    410;  Mosliicr  v.  Norton,  100  111.  63. 

VOL.  II,  7  97 


§  1141.]  mortgagee's  account. 

required  until  the  interest  in  arrear  is  paid  off,^  or  even  until  the 
whole  mortgage  debt  has  been  paid  off.^  But  the  better  rule  is, 
that  any  surplus  of  receipts  in  any  year,  above  all  the  interest 
then  due  and  disbursements,  should  be  applied  in  reduction  of  the 
principal,  irrespective  of  the  fact  that  there  was  interest  in  arrear 
at  the  time  the  mortgagee  took  possession.^ 

1141.  As  to  the  rate  of  interest,  the  contract  of  the  parties  will 
govern  after  default  as  well  as  before.  If  the  rate  reserved  in  the 
mortgage  be  less  than  the  legal  rate,  it  will  continue  at  that  rate 
until  paid.*  If,  on  the  other  hand,  that  rate  be  in  excess  of  the 
rate  allowed  upon  judgments  and  upon  contracts  when  the  parties 
have  not  fixed  upon  a  different  rate,  it  will  continue  at  the  same 
rate  after  default  until  the  debt  be  paid  or  merged  in  a  judgment. 
The  rule  upon  this  point,  however,  is  not  uniform  in  the  different 
States  ;  but  the  rule  above  stated  has  the  support  of  the  weight  of 
authority,  and  best  accords  with  the  intention  of  the  parties,  and 
with  the  principles  of  equity  that  govern  the  enforcement  and  re- 
demption of  mortgages.^  But  even  where  the  rule  is  that  after 
maturity  the  legal  rate  of  interest  governs  instead  of  the  contract 
rate,  it  is  conceded  that  if  the  parties  have  by  their  contract  shown 
with  sufficient  clearness  their  intention  that  tlie  stipulated  rate  is  to 
continue  after  maturity,  then  that  rate  will  govern  up  to  the  time 
of  judgment.^     Of  course,  if  in  either  case  the  debt  be  merged  in 

1  Wilson  V.  Cluer,  3  Beav.  136,  1-10.  620 ;  Keene  v.  Kcene,  3  C.  B.  (K  S.)  144 ; 

2  Latter  v.  Dashwood,  6  Sim.  462  ;  Finch  Gordillo  v.  Wcguelin,  5  Ch.  D.  287,  303. 
V.  Brown,  3  Beav.  70.  See,  also,  Morris  v.  See,  however.  Cook  v.  Fowler,  L.  E.  7  H. 
Islip,  20  Beav.  659 ;  Thorueycroft  ;•.  Crock.  L.  27,  where  one  reason  for  not  allowing 
ett,  2  H.  L.  C.  233 ;  Horlock  v.  Smith,  1  the  stipulated  rate  of  interest,  which  is  five 
Coll.  Ch.  287.  per  cent,  per  month,  was  that  it  was  so  ex- 

3  Moshier  v.  Norton,  100  111.  63,  73.  cessive;  and  In  re  Iloberts,  14  Ch.  D.  49, 
*  §  74 ;  Miller   r.   Burroughs,  4   Johns,    which  was  decided  without  referring  to  the 

Ch.  436.  previous    decisions,  upon    the   assumption 

^  Union  Institution  for  Savings  v.  Bos-  that  there  was  no  precedent  for  giving  more 

ton,  129  Mass.  82,  95,  37  Am.  Rep.  305,  per  than  the  ordinary  or  legal  rate  of  interest 

Gray,  C.  J.,  who  in  an  able  and  elaborate  by  way  of  damages.     California  :  Corcoran 

opinion   reviews   the    whole    subject.     See  v.   Doll,  32   Cal.  82 ;   Gity  v.  Franklin,   5 

§  74.  Cal.  416;  Kohler  v.  Smith,  2  Cal.  597,  56 

6  Brewster  v.  Wakefield,  22   How.   118;  Am.   Dec.    369.     Connecticut:   Adams    v. 

Holden  v.  Trust  Co.  100  U.  S.  72;  Pearce  Way,  33  Conn.  419;  Beckwith  v.  Hartford, 

V.  Hennessy,  10  R.  I.  223,  227 ;  Capen  v.  Prov.  &  Fishkill  R.  R.  29  Conn.  268,  76 

Crowell,  66  Me.  282 ;  Paine  v.  Caswell,  68  Am.  Dec.  599  ;  Hubbard  v.  Callahan,   42 

Me.  80,  28  Am.  Rep.  21  ;  Gray  w.  Briscoe,  6  Conn.  524,   537,   19   Am.   Rep.  564;  Sey- 

Bush,  687  ;  Young  v.  Thompson,  2  Kans.  83.  mour  v.  Continental  Ins.  Co.  44  Conn.  300, 

That  the  stipulated  rate  of  interest  con-  26  Am.  Rep.  469 ;   Suffield  Eccl.    Soc.   v. 

tinues  after  default  is  the  rule  in  :  —  Loomis,  42  Conn.  570,  575.    Illinois  :  Etnyre 

England :  Price  v.  Great  Eastern  Ry.  Co.  v.  McDaniel,  28  111.  201 ;  Heartt  v.  Rhodes, 

15M.  &W.  244;  Morgan  u.  Jones,  8  Exch.  66  111.  351;  Phinney  v.  Baldwin,  16  111. 
98 


ANNUAL   RESTS. 


[§  nn. 


a  judgment,  the  rate  established  by  law  for  all  cases  when  interest 
is  implied  will  thereafter  govern. ^ 

Where  coupons  have  been  given  for  the  interest  on  the  mort- 
gage debt,  they  draw  interest  after  maturity  in  the  same  manner 
as  do  notes  for  the  principal.  They  provide  for  the  payment  of 
definite  sums  of  money  at  definite  times,  and  are  in  effect  promis- 
sory notes.^ 

Upon  the  redemption  of  a  mortgage  the  mortgagor  is  not  obliged, 
to  pay  compound  interest,  though  the  mortgage  note  may  in  terms 


108,  61  Am.  Dec.  62.  Indiana :  Kilgore  v. 
Powers,  5  BlacUf.  22  ;  Richards  v.  McPher- 
sou,  74  Ind.  158;  Burns  v.  Anderson,  68 
lud.  202,  34  Am.  Rep.  259,  overruling 
Kilgore  v.  Powers,  5  Blackf.  22.  Iowa : 
Hand  v.  Armstrong,  18  Iowa,  324  ;  Thomp- 
son V.  Pickel,  20  Iowa,  490.  Kansas  :  Rob- 
inson V.  Kinne}',  2  Kans.  184;  Searle  v. 
Adams,  3  Kans.  515,  89  Am.  Dec.  598. 
Kentucky  :  Rilling  v.  Tiiompson,  12  Bush, 
310.  Maine:  Duran  v.  Ayer,  67  Me.  145; 
Eaton  V.  Boissonault,  67  Me.  540,  24  Am. 
Rep.  52.  Maryland  :  Virginia  v.  Chesa- 
peai^e  &  Ohio  Canal  Co.  32  Md.  501. 
Massacliusetts  :  Union  Inst,  for  Savings  v. 
Boston,  129  Mass.  82,  37  Am.  Rep.  305 ; 
Brannon  v.  Hursell,  112  Mass.  63;  Bur- 
gess V.  Southridge  Sav.  Bank,  2  Fed.  Rep. 
500.  Michigan :  Warner  v.  Juif,  38  Mich. 
662.  Minnesota :  Lash  i\  Lambert,  15  I\Iinn. 
416,  2  Am.  Rep.  142.  Nevada:  McLane  v. 
Abrams,  2  Nev.  199.  New  Jersey  :  Wilson 
V.  iMarsh,  13  N.  J.  Eq.  289.  New  York: 
Miller  v.  Burroughs,  4  Johns.  Ch.  436 ;  Van 
Beuren  v.  Van  Gaasbeck,  4  Cow.  496. 
Later  cases  left  the  question  an  open  one. 
Bell  V.  Mayor,  10  Paige,  49 ;  Hamilton  v. 
Van  Rensselaer,  43  N.  Y.  244;  Ritter  v. 
Phillips,  53  N.  Y.  586.  Under  a  stipula- 
tion to  pay  interest  at  seven  per  cent,  until 
paid,  interest  will  continue  at  that  rate 
after  maturity  up  to  the  time  of  judgment. 
Taylor  v.  Wing,  84  N.  Y.  471,  477.  But 
where  a  mortgage  is  given  to  secure  a  sum 
payable  in  regular  instalments,  the  sums 
remaining  unjjaid  from  time  to  time  to  bear 
seven  per  cent,  interest,  if  an  instalment  is 
not  paid  when  due,  interest  thereafter  on 
such  instalment  can  only  be  recovered  at 
the  legal  rate.  If  an  instalment  was  not 
paid  when  due,  the  contract  was  violated, 
and  interest  after  that  upon  such  instal- 
ment could  only  be  recovered  as  damages, 


and  at  the  rate  of  interest  authorized  by  law. 
Bennett  v.  Bates,  94  N.  Y.  354;  O'Brien  v. 
Young,  95  N.  Y.  428  ;  Ferris  v.  Hard,  135 
N.  Y.  354,  32  N.  E.  Rep.  129.  This 
seems  to  wholly  change  the  former  rule. 
Ohio:  Marietta  Iron  Works  v.  Lottimer> 
25  Ohio  St.  621  ;  Monnctt  v.  Sturgcs,  25 
Ohio  St.  384.  Pennsylvania:  Ludwick  7j. 
Huntzinger,  5  W.  &  S.  51.  Rhode  Island  : 
Pearce  v.  Hennessy,  10  R.  I.  223.  South 
Carolina :  Langston  v.  S.  C.  R.  R.  2  S.  C.  248. 
Tennessee :  Overton  v.  Bolton,  9  Heisk. 
762,  24  Am.  Rep.  367.  Texas  :  Hopkins  v. 
Crittenden,  10  Tex.  189.  Virginia:  Cecil 
V.  Hicks,  29  Gratt.  1,  26  Am.  Rep.  391. 
"Wisconsin:  Pruyn  v.  Milwaukee,  18  Wis. 
367. 

On  the  other  hand,  the  rule,  that  after 
maturity  interest  by  way  of  damages  will 
be  allowed  only  at  the  ordinary  legal  rate, 
prevails  in  the  United  States  Supreme 
Court.  Brewster  v.  Wakefield,  22  How. 
118;  Burnhisel  v.  Firman,  22  WaU.  170; 
Holden  v.  Trust  Co.  100  U.  S.  72.  But 
the  local  law  to  the  contrary  in  any  State 
will  be  followed  in  a  case  coming  to  the 
court  from  that  State.  Cromwell  v.  County 
of  Sac.  96  U.  S.  514;  Burgess  v.  South- 
bridge  Sav.  Bank,  2  Fed.  Rep.  500.  Fee 
Jones  on  Corp.  Bonds  and  Mortgages, 
§  260,  for  remarks  about  this  and  other 
cases  upon  this  point. 

Arkansas:  Newton  v.  Kennerly,  31  Ark. 
626  ;  Johnson  v.  Meyer,  54  Ark.  457,  16  S. 
W.  Rep.  121. 

As  to  the  rule  in  New  York  see  this  note 
above. 

1  Taylor  v.  Wing,  84  N.  Y.  471. 

'  Gelpcke  v.  Dubuqun,  1  Wall.  175,  206; 
Hollingsworth  v.  Detroit,  3  McLean,  472; 
Harper  v.  Ely,  70  111.  581  ;  Dunlap  v.  Wise- 
man, 2  Disney,  398.  See  Jones  on  Corp. 
Bonds  and  Mortgages,  §  256. 

99 


§§  1142, 1143.]  mortgagee's  account. 

require  it.^  If  the  mortgage  be  assigned  after  the  taking  of  pos- 
session, no  rest  in  the  computation  of  interest  at  that  time,  by  add- 
ing the  interest  then  due  to  the  principal,  should  be  made.^ 

1142.  The  account  binds  subsequent  incumbrancers,  though 
not  privy  to  the  taking  of  it,  unless  there  be  fraud  or  collusion. 
This  is  the  case  even  with  accounts  settled  between  the  mortgagor 
and  mortgagee  out  of  court." 

1143.  An  account  may  be  opened  for  fraud  or  a  particular  error 
even  after  a  long  lapse  of  time.*  The  fraud  or  error  must  be  par- 
ticularly alleged ;  a  general  charge  being  sufficiently  answered  by  a 
general  denial.^ 

1  Parkhurst  v.  Cummings,  56  Me.  155;        »  Wrixon  v.  Vize,  2  Dru.  &  War.  192; 
Stone  V.  Locke,  46  Me.  445.     See,  however,    Knight  v.  Banipfeild,  1  Vern.  179. 
Millard  v.  Truax,  73  Mich.  381,  41  N.  W.        *  Vernon  v.  Vawdry,  2  Atk.  119. 

Rep.  328.  ^  Drew  v.  Power,  1  Sch.  &  Lef.  182,  192  ; 

2  Boston  Iron  Co.  v.  King,  2  Cush.  400.       Kinsman  v.  Barker,  14  Ves.  579. 

100 


CHAPTER   XXIV. 


WHEN    THE   RIGHT   TO   REDEEM   IS   BARRED. 


I.  The  statute   of  limitations  applies  by 
analogy, 1144-1151. 
II.  When  the  statute  begins  to  run,  1152- 
1161. 


III.  What  prevents  the  running  of  the  stat- 
ute, 1162-1173. 


I.   The  Statute  of  Limitations  applies  hy  Analogy. 

1144.  In  general,  except  when  changed  by  modern  statutes,  the 
rule  adopted  by  courts  of  equity  in  regard  to  the  redemption  of 
mortgages  is  in  analogy  with  the  right  of  entry  at  law,  under  the 
old  statute  of  limitations,  21  Jac.  1,  ch.  16,  that  twenty  years'  pos- 
session by  the  mortgagee  without  any  account  or  acknowledgment 
of  a  subsisting  mortgage  is  a  bar,  unless  the  mortgagor  is  within 
some  of  the  exceptions  made  for  disabilities.^  "  Otherwise,"  said 
Lord  Hardwicke,  "  it  would  make  property  very  precarious,  and 
a  mortgagee  would  be  no  more  than  a  bailiff  to  the  mortgagor, 
and  subject  to  an  account,  which  would  be  a  great  hardship."  ^     In 


^  England :  Barron  v.  ISIartin,  19  Ves. 
327,  and  cases  cited;  Blake  v.  Foster,  2 
Ball  &  B.  387,  402  ;  Johnson  r.  Mounsey, 
40  L.  T.  N.  S.  234,  7  Reporter,  701.  United 
States:  Amory  v.  Lawrence,  3  Cliff.  523; 
Slicer  v.  Bank  of  Pittsburg,  16  How.  571  ; 
Hughes  V.  Edwards,  9  Wheat.  489 ;  Dexter 
V.  Arnold,  1  Sumn.  109.  Alabama :  Gunn 
V.  Brantley,  21  Ala.  633 ;  Coyle  v.  Wil- 
kins,  57  Ala.  100;  Byrd  v.  McDaniel,  33 
Ala.  18  ;  Goodwyn  v.  Baldwin,  59  Ala.  127. 
Arkansas  :  Hall  v.  Denckla,  28  Ark.  506. 
Illinois:  Ilallesy  v.  Jackson,  66  111.  139; 
Locke  y.  Caldwell,  91  III.  417;  Jack.son  v. 
Lynch,  129  111.  72,  21  N.  E.  Rep.  580. 
Iowa  :  .Crawford  v.  Taylor,  42  Iowa,  260 ; 
Montgomery  v.  Chad  wick,  7  Iowa,  114. 
Maine:  Phillips  v.  Sinclair,  20  Me.  209; 
Randall  v.  Bradley,  65  Me.  43 ;  IJlctlion  v. 
Dwinal,  35  Me.  556  ;  Roberts  v.  Litllefichl, 
48  Me.  61  ;  McPherson  v.  II  ay  ward,  HI  Me. 
329,  17  Atl.  Rep.  164.  Massachusetts: 
Ayrcs   v.  Waite,    10    Cush.    72;    Ilowland 


V.  Shurtleff,  2  Met.  26,  35  Am.  Dec.  384 
Michigan :  Cook  v.  Finkler,  9  Mich.  131 
Hoffman  v.  Harrington,  33  Mich.  392.  Mis 
souri :  McNair  v.  Lot,  34  Mo.  285,  84  Am 
Dec.  78;  Bollinger  v.  Chouteau,  20  Mo.  89 
New  Hampshire  :  Clark  v.  Clough,  65  N.  H 
43,  23  Atl.  Rep.  526  ;  Grant  v.  Fowler,  39  N 
H.  101, 104 ;  Forest  v.  Jackson,  56  N.  H.  357, 
362 ;  Green  v.  Cross,  45  N.  H.  584.  New 
Jersey:  Bates  v.  Conrow,  11  N.  J.  Eq.  137. 
New  York  :  Wood  v.  Baker,  14  N.  Y.  Supp. 
821  ;  Demarest  v.  Wynkoop,  3  Johns.  Ch. 
129,  8  Am.  Dec.  467,  where  Chancellor 
Kent  cites  many  cases;  Moore  v.  Cable,  1 
Johns.  Ch.  385 ;  Sice  v.  Manhattan  Co.  I 
Paige,  48.  North  Carolina:  Bailey  v.  Car- 
ter, 7  Ired.  Eq.  282.  Ohio :  Clark  v.  Pot- 
ter, 32  Ohio  St.  49.  Virginia :  Ross  v. 
Norvell,  1  Wash.  14,  17,  1  Am.  Dec.  422; 
Wisconsin :  Rogan  v.  Walker,  1  Wis.  527  ; 
Knowlton  v.  Walker,  13  Wis.  264. 
2  Anon.  3  Alk.  313. 

101 


§  1145.]  WHEN   THE   RIGHT   TO   REDEEM   IS   BARRED. 

analogy  to  the  same  statute  the  same  exceptions  are  made  for  dis- 
abilities, and  ten  years  allowed  after  their  removal  within  which 
the  right  may  be  asserted,  at  the  expiration  of  which  time  the  bar 
is  complete.^ 

The  right  of  the  mortgagor  to  redeem  being  an  equitable  and 
not  a  legal  right,  the  statute  of  limitations  does  not  strictly  consti- 
tute a  bar  to  a  bill  to  redeem  ;  but  equity  adopts  the  statutory 
period  of  twenty  years  after  forfeiture  and  possession  taken  by  the 
mortgagee,  beyond  which  the  mortgagor  shall  not  be  allowed  to 
redeem  if  he  has  paid  no  interest  in  the  mean  time.  Such  lapse  of 
time  affords  evidence  of  a  presumption  that  the  mortgagor  has 
abandoned  his  right.^  But  no  lapse  of  time  less  than  twenty  years 
is  a  sufficient  answer  to  the  mortgagor's  bill  to  redeem  where  that 
is  the  time  necessary  to  bar  real  actions ;  ^  and  that  is  not  a  conclu- 
sive and  absolute  bar,  but  only  affords  a  presumption  of  fact,  which 
may  be  controlled  by  evidence.* 

After  the  mortgagee  has  remained  in  possession  for  twenty  yearns 
without  accounting,  or  in  any  way  acknowledging  the  right  of 
redemption  in  the  mortgagor,  the  latter  cannot  redeem.^  The  pos- 
session of  the  mortgagee  must  be  unequivocally  adverse  to  the  mort- 
gagor or  person  entitled  to  the  equity  of  redemption.  The  fact 
that  he  entered  with  the  consent  of  the  owner  makes  his  possession 
none  the  less  adverse,  unless  in  return  he  assumed  some  obligation 
to  the  owner. 

If  the  mortgagor  was  under  disability,  the  time  of  his  disabil- 
ity is  to  be  deducted,  though  he  cannot  avail  himself  of  succes- 
sive disabilities.^  In  analogy  with  the  statute  of  limitations  of 
Jac.  1,  and  generally  adopted  in  this  country,  ten  years  is  allowed 
after  the  removal  of  the  disability  within  which  to  bring  the 
action.'^ 

1145.  The  time  conforms  to  the  statute  in  force.  In  those 
States,  however,  in  which  the  time  of  limitation  within  which  a 
recovery  of  land  may  be  had  has  been  changed  by  statute  to  a 
period  longer  or  shorter  than  twenty  years,  following  the  analogy 
of  those  statutes  the  time  within  which  the  mortgagor  may  redeem 

1  Beckford  v.  Wade,  17  Ves.  87,  99  ;  Jen-        *  Ayres  v.  Waite,  10  Cush.  72. 

ner  v.  Tracy,  3  P.  Wms.  287,  n. ;  Belch  v.  ^  Demarest  v.   Wynkoop,  3   Johns.   Ch. 

Harvey,  3  P.  Wms.  287,  n. ;  White  i>.  Ewer,  129,  8  Am.  Dec.  467;  Jackson  v.  Voorhis, 

2  Vent.  340;  Price  v.  Copner,  1  S.  &  S.  347.  9  Johns.  129  ;  Stevens  v.  Dedhara  Institu- 

2  Robinson  v.  Fife,  3  Ohio  St.  551.  tion  for  Savings,  129  Mass.  547. 

3  Amory  v.  Lawrence,  3  Cliff.  523.  For  6  Demarest  v.  Wynkoop,  3  Johns.  Ch. 
a  brief  statement  of  the  limitation  of  real  129,  8  Am.  Dec.  4G7. 

actions  in  the  several  States,  see  chapter        "^  And  see  Lamar  v.  Jones,  3  Har.  &  M. 
XXVI.  §  1193.  328. 

102 


STATUTE    OF   LIMITATIONS   APPLIES   BY    ANALOGY.      [§  1145. 

from  the  mortgagee  in  possession  will  be  the  same ;  as,  for  instance, 
the  statute  of  limitations  in  Connecticut  prescribing  fifteen  years 
as  the  period  beyond  which  an  entry  shall  not  be  made,  a  mort- 
gagor is  there  barred  by  the  lapse  of  this  period  during  which  the 
mortgage  title  has  not  been  recognized  by  the  mortgagee  in  pos- 
session.^ In  a  few  States  special  statutes  have  been  enacted  with 
reference  to  the  redemption  of  mortgages,  and  a  synopsis  of  these 
statutes,  and  of  the  English  statute  upon  which  they  are  founded  as 
well,  is  given  in  a  note.^ 

The  time  for  redemption  from  a  mortgage  is  fixed  by  the  laws  in 
force  at  the  time  the  mortgage  is  given,  and  cannot  be  extended  by 
subsequent  legislation.-^ 


1  Jarvis  v.  Woodruff,  22  Conn.  548 ; 
Skinner  v.  Smith,  1  Day,  124;  Crittenden 
V.  Braiuard,  2  Root,  485 ;  Fox  v.  Blossom, 
17  Blatchf.  352;  Byrd  v.  McDaniel,  33 
Ala.  18;  Coyle  v.  Wilkins,  57  Ala.  lOS ; 
Dawson  v.  Hoyle,  58  Ala.  44;  Askew  v. 
Sanders,  84  Ala.  356,  4  So.  Rep.  167. 

-  California:  An  action  to  redeem  a  mort- 
gage of  real  property  is  barred  after  an 
adverse  possession  of  the  mortgaged  prem- 
ises for  five  years  after  breach  of  some  con- 
dition of  the  mortgage.  Civil  Code  of  Pro- 
cedure, §§  346,  347.  Under  this  statute  an 
action  to  redeem,  where  the  mortgagee  is  in 
possession,  may  be  brought  at  any  time, 
provided  there  shall  not  have  been  an  ad- 
verse possession  for  five  years.  Raynor  i'. 
Drew,  72  Cal.  307,  13  Pac.  Rep.  866; 
Warder  v.  Enslen,  73  Cal.  291,  14  Pac.  Rep. 
874;  Cohen  v.  Mitchell,  9  Pac.  Rep.  649. 
The  right  to  redeem  is  unaffected  by  the 
running  of  the  statute  of  limitations  against 
the  principal  debt.  Hall  v.  Arnott,  80  Cal. 
348,  22  Pac.  Rep.  200;  Raynor  v.  Drew, 
72  Cal.  307,  13  Pac.  Rep.  866.  Kentucky: 
After  a  mortgagee  of  real  property,  or  any 
person  claiming  under  him,  has  had  fifteen 
years'  continued  adverse  possession,  no  ac- 
tion shall  be  brought  by  the  mortgagor,  or 
any  one  claiming  under  him,  to  redeem  it. 
G.  S.  1 888,  ch.  7 1 ,  art.  i v.  §  1 6.  Mississippi : 
When  a  mortgagee,  after  a  forfeiture  of 
the  mortgage,  has  obtained  actual  posses- 
sion, or  receipt  of  the  profits  or  rent  of  the 
land  mortgaged,  the  moitgagor,  or  any  per- 
son claiming  through  liim,  shall  not  bring 
suit  to  redeem  but  within  ten  years  next 
after  the  time  at  which  the  mortgagee  ob- 
tained such  possession  or  receipt,  unless  in 


the  mean  time  an  acknowledgment  shall 
have  been  made  in  writing  signed  by  the 
mortgagee  or  the  person  claiming  under 
him.  R.  C.  1880,  §  2666;  Annot.  Code 
1891,  §  2732.  New  Jersey:  If  a  mortgagee 
and  those  under  him  be  in  possession  of  the 
lands  contained  in  the  mortgage,  or  any  part 
thereof,  for  twenty  years  after  default  of 
payment  by  the  mortgagor,  then  the  right 
or  equity  of  redemption  is  forever  barred. 
Rev.  1877,  p.  507.  North  Carolina:  An 
action  for  the  redemption  of  a  mortgage 
where  the  mortgagee  has  been  in  possession, 
or  for  a  residuary  interest  under  a  deed  of 
trust  for  creditors  where  the  trustee,  or  those 
holding  under  him,  has  been  in  possession, 
must  be  brought  within  ten  years  after  the 
right  of  action  accrued.  Battle's  Revisal 
1873,  p.  149  ;  Code  Civ.  Pro.  1891,  §  152.  A 
presumption  of  abandonment  of  this  right 
arises  within  ten  years  after  forfeiture. 
Houck  V.  Adams,  98  N.  C.  519,  4  S.  E.  Rep. 
502.  Utah  T.  :  Seven  years  after  breach  of 
the  condition.  2  Comp.  Laws  1888,  §3152. 
Washington :  Under  §  33  of  the  Code  1881, 
G.  S.  1891,  §  120,  the  action  must  be  brought 
within  two  years.  Parker  v.  Dacres,  2 
Wash.  T.  439.  For  the  statute  in  New 
York,  see  §  1147. 

See  the  English  Statute  of  3  &  4  Will.  IV. 
ch.  27,  §  28,  providing  for  bringing  the  action 
within  twenty  years  after  the  mortgagee  ob- 
tained possession  or  receipt  of  profits.  The 
Real  Property  Limitation  Act  1874,  §  7, 
which  went  into  operation  on  and  after  Jan- 
uary 1,  1879,  makes  the  period  of  limitation 
twelve  years  instead  of  twentij. 

3  Allen  V.  Allen,  95  Cal.  184,  27  Pac.  Rep. 
30;  Phinneyi;.  Phinncy,  81  Me.  450;  Bron- 
103 


§§  1146,  1147.]       WHEN    THE    RIGHT    TO    REDEEM    IS   BARRED. 

1146.  The  right  to  foreclose  and  the  right  to  redeem  are  re- 
ciprocal.^ Since  the  rights  of  the  mortgagor  and  mortgagee  are 
reciprocal  and  commensurable,  redemption  under  the  mortgage  is 
cut  off  at  the  expiration  of  the  same  time  that  the  right  to  fore- 
close is  barred.^  In  accordance  with  this  maxim,  it  is  held  in  Cali- 
fornia that  in  case  the  debt  is  foreclosed  in  four  years  the  right  to 
ledeem  is  barred  by  the  lapse  of  the  same  period.^  In  Iowa,  also, 
an  action  to  redeem  is  barred  in  ten  years,  the  same  time  in  which 
an  action  at  law  for  the  debt  secured  would  be  barred.*  The  same 
application  of  the  principle  is  made  in  Minnesota,  where,  in  analogy 
to  a  statute  specially  providing  that  an  action  to  foreclose  shall  be 
commenced  within  ten  years  after  the  cause  of  action  accrues,  re- 
demption must  be  made  within  the  same  time.^  Of  course  this 
principle  cannot  be  applied  where  by  statute,  or  by  operation  of 
judicial  construction  of  the  statute,  a  different  time  is  fixed  for  re- 
demption from  that  allowed  for  foreclosure,  as  in  Wisconsin. 

1147.  The  right  of  redemption  in  New  York  w^as  formerly 
barred  in  ten  years.  It  was  held  that  inasmuch  as  the  statute  of 
limitations,  so  far  as  it  limits  the  recovery  of  the  possession  of  real 
property  to  twenty  years,  did  not  apply  to  cases  of  which  a  court  of 
equity  had  peculiar  and  exclusive  jurisdiction,  an  action  by  a  mort- 
gagor for  redemption  or  for  an  accounting  and  recovery  of  posses- 
sion against  a  mortgagee  in  possession  came  within  the  provision  of 
the  statute  limiting  the  time  for  the  comn\encement  of  actions  not 
otherwise  specified,  and  was  thereby  limited  to  ten  years  from  the 

son  V.  Kinzie,  1   How.   311,  316;  "Walker  of  land   in   California.     After   the    mort- 

V.  Whitehead,  16  Wall.  314.  gagee's  right  to  sue  for  the  money  loaned 

1  Long  V.  Long  (Mo.),  19  S.  W.  Rep.  was  barred  in  New  York,  the  mortgagor 
537  ;  Green  i-.  Cross,  45  N.  H.  584.  sued  in  California  to  redeem.     It  was  held 

2  King  V.  Meighen,  20  Minn.  264  ;  Cauf-  that,  as  the  right  of  action  for  the  loan  was 
man  v.  Sayre,  2  B.  Mon.  202  ;  Koch  v.  barred  in  New  York,  a  suit  to  foreclose  the 
Briggs,  14Cal.  2*6,  73  Am.  Dec.  651  ;  Grat-  mortgage  was  barred  in  California.  The 
tan  I'.  "Wiggins,  23  Cal.  16,  34;  Cunning-  contract  was  governed  by  the  laws  of  New 
ham  V.  Hawkins,  24  Cal.  403,  410,  85  Am.  York,  but  the  effect  of  the  deed  by  the 
Dec.  73 ;  Arrington  v.  Liscom,  34  Cal.  365,  laws  of  California.  Allen  v.  Allen,  95 
372,  94  Am.  Dec.  722;  Lord  v.  Morris,  18  Cal.  184,  27  Pac.  Eep.  30,  30  Tac.  Rep. 
Cal.  482;  Allen    r.  Allen,   95  Cal.   184,   27  213. 

Pac.    Rep.  30,   30  Pac.   Rep.  213  ;    Green  *  Smith  v.  Foster,  44  Iowa,  442  ;  Craw- 

V.  Turner,  38  Iowa,  112,  116;    Haskell  v.  ford  v.   Taylor,  42   Iowa,  260;   Gower   v. 

Bailey,  22  Conn.  569 ;  Locke  v.   Caldwell,  Winchester,  33  Iowa,  303 ;  Albee  u.  Curtis, 

91  111.  417  ;  Jackson  v.  Lynch,  129  III.  72,  77  Iowa,  644,  42  N.  W.  Rep.  508. 

21  N.  E.  Rep.  580.     Otherwise  in  Alabama:  ^  Holion  v.  Meighen,   15  Minn.  69,  80; 

§  1192.  King   i;.   Meighen,  20   Minn.  264 ;  Parsons 

3  Cunningham  v.  Hawkins,  24  Cal.  403,  v.  Noggle,  23  Minn.  328  ;  Fisk  v.  Stewart, 
410,  85  Am.  Dec.  73;  Arrington  v.  Liscom,  26  ]\Iinn.365;  Rogers  v.  Benton,  39  Minn. 
34  Cal.  365.  A  mortgage  was  made  in  39,  38  N.  W.  Rep.  765,  12  Am.  St.  Rep. 
New  York,  between  persons  residing  there,  613. 

104 


STATUTE    OF    LIMITATIONS    APPLIES   BY   ANALOGY.       [§§  1148,  1149. 

time  the  right  of  action  accrues.^     To  a  similar  statute  in  Wiscon- 
sin the  same  construction  is  given. ^ 

But  in  the  new  Code  of  New  York  it  is  expressly  provided  that 
tlie  right  of  redemption  may  be  maintained  by  the  mortgagor  or 
those  claiming  under  him  against  the  mortgagee  in  possession  or 
those  claiming  under  him,  unless  he  or  they  have  continuously  main- 
tained adverse  possession  for  twenty  years  after  breach  of  the  con- 
dition.^ 

1148.  In  Tennessee  it  is  held  that  the  statute  of  limitations  does 
not  apply  to  a  bill  in  equity  to  redeem  a  mortgage,  because' redemp- 
tion can  only  be  enforced  in  equity,  and  the  statute  does  not  apply 
to  cases  belonging  to  the  exclusive  jurisdiction  of  courts  of  equity. 
"  But  although  equity  does  not  permit  the  statute  of  limitations  to 
be  pleaded  to  the  relief  which  it  affords  to  the  right  of  redemption, 
yet,  in  the  application  of  that  relief,  it  regards  time  and  vliscoun- 
tenances  stale  demands."  *  The  court  would  doubtless  adopt  the 
period  of  twenty  years  as  affording  a  presumption  of  right  in  the 
mortgagee,  after  analogy  of  the  statute  of  limitations.^  The  pos- 
session of  the  mortgagee  is  consistent  with  the  right  of  the  mort- 
gagor, unless  it  be  continued  long  enough  to  afford  such  a  presump- 
tion, which  a  shorter  period  than  twenty  years  would  not  give. 
But  if  the  mortgagee  purchase  an  outstanding  title,  and  hold  it 
adversely  to  the  mortgagor  with  his  knowledge,  the  statute  which 
makes  seven  years'  adverse  possession  a  bar  to  an  action  to  recover 
will  run  in  the  mortgagee's  favor,  and  will  perfect  the  title  in 
him.'^ 

1149.  The  mortgagee's  possession  must  be  unequivocally 
adverse  during  the  whole  period,"  and  therefore  if,  at  the  time  of 

1  4  Kent  Com.  p.  188;  Hubbell  v.  Sib-  the  court,  in  affirming  the  doctrine  laid 
ley,  50  N.  Y.  468,  affirming  5  Lans.  51 ;  down  in  Overton  v.  Bigelow,  say  :  "  In 
Miner  v.  Beekman,  50  N.  Y.  .337,  14  Abb.  those  States  of  the  Union  where  the  time 
Pr.  N.  S.  1 ;  Tibbs  v.  Morris,  44  Barb,  fixed  by  the  statute  of  limitations  is  twenty 
138,  146;  Peabody  v.  Roberts,  47  Barb.  91,  years,  the  courts  of  equity  have  taken  the 
102;  Cleveland  v.  Boerum,  24  N.  Y.  613,  same  time  'as  the  presumption  of  right' in 
617.  a   mortgagee.     But   we   know  of  no  case, 

^  Cleveland   Ins.   Co.  v.  Reed,  24  How.  either   in   this   State  or  any  of  the  other 

284,  1    Biss.  180;  Knowlton  u.  Walker,  13  States  where  the  statute  of  limitations  is 

Wis.  264.  for   a  shorter   period,    that  the   courts   of 

2  Code  of  Civ.  Procedure  1890,  §  379.  equity  have  reduced  the  time  within  which 
The  construction  of  the  former  statute,  a  mortgage  may  be  redeemed  to  that 
though  conclusively  established  by  the  de-  period." 

cisions,  was  regarded  as  being  contrary  to  ^  Gudger  v.  Barnes,  4  Ileisk.  570;  Wal- 

tlie  intent  of  the  legislature,  and  to  the  gen-  len  v.  Huff,  5  Humph.  91,  94. 

eral  7>oiicy  of  the  law.  7  Simmons  v.  Ballard,  102  N.  C.  105,9 

*  Overton  y.  Bigelow,  3  Yerg.  513.  S.  E.  Rep.  495;   Mcl'her.son  v.  Ilayward, 

5  In  Yarbrough  v.  Newell,  10  Yerg.  376,  81  Me.  329,  17  Atl.  Rep.  164. 

105 


§§  1150,  1151.]      WHEN    THE   RIGHT   TO   REDEEM   IS    BARRED. 

his  entry,  he  is  entitled  to  an  interest  in  the  equity  of  redemption, 
or  if  he  subsequently  acquires  such  an  interest,  as,  for  instance,  a 
tenancy  for  life,  he  loses  the  benefit  of  the  statute.^  ThiQe  will  not 
run  in  his  favor  so  long  as  his  interest  in  the  equity  of  redemption 
continues. 

1150.  The  mortgagee's  possession,  when  adverse,  operates 
equally  against  a  married  woman  who  has  made  the  morto-aoe. 
She  is  in  no  way  protected  by  her  coverture  from  the  effect  of  the 
adverse  possession  of  the  mortgagee.  The  adverse  possession  is 
against  the  equitable  right  of  the  mortgagor  to  redeem,  and  the 
limitation  is  an  equitable  one  in  analogy  to  the  statute  of  limita- 
tions at  law  ;  and  it  is  regarded  as  equitable  that  a  wife  should  lose 
her  right  in  equity  to  redeem  when  there  has  been  such  a  lapse  of 
time  as  would  in  equity  bar  any  other  mortgagor.  The  privileges 
and  exei^iptions  of  married  women  should  be  curtailed  as  their  sep- 
arate rights  in  regard  to  their  property  are  recognized.  Having 
voluntarily  placed  herself  in  the  position  of  a  mortgagor,  she  must 
accept  the  usual  incidents  of  the  position,  and  her  equitable  right  to 
redeem  is  lost  when  there  has  been  such  a  lapse  of  time  as  would 
bar  the  right  of  any  other  mortgagor.^ 

1151.  Successive  disabilities  of  mortgagor.  —  To  entitle  the 
mortgagor  to  the  benefit  of  a  disability,  it  must  be  one  that  existed 
at  the  time  the  right  to  redeem  first  accrued  ;  and  though  if  several 
disabilities  existed  together,  the  statute  does  not  begin  to  run  until 
the  party  entitled  to  redeem  has  survived  all  of  them,  yet  succes- 
sive or  cumulative  disabilities  are  not  allowed.  "  If  disability  could 
be  added  to  disability,"  says  Chancellor  Kent,  "  claims  might  be 
protracted  to  an  indefinite  extent;  "  ^  and  he  quotes  an  expression 
of  Lord  Eldon,  that  "a  right  might  travel  through  minorities  for 
two  centuries." 

If  the  statute  has  once  begun  to  run  against  the  mortgagor,  it  is 
not  suspended  or  interrupted  by  his  death  and  the  infancy  of  his 
heirs  at  that  time.* 

1  Hjde  t'.  Dallaway,  2  Hare,  528;  Raf-  thirty  years  under  Stat.  37  &  38  Vict.  ch.  57. 
fety  V.  King,  1  Keen,  601.  Much  doubt  had  been  entertained  as  to  the 

2  Hanford  v.  Fitch,  41  Conn.  486.  effect  of   successive  disabihties   under   the 

3  Demarest  v.  Wynkoop,  3  Johns.  Ch.  former  statute  until  the  case  of  Borrows 
129,  139,  8  Am.  Dec.  467,  and  numerous  v.  Ellison,  L.  R.  6  Ex.  128,  where  it  was 
cases  cited.  decided  that,  when  the  causes  of  disability 

The  disabilities  of  the  mortgagee  which  overlap,  the  disability  continues  subject  to 

may   give   him  an   extension   of   time  are  the  extreme  limitation  provided, 
limited  by  the  English  statute   to  the  ex-        •*  Frederick  v.  Williams,  103  N.  C.  189,  9 

treme  period  of  forty  years  in  all,  under  S.  E.  Rep.  298. 
Stat.  3  &  4  Wm.  IV.  ch.  27,  §§  16, 17,  and  to 
106 


WHEN   THE    STATUTE   BEGINS    TO   RUN.        [§§  1152,  1153. 

II.    Wlie7i  the  Statute  begins  to  run. 

1152.  So  long  as  the  relation  of  mortgagor  and  mortgagee 
exists  the  statute  does  not  commence  to  run  in  favor  of  either  the 
mortgagor  or  the  mortgagee.^  That  rehition  must  be  terminated 
in  some  way  before  either  party  in  possession  can  interpose  the 
statute  as  a  defence  against  the  other.  As  against  the  mort^ao-or 
this  rehition  is  generally  terminated  when  the  mortgagee,  after  a 
breach  of  the  condition,  enters  and  holds  possession  of  the  mort- 
gaged property .2  Such  possession,  whether  it  be  for  the  purpose  of 
receiving  the  rents  and  profits,  or  for  the  purpose  of  foreclosure,^ 
or  for  the  purpose  of  wresting  the  property  from  the  mortgagor,  is 
equally  effectual.  When,  however,  by  the  terms  of  the  mortgage, 
or  by  subsequent  agreement,  the  mortgagee  is  to  take  and  hold 
possession  of  the  property  until  he  shall  satisfy  his  claim  from  the 
rents  and  profits,  his  possession  does  not  become  adverse  until  his 
demand  has  been  satisfied  from  this  source,  or  he  asserts  an  ab- 
solute title  in  himself,  and  gives  distinct  notice  of  it  to  the  mort- 
gagor.4  The  right  of  redemption  is  not  lost  by  lapse  of  time  when 
the  mortgagor  remains  in  possession  for  himself  and  not  for  the 
mortgagee.^ 

1153.  As  to  a  "Welsh  mortgage.  —  A  mortgage  containing  such 
an  agreement  is  in  the  nature  of  a  Welsh  mortgage,  and  from  the 
very  nature  of  the  agreement  it  is  constantly  renewed  by  the  re- 
ceipt of  the  rents  and  profits  in  payment  of  interest  or  in  discharge 
of  the  debt.  The  mortgagee's  possession  is  of  the  essence  of  the 
contract;  he  holds  the  estate  subject  to  perpetual  account.^  Time 
will  not  bar  the  mortgagor,  unless  the  mortgagee  disclaims  the 
mortgage  and  gives  him  notice  in  effect  that  he  holds  in  defiance  of 
his  title  ;  or  a  sufficient  length  of  time  to  constitute  a  bar  has 
elapsed  since  the  principal  and  interest  of  the  mortgage  has  been  paid 
from  the  rents  and  profits.''     The  mortgagor  could  in  equity,  doubt- 

1  Waldo  y.  Rice,  14  Wis.  286;  Green  v.  457;  Frink  ?;.  Le  Roy,  49  Cal.  314;  Warder 

Turner,  38  Iowa,    112,  118;  Crawford   v.  v.  Enslen,  73  Cal.  291,  14  Pac.  Rep.  874; 

Taylor,  42  Iowa,  260.     And  see  Humphrey  Quint  v.  Little,  4  Me.  495;  ]McPherson  v. 

0.  Hard,  29  Mich.  44 ;  Rockwell  v.  Servant,  Hay  ward,  81  Me.  329,  17  Atl.  Rep.  164. 

54  HI.  251 ;  Babcock  v.  Wyman,  19  How.  5  gird  v.  Keller,  77  Me.  270. 

289,  aflSrming  Wyman  V.  Babcock,  2  Curtis,  ^  j'^.n^ick    v.   Reed,    1  Mer.    114;0rde 

386.  V,  Ileminfr,  1  Vern.  418;  Balfe  v.  Lord,  2 

-  Steven.s  r.  Dedham  Institution  for  Sav-  Dr.  &   War.  480;  Morgan  v.   Morgan,  10 

ings,  129  Mass.  547.  Ga.  297;  Marks  v.  Pell,  1  Johns.  Ch.  594. 

^  Montgomery  w.  Chadwick,  7  Iowa,  114  ;  So  under   an   arrangement  for   repayment 

Bailey  v.  Carter,  7  Ired.  Eq.  282.  by  annuities.     Teulon  v.  Curtis,  1  Younge, 

*  Auding  V.  Davis,  38  Miss.  574,  77  Am.  610. 

Dec.  658  ;  Kohllieim  i-.  Harrison,  34  Miss.  ''  Yates  v.  Hambly,  2  Atk.  360;  Longuet 

107 


§§  1154-1156.]       WHEN   THE   RIGHT   TO   REDEEM   IS   BARRED. 

less,  compel  an  account,  which  would  show  when  the  mortgage  was 
paid.i 

1154.  The  mortgagee's  possession  runs  against  those  enti- 
tled to  the  estate  in  remainder  as  well  as  against  the  tenant  for 
life  ;  and  if  his  possession  has  continued  for  twenty  years  before  the 
title  of  the  remainder-man  accrued,  the  bar  is  as  effectual  against 
him  as  it  was  against  the  life-tenant,  who  had  the  immediate  right 
to  redeem  during  the  whole  period  of  his  possession.^  The  rule  is 
the  same  in  case  the  tenancy  during  the  possession  was  by  the  cur- 
tesy,^  or  b}^  right  of  dower.* 

1155.  If  the  mortgagor  retains  possession  of  a  part  of  the 
mortgaged  premises,  though  the  mortgagee  be  in  possession  of  the 
remainder,  no  lapse  of  time  will  bar  the  right  of  redemption  of 
the  entire  estate.^  The  right  existing  as  to  any  part,  it  must  exist 
as  to  the  whole,  for  as  a  general  rule  there  can  be  no  redemption  of 
separate  parts.  If  the  mortgagor  has  constructive  possession,  as  when 
the  mortgagee  has  entered  under  a  lease,  or  an  agreement  amount- 
ing equitably  to  a  lease,  the  statute  will  not  begin  to  run  against 
the  right  of  redemption  until  the  mortgagee  ceases  to  hold  under 
such  lease.^ 

It  may  happen,  ho^|Vever,  that  a  part  of  an  estate  may  become 
irredeemable  while  redemption  is  not  lost  as  to  the  residue.^ 

1156.  The  cause  of  action  accrues  when  the  mortgagee  en- 
ters into  possession,  not  when  the  money  secured  by  the  mort- 
gage becomes  due.^  Until  then  the  plaintiff  has  no  occasion  for 
this  remedy  to  regain  possession.  The  possession  may  be  explained, 
so  that  it  is  not  so  much  the  possession  itself  as  the  nature  of  it 
that  operates  as  a  bar  to  the  right  to  redeem  ;  but  the  presumption 
is  that  the  possession  is  adverse  after  an  entry  upon  a  default  in  the 
mortgage.    When  the  mortgagee  has  entered,  not  as  mortgagee  only, 

V.   Scawen,  1  Ves.  Sen.  402;   Alderson  v.  '  Lake  v.  Thomas,  3  Ves.  Jun.  17. 
White,  2  De  G.  &  J.  97;  Talbot  v.  Brad-  ^  Hubbell  v.  Sibley,  50  N.  Y.  468;  Pea- 
dill,   1   Vern.   394;    Lawley   v.  Hooper,  3  body   v.  Roberts,   47  Barb.   91;   Miner   v. 
Atk.  278,  280;  Fenwick  v.   Reed,  1   Mer.  Beekman,  50  N.  Y.  337,  14  Abb.  Pr.  N.  S. 
114.  1;    Knowlton    v.   Walker,    13    Wis.    264; 

1  Fulthorpe  v.  Foster,  1  Vern.  477.  Waldo  v.  Rice,  14  Wis.  286. 

2  Harrison  v.  Hollins,  1  S.  &  S.  471  ;  In  Miner  v.  Beekman,  50  N.  Y.  337,  it 
Ashton  V.  Milne,  6  Sim.  369;  Dallas  t-.  was  suggested  that  perhaps  the  cause  of 
Floyd,  6  Sim.  379.  action  does  not  accrue  so  long  as  the  mort- 

^  Anon.  2  Atk.  333.  gagee  continues  in  possession  avowedly  as 

*  Lockwood  V.  Lockwood,  1  Day,  295.  mortgagee,  without  claiming  in  fee  or  by 

5  Burke  v.  Lynch,  2  Ball  &  B.  426 ;  any  other  title ;  but  as  in  that  case  the 
Rakestraw  v.  Brewer,  Sel.  Cas.  in  Ch.  56.  mortgagee  claimed  by  a  foreclosure  title, 

6  Archbold  v.  Scully,  9  H.  L.  360  ;  Drum-  there  was  no  occasion  for  deciding  this 
mend  V.  Sant,  L.  R.  6  Q.  B.  763.  point. 

108 


WHEN    THE    STATUTE    BEGINS    TO   RUN.  [§  1157. 

but  by  virtue  of  having  a  limited  interest  in  the  equity  of  redemp- 
tion, as,  for  instance,  a  life  estate,  it  is  held  that  time  will  not  run 
in  his  favor  during  the  continuance  of  that  interest,  for  it  would  be 
his  duty  to  keep  down  the  interest  on  his  mortgage  in  favor  of  the 
remainder-men.  1 

As  against  the  owner  of  the  equity  of  redemption,  the  statute 
does  not  begin  to  run  until  the  mortgagee  takes  actual  and  open 
possession  of  the  mortgaged  premises  ;  and  it  does  not  begin  then 
if  he  holds  merely  under  his  mortgage  title  and  recognizes  the 
mortgagor's  right  of  redemption. ^ 

An  action  by  a  widow  to  redeem  from  a  foreclosure,  had  in  the 
husband's  lifetime,  to  which  she  was  not  a  party,  of  a  mortgage 
given  by  the  husband  alone  for  the  purchase-price  of  land,  is  not 
barred  until  the  lapse  of  the  statutory  period  after  the  death  of  the 
husband,  for  her  right  to  redeem  did  not  come  into  existence  until 
the  death  of  the  husband.'^ 

1157.  After  twenty  years'  possession  by  the  mortgagee  it 
lies  "with  the  mortgagor  to  show  that  the  effect  is  not  a  bar 
of  his  right  of  redemption.  The  onus  lies  on  the  mortgagor  to 
show  that  fact,  in  order  to  defeat  the  effect  of  the  possession.^ 
The  presumption  is  that  the  right  of  redemption  is  gone  after  the 
mortgagee's  possession  has  continued  for  this  period  of  time.  But 
any  act  done  or  acknowledgment  made  by  him  in  the  mean  time, 
evincing  his  recognition  of  the  mortgage  as  such,  may  be  offered  to 
repel  this  presumption.  Although  possession  by  the  mortgagee  has 
continued  long  enough  to  give  him  presumptive  title,  the  nature 
of  his  possession  is  what  really  determines  the  rights  of  the  parties, 
and  a  great  variety  of  facts  and  circumstances  may  be  adduced  to 
show  it  is  by  virtue  of  the  mortgage  only,  and  consequently  does 
not  bar  the  right  to  redeem.^ 

A  bill  to  redeem  which  shows  that  the  mortgagee  has  been  in 
possession  for  twenty  years  or  more  must  distinctly  aver  the  grounds 
upon  which  the  possession  does  not  constitute  a  bar.  Twenty  years' 
possession  under  a  de  facto  foreclosure  is  a  bar  to  redemption,  though 
the  proceedings  were  irregular,  unless  the  mortgagor  shows  circum- 
stances which  repel  the  presumption  of  title  in  the  mortgagee.'^     A 

1  Story's    Eq.    Jur.    §    1028;    Reeve    v.        ^  Bair    r.  Vaiialstine,  120    Ind.  590,  22 
Hicks,    2  S.    &   S.  403  ;  Eaffety   v.  King,    N.  E.  Kep.  965. 

1   Keen,  601,  618;  Seagram  v.   Knight,  L.  *  Per  Sir  Wm.  Grant  in  Barron  i-.  Mar- 

R.  2  Ch.  App.  628,    632,  per  Chelmsford,  tin,  19  Ves.  326. 

L.  C.  ^  Robinson  v.  Fife,  3  Ohio  St.  551. 

2  Knowlton    i;.    Walker,    13    Wis.    264;  *^  Sliccr  i-.  Bank  of  Pittsburg,  16  How. 
Waldo  V.  Rice,  14  Wis.  286.  571  ;  Brobst  v.  Brock,  10  Wall.  519. 

109 


§  1158.]  WHEN  THE   BIGHT   TO   REDEEM  IS  BARRED. 

bill  brought  thirty-four  years  after  the  maturity  of  the  mortgage, 
which  averred  that  the  mortgagee's  possession  was  not  continuous 
and  adverse  for  the  period  of  twenty  years,  but  did  not  aver  that 
the  possession  was  taken  within  that  period,  <and  gave  no  excuse  for 
the  delay  in  bringing  the  bill,  was  dismissed,  because  the  averments 
were  too  uncertain  to  found  a  right  to  redeem  upon.^ 

1158.  Mere  constructive  possession  by  the  mortgagee  for 
twenty  years  will  not  raise  a  presumption  that  the  title  has  be- 
come absolute  in  him ;  and  the  fact  that  the  mortgaged  premises 
were  wild,  uncleared  lands  will  not  avail  a  mortgagee  as  against 
the  mortgagor,  although  the  former  has  the  legal  title,  and  the 
courts  have  adopted  a  rule  as  to  such  lands  that  the  possession 
follows  the  right ;  for  the  purpose  of  the  rule  is  to  protect  the 
owner  of  such  lands  from  intrusion  and  trespass.-  Nothing  short 
of  actual  possession  by  the  mortgagee,  continued  for  the  time 
required  by  statute,  without  accounting  or  admitting  that  he  is 
merely  a  mortgagee,  but  under  a  claim  of  absolute  ownership, 
will  avail  to  convert  his  mortgage  title  into  a  title  absolute  in 
equity.^  Payment  of  taxes  on  wild  land  will  not  avail.*  An  oc- 
casional occupation  of  the  premises  will  not  avail.  The  occupation 
must  be  a  continuous  and  notorious  one,  adverse  to  the  right  to 
redeem.^ 

But  where  the  premises  consist  of  a  farm,  part  of  which  is  im- 
proved and  has  a  house  upon  it,  and  the  possession  of  the  whole 
is  so  far  adverse  as  to  cause  the  time  to  commence  running  against 
the  right  to  redeem,  a  temporary  interruption  of  the  actual  resi- 
dence of  the  mortgagee  upon  the  land,  caused  by  the  destruc- 
tion of  the  house,  will  not  prevent  the  statute  from  continuing 
to  run,  if  the  mortgagee  continues  to  exercise  all  such  acts  of  own- 
ership and  dominion  as  the  natux-e  of  the  land  and  its  condition 
admits  of.^ 

Where  after  the  death  of  the  mortgagor  his  widow  paid  the  mort- 
gage debt  and  inventoried  the  land  as  that  of  her  husband,  and 
occupied  the  premises  as  a  homestead,  the  widow's  possession  was 
held  not  to  be  adverse  as  against  the  heir,  and  laches  in  redeeming 
was  not  imputable.' 

1  Tleynolds  v.  Green,  10  Mich.  355.  Dec.  467 ;  McPherson  i-.  Hayward,  81  Me. 

2  Moore  v.  Cable,  1  Johns.  Ch.  385,  387 ;    329,  17  Atl.  Rep.  164. 

Slee  V.  Manhattan  Co.  1  Paige,  48 ;  Locke  *  Bollinger    v.    Chouteau,   20    Mo.    89 ; 

V.  Caldwell,  91  111.  417.  Locke  v.  Caldwell,  91  111.  417. 

3  Miner  v.  Beekman,  50  N.  Y.  337 ;  De-  =  Humphrey  v.  Hurd,  29  Mich.  44. 
marest  v.  Wynkoop,  3  Johns.  Ch.  129,  8  Am.  6  ciark  v.  Potter,  32  Ohio  St.  49. 


7  Hunter  v.  Dennis,  112  111.  568. 


110 


WHEN   THE   STATUTE   BEGINS   TO   RUN.  [§  1159. 

A  conveyance  by  the  mortgagee  purporting  to  give  an  absolute 
title  to  the  mortgaged  property  does  not  work  a  disseisin  of  the 
mortgagor,  but  passes  only  the  mortgage  title.^  •  Nor  does  an  ab- 
solute conveyance  of  a  portion  of  the  mortgaged  premises  by  the 
mortgagor  while  the  mortgagee  is  in  possession  disseise  him  or 
interrupt  his  possession.^  But  if  for  twenty  years  the  mortgagor 
has  paid  neither  principal  nor  interest,  and  there  have  been  no 
dealings  between  him  and  the  mortgagee,  there  is  presumptive  evi- 
dence of  foreclosure.^ 

1159.  After  a  mortgagee  in  possession  has  received  pay- 
ment of  the  debt,  he  really  holds  the  property  in  trust  for  the 
mortgagor,  and  the  statute  of  limitations  will  not  run  in  his  favor 
until  by  some  further  act  he  shows  that  his  possession  and  claim 
have  become  adverse.  This  rule  is  equally  applicable  to  the  case 
of  an  absolute  deed  given  to  secure  a  debt  and  treated  by  the  law 
as  a  mo^-fcgage.*  The  statute  does  not  begin  to  run  against  the 
right  to  redeem  such  a  mortgage  until  a  tender  and  refusal  of 
the  money  secured  by  it ;  ^  or  at  least  until  the  mortgagee  denies 
the  right  of  the  mortgagor  to  redeem  and  the  mortgagor  has  actual 
notice  of  such  denial,  or  of  the  mortgagee's  adverse  holding,  as  in 
cases  where  the  mortgagee  has  entered  under  an  agreement  to  ac- 
count for  the  rents.^ 

The  possession  of  a  mortgagee  after  he  has  received  payment 
of  the  debt  will  not  be  regarded  as  a  holding  adversely  to  the 
mortgagor,  unless  some  act  other  than  mere  possession  under  the 
mortgage  be   shown  to  establish  the  adverse  character  of  his  pos- 

1  Humphrey  v.  Hurd,  29  Mich.  44;  Dex-  without  a  recognition  of  the  mortgage  title, 
ter  V.  Arnold,  2  Sumn.  108  ;  Daniels  v.  or  any  account  kept  upon  the  footing  of  it, 
Mowry,  1  R.  I.  151.  becomes   a  subject  of  equitable  bar  to  re- 

2  "  Possession  in  the  mortgagee  must  at  demption,  notwithstanding  a  clear  title  to 
its  commencement  have  been  taken  under  redemption  in  the  one  party,  and  on  the 
the  engagement,  which  equity  always  im-  other  a  continued  misapplication  of  the 
plies,  to  account  as  a  bailiff  for  the  rents  rents  and  profits  of  the  estate  committed  to 
and  profits  with  the  mortgagor,  and  to  his  care,  contrary  to  his  engagement,  and  a 
apply  them  to  the  discharge  of  the  mort-  continued  breach  of  duty,  from  the  begin- 
gage  debt.  If  this  be  not  punctually  and  ning  to  the  end  of  the  period,  in  omitting 
regularly  done,  and  the  account  fairly  and  to  keep  the  account."  Cholmondeley  v. 
properly  kept  by  the  mortgagee,  it  is  a  vio-  Clinton,  2  Jac.  &  W.  187,  per  Sir  Thomas 
lation    of   the  implied   engagement   under  Plumer,  Master  of  the  Rolls. 

which  he  holds  the  possession.     The  posses-  ^  jjurd   v.    Coleman,  42   Me.   182  ;  Ble- 

sion  is  all  along  consistent  with  the  equi-  then  v.   Dwinal,   35    Me.   556 ;    Phillips  v. 

table  title  of  the  mortgagor,  who  may  be  Sinclair,  20  Me.  269. 

disabled  by  poverty  and  distress  to  enforce  *  Green  v.  Turner,  38  Iowa,  112. 

the  account  and  redemption.     Yet  such  is  ^  Wilson  v.  Richards,  1  Neb.  342. 

the    prevalence  of  analogy  in  equity  that,  ^  Yarbrough   w.  Newell,   10    Yerg.  376; 

even  under  such  circumstances,  the  posses-  Hammonds  v.  Hopkins,  3  Yerg.  525. 

sion   of   the   mortgagee   for  twenty  years, 

111 


§§  1160-1161  a.]       WHEN   THE    RIGHT    TO    REDEEM   IS    BARRED. 

session.     After  payment  lie  holds  the  premises  for  the  mortgagor  as 
a  trustee.^ 

1160.  The  right  to  redeem  a  junior  mortgage  accrues  at  its 
maturity,  so  that  the  statute  of  limitations  then  begins  to  run 
against  it ;  though  it  has  been  suggested  that  it  may  begin  to  run 
upon  the  maturity  of  the  prior  mortgage.^ 

The  right  of  a  remainder-man  to  redeem  from  a  mortgagee  in 
possession  under  the  owner  of  the  precedent  estate  does  not  begin 
to  run  until  that  estate  is  terminated.^ 

1161.  After  a  foreclosure  sale  the  statute  runs  from  the  ex- 
piration of  the  year  of  redemption.  Where  a  purchaser  under 
a  foreclosure  sale  relied  upon  the  statute  of  limitations  to  sustain 
his  title  against  redemption  by  the  mortgagor,  it  appeared  that  the 
suit  to  redeem  was  commenced  about  twenty-one  years  after  the  re- 
covery of  judgment  in  the  foreclosure  suit  and  the  sale  under  it,  but 
a  little  less  than  twenty  years  from  the  time  the  purchaser  was  en- 
titled to  a  deed  of  the  land,  one  year  being  allowed  by  law  after 
the  sale  for  redemption.  It  was  held,  however,  that  the  suit  to  re- 
deem was  seasonably  brought,  because  the  mortgagor  was  entitled 
to  the  possession  during  the  year  without  any  liability  to  account 
for  the  rents  and  profits,  and  the  purchaser  in  the  mean  time  had 
only  a  certificate  of  purchase,  and  no  legal  title  or  right  to  the  prop- 
erty vested  in  him  until  he  received  a  deed  from  the  officer  after 
the  expiration  of  the  year.  The  mere  recovery  of  judgment  did 
not  terminate  the  relation  of  mortgagor  and  mortgagee,  and  during 
the  year  allowed  for  redemption  the  mortgage  remained  a  lien  upon 
the  premises.* 

1161  a.  A  lapse  of  time  less  than  that  prescribed  by  the 
statute  of  limitations  may  be  a  bar  to  redemption.  Thus,  a 
mortgagor  who,  knowing  that  the  property  has  been  sold  under 
foreclosure,  waits  more  than  seven  years  before  taking  any  step  to 
assert  his  rights,  cannot  then  claim  that  the  sale  was  void  on  ac- 
count of  his  imprisonment  at  the  time  of  the  sale,  though  he  was 
released  a  few  months  afterwards.  His  claim  to  redeem  will  be 
adjudged  stale.^ 

1  Green  v.  Turner,  38  Iowa,  112.  *  Eockwell  v.  Servant,  63  111.  424. 

2  Gower  v.  Winchester,  33  Iowa,  303.  ^  §§  1054,    1922 ;  Fraker  v.   Houck,    36 

3  Fogal  V.  Pirro,  17  Abb.  Pr.  113,  10  Fed.  Kep.  403.  Also,  Schlawig  i;.  Flecken- 
Bosw.  100.  stein,  80  Iowa,  668,  45  N.  W.  Rep.  770. 

112 


WHAT    PREVENTS    THE   RUNNING    OF   THE   STATUTE.       [§§  1162-1164. 

III.    What  prevents  the  Running  of  the  Statute. 

1162.  An  acknowledgment  will  not  be  inferred  from  equiv- 
ocal expressions.  A  mortgagee,  in  answer  to  a  letter  written  him 
by  the  solicitor  of  a  subsequent  incumbrancer,  replied  by  letter,  say- 
ing: "I  deny,  though  with  all  due  courtesy,  the  claim  of  your  client. 

I  need  only  add  that,  if  he  were  entitled  to  the  account,  it  would  be 
of  no  use,  as  the  rents  and  profits  of  the  estate  have  never  been 
sufficient  to  pay  the  interest  of  the  first  charge."  It  was  contended 
that  by  this  letter  he  acknowledged  that  he  held  under  a  mortgage 
title,  and  that  this  was  all  that  was  necessary  ;  but  the  Master  of 
the  Rolls  said  that  this  view  was  a  misapprehension  of  what  is  re- 
quired in  an  admission,  which  must  be,  not  that  the  mortgagee 
holds  under  a  mortgage  title,  but  that  some  one  has  the  right  to 
redeem,  "  Tliis  letter,  beginning  as  it  did  with  an  express  denial 
of  the  plaintiff's  claim,  could  not  be  treated  as  an  acknowledgment 
of  his  right  to  redeem.  If  this  were  so,  no  one  could  safely  an- 
swer a  solicitor's  letter  except  to  say  that  he  refused  to  give  anv 
reply.-' 1 

1163.  An  acknowledgment  made  after  the  expiration  of  the 
twenty  years  by  the  mortgagee  while  in  possession  has  the  same 
effect  as  one  made  before,  not  only  as  against  himself,  but  also  as 
against  all  persons  claiming  under  him,  or  claiming  an  estate  in 
remainder.^  "If  his  admission  had  any  effect  at  all,  it  must  have 
restored  the  original  character  of  the  mortgage,  and  must  have 
given  to  those  entitled  to  redeem  the  right  of  recovering  the  legal 
estate  on  payment  to  him  of  the  mortgage  money  in  his  character 
of  executor."^  But  it  is  said  that  after  the  twenty  years  have 
passed,  stronger  words  and  acts  are  required  to  constitute  an  admis- 
sion of  the  right  of  redemption  than  would  have  been  requisite 
while  the  mortgagor  clearly  had  this  right.*^ 

1164.  Acknowledgment  to  a  third  person.  —  Except  as  re- 
quired by  recent  statutes,  an  acknowledgment  of  the  mortgage  as 
a  subsisting  security  would  operate  to  keep  the  right  of  redemp- 
tion open,  although  not  made  to  the   mortgagor,   but   in   transac- 

1  Thompson  v.  Bowyer,  9  Jur.  N.  S.  863,        This  rule  applies  since  the  passing  of  the 

II  W.  R.  975.  statute  of  Will.  IV.  as  well  as  before. 

The  Master  of  Rolls,  Lord  Romilly,  de-  ^  Per  Sir  John  Stuart,  Vice-Chaiicellor, 

clared  the  authorities  on  the  question,  what  in  Pendleton  v.  Rooth,  1  Giif.  35,  1  De  G., 

constitutes  a  sufficient  acknowledgment,  to  F.  &  J.  81. 

be  difficult  to  reconcile.  *  Whiting  v.  White,  Coop.  1,  2  Cox,  290 ; 

2  Pendleton  v.  Rooth,  1  Giff.  35, 1  De  G.,  Barron  v.  Martin,  G.  Coop.  189. 
F.  &  J.  81  ;  Stansfield  v.  Ilobson,  3  De  G., 

M.  &  G.  020,  16  Bcav.  236. 

VOL.  II.  8  11" 


§--§  1165,  11G6.]       WHEN   THE   RIGHT   TO   REDEEM   IS    BARRED. 

tions  with  other  persons,  and  to  which  the  mortgagor  was  a  stran- 
ger, as  in  an  assignment  or  deed  to  a  third  person.  In  England, 
since  the  statute  of  3  &  4  Will.  IV.  ch.  27,  the  admission  must  be 
made  to  the  mortgagor  himself,^  or  to  his  agent,^  though  this  re- 
quirement has  been  the  subject  of  some  criticism. ^  An  assignment 
of  the  mortgage  subject  to  redemption  is  then  no  longer  a  sufficient 
acknowledgment,  because  the  assignee  is  not  a  claimant  of  the 
mortgagor's  estate,  but  of  the  mortgagee's;^  unless,  however,  tlie 
mortgagor  or  one  claiming  under  him  be  made  a  party  to  the  assign- 
ment, when  the  requirement  would  be  answered.^ 

1165.  The  mortgagee's  acknowledgment  is  binding  upon  all 
who  hold  under  him,  as,  for  instance,  his  lessee.*^  And  so  per- 
sons claiming  in  remainder  under  the  mortgagee's  will  are  bound 
by  an  admission  of  the  mortgage  title  made  by  his  devisee  in  tail 
subject  to  remainders  over,  by  a  purchase  of  the  title  of  the  own- 
ers of  the  equity  of  redemption,  notwithstanding  they  had  been 
out  of  possession  more  than  thirty  years  prior  to  the  mortgagee's 
death  :  their  title  was  revived  by  the  acknowledgment,  and  the 
tenant  in  tail  by  means  of  it  acquired  the  absolute  ownership  as 
ao;ainst  the  devisees  in  remainder.' 

1166.  By  rendering  an  account. — There  are  many  cases  in 
which  it  has  been  held  that  the  rendering  by  the  mortgagee  of  an 
account  of  the  amount  due  upon  the  mortgage  within  twenty 
years  after  his  entry  does  away  with  the  presumption  of  title  in 
him,  and  lets  the  mortgagor  in  to  redeem.^  Whether  accounts 
kept  by  the  mortgagee  in  his  own  books  would  have  this  effect 
without  some  communication  on  the  subject  to  the  mortgagor 
may  well  be  doubted.^  Accounts  kept  by  the  mortgagee's  agent, 
and  delivered  to  the  mortgagor  without  authority,  are  held  not 
to  have  this  effect. ^*^  Under  statutes  requiring  the  acknowledg- 
ment to  be  made  to  the  mortgagor  or  his  agent,  it  would  seem  to 
be  clear  that  a  mortgagee's  account  of  rents  received  by  him  would 
not  have  the  effect   of  defeating  the  bar  created  by  his  possession 

1  Lucas  V.  Dennison,  13  Sim.  584.  ^  Eclsell   v.  Buchanan,  2  Yes.  Jun.   83, 

2  Trulock  V.  Eobey,  12  Sim.  402,  2  Ph.  and  cases  cited;  Procter  v.  Cowper,  2  Vern. 
396.  377,  Anon.  2  Atk.  333  ;  Hodle  v.  Healey,  6 

3  Stansfield  i'.  Hobson,  3  De  G.,  M.  &  G.  Madd.  117. 

620.  9  Barron  v.  Martin,  19  Ves.  327;  Fair- 

*  Lucas  y.  Dennison,  13  Sim.  584.  fax  v.   Montague,  cited  2  Ves.   Jun.    84; 

5  Batchelor  v.  Middleton,  6  Hare,  75.  Campbell  v.  Beckford,  cited  4   Ves.  474  ; 

6  Ball  V.  Riversdale,  Beat.  550.  Lake  v.  Thomas,  3  Ves.  Jun.  17,  22;  Han- 
■?  Pendleton  v.  Booth,  1  De  G.,  F.  &  J.  sard  v.  Hardy,  18  Ves.  455;  Price  v.  Cop- 

81,  1  Gift'.  35,  5  Jur.  N.  S.  840,  6  Jur.  N.  S.    ner,  1  S.  &  S.  347. 

182.  I'J  Barron  v.  Martin,  G.  Coop.  189. 

114 


WHAT   PREVENTS   THE   RUNNING   OF   THE   STATUTE.      [§§  1167-1169. 

unless  communicated  in   writing  directly  to   the  mortgagor  or  his 
agent. 1 

1167.  Acknowledgment  by  letter.  —  An  acknowledgment  by 
a  mortgagee  in  the  way  of  a  letter  written  by  him  to  the  mortga- 
gor or  his  solicitor  is  sufficient.-  A  mortgagee  having  been  in  posses- 
sion more  than  twenty  years,  the  solicitor  of  the  mortgagor  wrote 
to  him  requesting  to  know  where  he  could  see  him  upon  the  sub- 
ject of  the  mortgage.  The  mortgagee  replied  by  letter,  saying, 
"  I  do  not  see  the  use  of  a  meeting  either  here  or  at  IManchester, 
unless  some  party  is  ready  with  the  money  to  pay  me  off."  It  was 
held  that  this  was  a  sufficient  acknowledgment  by  the  mortgagee 
that  he  held  a  redeemable  estate  in  the  property  to  exclude  the 
application  of  the  statute  of  limitations. 

1168.  Acknowledgment  may  be  made  by  an  assignment  of 
the  mortgage  as  security  for  a  debt,  or  by  any  form  of  an  assign- 
ment which  treats  the  mortgage  as  redeemable.^  It  does  not  mat- 
ter that  the  mortgagor  is  not  a  party  to  the  transaction. 

Now  under  the  English  statute,  however,  an  assignment  of  a 
mortgage  subject  to  the  equity  of  redemption  is  not  a  sufficient 
acknowledgment  to  make  the  estate  redeemable,  because  it  is  not 
an  acknowledgment  made  to  the  party  entitled  to  the  equity  of 
redemption,'*  But  aside  from  this  requirement,  such  an  assignment 
would  be  an  acknowledgment  of  the  mortgage  title  such  as  would 
make  a  renewal  of  it  from  that  time. 

1169.  By  recital  in  deed.  —  In  like  manner  the  recital  of  the 
mortgage  in  a  deed  by  the  mortgagee  is  a  sufficient  admission  of  it,^ 

1  See  Baker   v.  "Wetton,    14    Sim.  426  ;  appears  to  me  to  have  left  it  open  to  the 

Richardson  v.  Yonnge,  L.  R.  10  Eq.  275.  mortgagor   to  come  to  this  court  to  have 

'^  Stansfield  v.  Hobson,  3  De  G.,  M.  &  G.  the  balance  ascertained  upon  the  statement 

620,  16  Bcav.  236,     It  was  contended  in  this  that  he  was  ready  to  pay  off  the  money." 

case  that  the  right  of  redemption  was  not  ^  Hardy   v.   Reeves,   4    Ves.   Jun.   466; 

acknowledged  to  any  particular  person  in  Smart   v.    Hunt,   4  Ves.   Jun.   478,   note  ; 

accordance  with  the  statute  3  &  4  Will.  IV.  Borst  v.  Boyd,  3  Sandf.  Ch.  501. 

ch.  27,  §  28.     See  statute  quoted,  §  1171.  *  Lucas  v.  Dennison,  13  Sim.  584. 

But  Lord  Justice  Knight  Bruce  said  that  Upon   this   requirement   of   the    statute 

the  letter  must  be  understood  as  acknowledg-  Vice-Chancellor  Wigram,  in   Batchelor  i'. 

ing  a  title  to  redeem  in  the  person  on  whose  Middleton,  6  Hare,  75,  remarked  :  "  Why, 

behalf  the  solicitor  wrote.  however,  the  mortgagee  should  not  be  al- 

It  was  also  contended  that  the  acknow-  lowed  to  make  an   admission   (in  writing, 

ledgment  was  conditional   upon  some   one  signed  by  himself)  of  his  mortgage  title  to 

being  ready  to  pay  the  money.     "I  think,  a  third  person,  of  which  the  mortgagor  may 

however,"  said  Lord  Justice  Turner,  "that  have  the  benefit,  I   do  not  know;  but  the 

the  letter  could  not  mean  that  one  was  to  be  statute  requires  that  the  admission  should 

ready  at  the  moment  with  the  money,  be-  be  made  to  the  mortgagor  himself,  and  by 

cause  accounts  had  to  be  taken,  and  the  that  I  am  bound," 

balance  ascertained.     The   letter  therefore  *  Hansard  v.  Hardy,  18  Ves,  455. 

115 


§§  1170,  1171.]    WHEN    THE   RIGHT    TO   REDEEM   IS   BARRED. 

and  so  is  the  recital  of  it  in  bis  will,  by  wbicb  be  directs  a  certain 
disposition  of  tbe  money  in  case  the  mortgage  should  be  redeemed. ^ 
But  under  a  statute  requiring  tbe  acknowledgment  to  be  made  to 
tbe  mortgagor  or  bis  ngent,  a  recital  in  a  deed  to  a  third  person  or 
in  a  will  is  insufficient.^ 

1170.  By  commencing  proceedings  to  foreclose  the  mortgage 
the  mortgagee  recognizes  it  as  a  subsisting  lien,  and  the  mort- 
gagor may  tbereafter,  vvitbin  twenty  years,  file  a  bill  for  redemp- 
tion, and  for  an  account  of  the  rents  and  profits. ^  Such,  too,  is  the 
effect  of  proceedings  taken  meanwhile  to  enforce  the  mortgage 
debt,  although  they  be  irregular  and  ineffectual.^  It  would  be 
wholly  inconsistent  for  the  mortgagee  to  claim  that  there  is  no 
right  of  redemption  after  he  has  undertaken  by  such  proceedings 
to  bar  such  a  rigbt.  The  giving  of  notice  under  a  power  of  sale, 
or  under  a  statute  regulating  foreclosure  by  advertisement,  is  an 
admission  of  a  right  to  redeem.  This  is  in  effect  an  invitation  to 
tbe  owner  of  the  equity  of  redemption  to  pay  tbe  amount  of  the 
debt  and  redeem  the  estate,  if  he  so  chooses ;  and  the  mortgagee 
cannot  object  if  he  accepts  the  invitation. ° 

The  acknowledgment  may  also  be  found  in  an  answer  to  a  suit.^ 

1171.  A  verbal  acknowledgment  of  the  mortgage  as  a  subsist- 
ing security  is  sufficient  to  prevent  the  possession  from  operating  as 
a  bar  if  the  evidence  be  clear  and  unequivocal.'  Lord  Alvanley, 
commenting  upon  the  admissibility  of  such  evidence,  said  :  "  I  can- 
not help  thinking  that  it  would  have  been  a  very  wise  rule  if  no 

^  Orel  V.  Smith,  Sel.  Cas.  in  Ch.  9,  2  Eq.  it;  prayed  for  an  account  and  a  decree  of 

Cas.  Abr.  600.  strict  foreclosure.     The  defendant  appeared 

2  Lucas  V.  Dennison,  13  Sim.  584.  and  prayed  that  an  account  be  taken,  and 

3  Kobiuson  v.  Fife,  3  Ohio  St.  551  ;  Cal-  that  he  be  permitted  to  redeem.  The  com- 
kins  V.  Calkins,  3  Barb.  305.  In  this  case  plainant  then  moved  to  dismiss  his  bill 
the  mortgagee  had  been  in  possession  almost  upon  payment  of  costs.  This  was  allowed 
twenty  years  prior  to  the  proceeding  to  upon  terms  that  it  be  without  prejudice  to 
foreclose.  the  defendant's  right  to  the  benefit  of  the 

*  Jackson  v.  De  Lancey,  11  Johns.  365,  admission  and  waiver  contained  in  the  bill, 

affirmed    13  Johns.  537,  7  Am.  Dec.  403;  in  any   proceedings   the   defendant   might 

Catts  V.  York  Manuf.  Co.  18  Me.  190.  take  for  the  redemption  of  the  premises. 

5  Calkins  V.  Isbeli,  20  N.  Y.  147,  affirm-        «  Qoode  v.  Job,  1  El.  &  El.  6. 
ingS  Barb.  305  ;  Jackson  v.  Slater,  5  Wend.         •  Eeeks  v.  Postlethwaiie,  Coop.  161  ;  Lake 

295;  INIcCarren  v.  Googan  (N.  J.  Eq.),  24  v.  Thomas,  3  Ves.  Jan.  17  ;  Barron  v.  Mar- 

Atl.  Kep.  1033.     In  that  case  a  mortgagee  tin,  19  Ves.  327;  Perry  v.  Marston,  2  Bro. 

who  had  been  in  possession  for  more  than  Ch.   397,   per   Lord   Thurlow ;    Dexter   v. 

twenty  years,  desiring  to  make  his  title  mer-  Arnold,  3    Sumn.    152;  Marks   v.  Pell,    1 

chantable,  filed  a  bill  in  equity  against  the  Johns.  Ch.  594.    "  Such  acknowledgments," 

heirs  of  the  mortgagor,  in  which  he  set  out  says   Chancellor  Kent,    "  are   generally   a 

the  mortgage  and  his  possession  under  it;  dangerous  species  of  evidence."     See,  also, 

alleged  that  a  certain  amount  was  due  upon  Morgan  v.  Morgan,  10  Ga.  297,  304. 

116 


WHAT    PREVENTS    THE    RUNNING    OF   THE   STATUTE.       [§  1171. 


parol  evidence  had  been  admitted  upon  these  subjects."  ^  Mr.  Jus- 
tice Story,  quoting  this  opinion  with  approval,  says  :  "  Such  ad- 
missions and  acknowledgments  are  certainly  open  to  the  strong 
objection  that  they  are  easily  fabricated,  and  difficult,  if  not  im- 
possible, to  be  disproved  in  many  cases,  and  that  they  have  a  direct 
tendency  to  shake  the  security  of  all  titles  under  mortgages,  even 
after  a  very  long  exclusive  possession  by  the  mortgagee :  nay,  even 
after  the  possession  of  a  half  century."  ^ 

The  objections  to  such  evidence  have  been  found  to  be  so  great 
that  the  modern  statutes  of  limitation  in  England  provide  not  only 
that  an  acknowledgment,  to  be  effectual  as  a  recognition  of  the 
mortgagf^,  must  be  in  writing,  signed  by  the  mortgagee,  or  the  per- 
son claiming  through  him  :  but  also  that  it  must  be  made  to  the 
mortgagor,  or  some  person  claiming  his  estate,  or  to  his  agent.^  If 
the  writing  complies  with  these  conditions,  no  particular  form  is  re- 
quired under  this  statute.  The  amount  due  need  not  be  stated.^ 
An  acknowledgment  by  one  of  several  mortgagees  is  binding  only 
upon  himself  and  those  claiming  under  him,  and  enables  the  mort- 
gagor to  redeem  only  his  estate  or  interest  in  the  property.^  This 
provision  applies  only  to  mortgagees  holding  interests  in  severalty, 
and  not  as  joint  tenants.  An  acknowledgment  by  one  joint  mort- 
gagee who  is  a  trustee  is  entirely  inoperative  ;  all  must  join  in  it 
to  take  the  case  out  of  the  statute.^ 

1  Wliiting  V.  White,  2  Cox,  290,  300,  275,  6  Ch.  App.  478.  The  views  of  the 
Cooper,  1.  question   presented   in  this   case,  in   argu- 

2  In  Dexter  y.  Arnold,  3  Sumn.  152,  160.  ment  upon  appeal,  were:  1.  That  the  ac- 
"I  have  uot  in  my  researches,"  says  Judge  knowledgtnent  of  one  trustee  bound  both. 
Story,  "  found  any  other  cases  upon  the  2.  That  it  bound  a  half  interest,  and  en- 
point.  Aiid,what  is  very  remarivable,  there  abled  the  mortgagor  to  redeem  half  of  the 
is  no  instance  of  a  decree  being  made  upon  estate  upon  paying  half  the  debt.  3.  That 
such  parol  evidence  in  favor  of  the  party  it  bound  neither.  "  It  appears  to  me,"  said 
seeking  to  redeem.  In  the  present  case  I  Lord  Justice  James,  in  giving  judgment, 
am  spared  the  necessity  of  deciding  the  "to  be  the  best  construction  of  this  in- 
general  principle."  vol\^d  and  difficult  section  to  hold  that  the 

3  Under  statute  3  &  4  Wm.  IV.  ch.  27,  provisions  as  to  acknowledgment  by  some 
§28,  "an  acknowledgment  of  the  title  of  of  several  mortgagees  apply  only  where 
the  mortgagor,  or  of  his  right  of  redemp-  they  have  separate  interests,  either  in  the 
tion,  shall  have  been  given  to  the  mortgagor  money  or  the  land.  I  do  not  think  that 
or  some  person  claiming  his  estate,  or  to  Mr.  Wilson  had  any  separate  interest  either 
the  agent  of  such  mortgagor  or  person,  in  in  the  money  or  the  land.  He  was  simply 
writing,  signed  by  the  mortgagee  or  the  per-  joint  tenant  with  his  co-trustee  of  the  laud. 


son  claiming  through  him." 

*  Stansfield  v.  Ilobson,  16  Beav.  236,  3 
I)e  G.,  M.  &  G.  620 ;  Trulock  v.  Robey,  12 
Sim.  402,  2  Ph.  396  ;  St.  John  v.  B(nigh- 
ton,  9  Sim.  219. 

^  See  statute  quoted,  §  1146. 

^  Richardson  v.   Youn 


and  jointly  entitled  with  him  to  the  mort- 
gage money.  Had  the  mortgagees  not  been 
trustees,  the  case  would  have  stood  very 
differently,  for  they  must,  almost  of  neces- 
sity, have  been  entitled  to  some  distinct 
interests  in  the  mortgage-money.  And 
L.   II.  10  Eq.    if   they    had    been   partners,  difficult  qucs- 

117 


§§  1171  a-1173.]   WHEN  THE  RIGHT  TO  REDEEM  IS  BARRED. 

1171  a.  The  fact  that  the  mortgagee  was  the  mortgagor's 
attorney  does  not  rebut  tlie  presumption  that  the  mortgiigor  has 
lost  his  right  to  redeem,  and  to  have  an  accounting,  by  permitting 
the  mortgagee  to  remain  for  more  than  twenty  years  after  foreclos- 
ure in  actual  and  exclusive  possession  of  the  mortgaged  premises, 
unless  fraud  or  deception  be  shown  on  the  mortgagee's  part.^ 

1172.  The  filing  of  a  bill  to  redeem  stops  the  running  of  the 
statute,  .A  mere  demand  by  the  mortgagor  or  the  owner  of  the 
equity  of  redemption  to  be  allowed  to  redeem  does  not  prevent 
the  running  of  the  statute,^  unless  accompanied  by  a  tender  of  the 
amount  due  upon  the  mortgage,  as  provided  by  statute  in  some 
States,  and  followed  by  a  suit  within  a  year  or  other  specified 
time.  Tlie  commencement  of  a  suit  to  redeem  is  sufficient  to  save 
the  right  against  the  statute  although  the  bill  be  filed  merely, 
without  any  service  of  it,  before  the  expiration  of  the  twenty 
years'  possession.  The  filing  of  the  bill  is  the  commencement  of 
the  suit.3  But  the  plaintiff  may,  by  unwarranted  delay  in  the  pros- 
ecution of  the  suit,  lose  all  benefit  of  it.^ 

1173.  The  statute  of  limitations  must  be  pleaded  in  order  to 
secure  the  protection  of  it.^  It  may  be  pleaded  by  answer  as  a  de- 
fence,^ or,  in  case  it  appears  on  the  face  of  the  plaintiff's  bill  that 
the  mortgagee  has  been  in  possession  for  twenty  years,  without 
acknowledgment  of  the  mortgage  title,  by  demurrer.''  But  such 
possession  must  appear  by  dates  positively  stated,  and  not  to  be 
made  out  by  inference,  or  argument,^  or  presumption.^ 

tious  might  have  arisen ;  but  in  the  pres-  bar.     A  plea  of  the  statute  of  limitations 

cut  case,  which  is  simply  that  of  trustees,  to  a  cause  of  action  which  arose  in  another 

I   agree  with    the  conclusion  of  the  Vice-  State  need  not  allrge  facts  to  show  that  the 

Chancellor."  cause   of   action  arose   in   that  State,  and 

1  Clark  V.  Clough,  65  N.  H.  43,  23  Atl.  under  the  laws  of  that  State  is  barred  by 

Eep.  526.  the  statute  of  limitations.     Code  Civ.  Proc. 

"  Hodle  V.  Healey,  1  V.  &  B.  536.  §  458  ;  Allen  v.  Allen,  95  Cal.  184,  27  Tac. 

3  Van  Vronker  v.  Eastman,  7  Met.  157.  Kep.  30. 

*  Forster  v.  Thompson,  4   Dr.   &  War.  ^  Batchelor   v.    Middleton,   6    Hare,  75; 

303  ;  Coppin  v.  Gray,  1  Y.  &  C.  C.  C.  205.  Adams   v.   Barry,   2    Coll.    285 ;  Aggas   v. 

5  Fordham  v.  W.allis,  10  Hare,  217,  231,  Pickerell,  3  Atk.  225. 

17  Jur.  228.     In  California,  in  pleading  the  '  Foster  v.  Hodgson,  19  Ves.  180  ;  Hoarei'. 

statute  it  is  not  necessary  to  state  the  facts  Peck,  6  Sim.  51 ;  Baker  v.  Wetton,  14  Sim. 

showing  the  defence,  but  it  may  be  gcner-  426  ;  Jenner  v.  Tracy,  3  P.  Wms.  287  n. 

ally  stated  that  the  cause  of  action  is  barred  ^  Edsell  v.  Buchanan,  2  Ves.  Jun.  83,  4 

by  a  certain  section  of  the  Code.     If  such  Bro.  C.  C.  254. 

.allegation  be  controverted,  the  party  plead-  '*  Baker  v.  Wetton,  14  Sim.  426;  Green 

ing   must  establish   the  facts   showing  the  d.  Nicholls,  4  L.  J.  Ch.  118. 

118 


CHAPTER   XXV. 

WHEN   THE   RIGHT    TO  ENFORCE  A   MORTGAGE  ACCRUES. 

1174.  In  general  the  right  of  action  accrues  upon  the  non-pay- 
ment of  the  principal  or  interest  at  the  time  fixed  for  payment.^ 
If  it  be  shown,  by  agreement  of  the  parties  at  the  time  of  the  exe- 
cution of  a  bond  payable  on  demand,  that  it  was  not  to  be  paid 
till  a  future  specified  time,  the  statute  of  limitations  will  be  con- 
sidered as  beginning  to  run  only  from  the  time  agreed  upon  for 
payment.2  jf  ^q  tj^ne  of  payment  is  fixed,  the  debt  is  payable  on 
demand,  and  the  right  to  enforce  it  accrues  immediately.^  And  so, 
if  by  the  express  terms  of  the  mortgage  the  debt  is  payable  on  de- 
mand, the  mortgagee  may  foreclose  by  suit  at  any  time  without  a 
previous  demand  other  than  the  commencement  of  the  suit.* 

But  if  the  condition  of  a  mortgage  given  to  secure  a  note  pay- 
able on  demand  be  that,  if  the  note  be  paid  "  within  sixty  days 
after  such  demand,"  the  mortgage  shall  be  void,  a  demand  of  pay- 
ment is  necessary  to  work  a  breach  of  the  condition,  and  no  right 
of  action  accrues  until  sixty  days  have  elapsed  after  demand.^ 

No  effectual  sale  under  a  power  or  by  decree  of  court  in  a  fore- 
closure suit  can  be  made  until  the  occurrence  of  the  event  upon 
the  happening  of  which  a  sale  or  foreclosure  is  authorized.^ 

A  mortgage  cannot  be  foreclosed  before  it  is  due  or  there  is  a 
breach  of  some  condition,  although  in  a  suit  to  foreclose  a  sub- 
sequent mortgage  on  the  same  property  the  holder  of  the  prior 
mortgage  not  yet  due  is  made  a  party  defendant,  and  he  files  a 
cross-bill  asking  the  foreclosure  of  his  mortgage.     The  subsequent 

1  Gladwyn  v.  Hitchman,  2  Vern.  135.  by  the  auditor  of  the  company;  but  it  was 

'-i  Hale  V.  Pack,  10  W.  Va.  145.  held   that  this  provision  was  intended   to 

3  Eaton  V.  Truesdail,  40  Mich.  1  ;  Rhoads  operate  only  in  case  the  mortgage  should  be 

V.  Reed,  89  Pa.  St.  436.  within  his  control,  but  may  be  made  by  an 

*  Gillett  V.  Balcom,  6  Barb.  370;  Union  assignee  of  the  mortgage.     But  if  demand 

Cent.  L.  Ins.  Co.  v.  Curtis,  35  Ohio  St.  357  ;  be  made  by  an  agent  of  the  owner,  mere 

Hill    V.    Henry,    17    Ohio,    9  ;   Darling    v.  possession  of  the  note  is  not  proof  of  the 

Wooster,  9  Ohio  St.  517.  agency.     Union  Cent.  L.  Ins.  Co.  v.  Jones, 

5  Union  Cent.  L.  Ins.  Co.  v.  Curtis,  35  35  Ohio  St.  351. 
Ohio  St.  343.     The  mortgage  in  this  case  «  Eitelgeorge    v.   Mutual    Hou.se   Build- 
was  to  an  insurance  company,  and  it  was  ing  Asso.  69  Mo.  52 ;   Felton  v.  Bissd,  25 
provided  that  the  demand  should  be  made  Minn.  15. 

119 


§  1175.]        WHEN   RIGHT   TO   ENFORCE   MORTGAGE   ACCRUES. 

mortgage  must  be  foreclosed  by  a  sale,  subject  to  the  lien  of  the 
prior  mortgage.  The  whole  estate  cannot  be  sold  for  the  payment 
of  both  mortgages.^ 

A  mortgagor  may  waive  a  credit  secured  to  him  by  the  terms  of 
the  mortgage  and  consent  to  an  immediate  foreclosure ;  and  if  the 
mortgagee  be  in  possession,  or  have  the  right  of  possession,  an  ex- 
ecution creditor  of  the  mortgagor,  or  a  purchaser  of  the  equity  of 
redemption  upon  execution  sale,  cannot  object  that  the  debt  is  not 
due,  except  upon  a  bill  to  redeem.^ 

1175.  The  right  to  foreclose  may  be  made  to  depend  upon 
events  other  than  the  lapse  of  time  which  generally  determines 
the  right;  ^  or  the  nature  of  the  security  maybe  such  that  an  event 
not  contemplated,  or  provided  for  by  the  parties,  may  give  this 
right ;  as  where  the  mortgage  secures  the  fulfilment  of  an  executory 
agreement  which  is  to  run  for  three  years,  and  the  insolvency  of 
the  mortgagor  within  that  time  puts  it  out  of  his  power  to  fulfil  the 
agreement ;  and  therefore  this  works  a  breach  of  it,  and  gives  the 
mortgagee  the  right  to  foreclose  immediately.^ 

Thus  also  a  mortgage  may  be  conditioned  that  the  mortgagor 
shall  pay,  within  a  fixed  time,  all  debts  contracted  by  him  for  labor 
and  material  for  the  construction  of  a  building.  In  such  case  a 
default  occurs  when  there  are  any  debts  outstanding  which  would 
be  a  lien  ag-ainst  the  buildino-.^ 

Where  a  mortgage  was  given  to  secure  certain  promissory  notes, 
conditioned  "  that,  if  any  of  the  notes  prove  to  be  insolvent  or 
worthless,  the  mortgage  is  to  be  good  and  valid,  otherwise  to  be 
null  and  void,"  it  was  held  that  to  constitute  a  breach  some  of  the 
notes  must  prove  worthless,  or  the  makers  insolvent.  Non-payment 
alone  did  not  constitute  a  breach.*^ 

It  is  very  generally  provided  by  the  terms  of  the  mortgage  that 
the  mortgagee  shall  have  the  right  to  sell  on  the  failure  of  the 
owner  to  pay  the  taxes  assessed  on  the  premises,  and  in  such  case  a 
default  in  this  particular  gives  the  right  to  sell  as  effectually  as 
when  the  default  consists  in  the  non-payment  of  the  principal  sum 
secured.'^  And  so  a  condition  in  a  mortgage,  that  in  case  the  taxes 
upon  the  premises  shall  remain  unpaid  after  a  certain  date  in  any 

1  Trayser  v.  Indiana  Asbury  University,        ^  Houston  v.  Nord,  39  Minn.  490,  40  N. 
39  Ind.  556.  W.    Rep.    568.     The    mortgage    was  con- 

2  Morton  v.  Covell,  10  Neb.  423.  strued  to  be  one  not  of  indemnity  merely. 

3  Delano  v.  Smith,  142  Mass.  490,  8  N.        6  Fetrow  v.  Merriwether,  53  111.  275. 

E.  Rep.  644.  ^  Pope  v.  Diirant,  26    Iowa,  233;  Har- 

*  Harding  v.  Mill  River  Woollen  Manuf.  rington  v.  Christie,  47  Iowa,  319  ;  Condon 

Co.  34  Conn.  458.  v.  Maynard,  71  Md.  601,  18  Atl.  Rep.  957. 
120 


WHEN   RIGHT   TO   ENFORCE   MORTGAGE   ACCRUES.         [§  1176. 

year  the  whole  debt  shall  become  cine,  is  equally  binding  and  opera- 
tive as  a  like  condition  in  respect  to  the  non-payment  of  any  instal- 
ment of  the  principal  or  interest,  and  the  court  has  no  power  to  re- 
lieve the  person  in  default  from  the  consequences  of  it.^  But  where 
the  mortgage  merely  provides  that  the  mortgagor  shall  pay  the 
taxes  upon  the  premises,  and  in  default  of  so  doing  that  the  mort- 
gagee may  discharge  the  same  and  collect  them  as  a  part  of  the 
mortgage  debt,  then  the  failure  of  the  mortgagor  to  pay  them  is 
not -such  a  default  as  will  give  the  right  to  foreclose.  And  even  if 
it  be  further  provided  that  on  default  in  the  payment  of  the  prin- 
cipal sum  or  interest,  or  of  the  taxes  as  provided,  the  mortgagee 
may  sell,  and  out  of  the  moneys  arising  from'  such  sale  retain  the 
whole  debt  and  interest,  together  with  "  such  taxes  and  charges  as 
shall  have  been  paid  by  him,"  the  right  to  sell  on  account  of  the 
taxes  alone  does. not  arise  until  the  mortgagee  has  himself  paid  the 
taxes,  because  until  then  no  money  has  become  due  which  he  is 
entitled  to  retain  on  a  sale.^ 

1176.  A  failure  to  pay  an  instalment  of  interest  or  principal 
when  due  is  a  default  within  the  meaning  of  a  mortgage  or  trust 
deed  which  authorizes  a  sale  to  be  made  upon  the  happening  of  any 
default,^  although  the  deed  does  not  show  when  the  interest  is  pay- 
able or  what  the  rate  of  it  is,  except  by  reference  to  the  note  se- 
cured.* In  such  case  a  subsequent  purchaser  of  the  mortgaged 
premises  cannot  insist  that  there  was  no  power  to  sell  for  non-pay- 
ment of  such  interest,  because  the  mention  of  interest  in  the  deed 
as  reserved  by  the  note  is  sufficient  to  put  him  upon  inquiry  as  to 
the  rate  and  time  of  payment  of  the  interest. 

No  default  arises  upon  a  refusal  of  the  mortgagor  to  pay  usurious 
interest  reserved  by  the  mortgage,  where  usury  works  a  forfeiture 
of  the  entire  interest,  and  a  foreclosure  of  the  mortgage  by  adver- 
tisement upon  such  default  is  without  legal  warrant  and  void.^ 

1  O'Connor  v.  Shipman,  48  How.  Pr.  126.  Building  &  Loan  Asso.  v.  Boyer,  42  N.  J. 

2  Williams  v.  Townsend,  31  N.  Y.  411.  Eq.  273. 

3  Stanhope  v.  Manners,  2  Eden,  197;  For  a  case  where  time  of  payment  of 
Goodman  v.  Cinn.  &  Chicago  R.  R.  Co.  2  interest,  and  consequent  right  to  foreclose 
Disney  (Ohio),  176;  West  Branch  Bank  v.  for  non-payment,  were  not  affected  by  an 
Chester,  11  Pa.  St.  282,  51  Am.  Dec.  547  ;  agreement  whereby  the  possession  with  the 
Burt  V.  Saxton,  1  Hun,  551  ;  Kelly  v.  Ker-  mortgagee's  consent  is  delivered  to  a  person 
shaw,  92  Mo.  614,  14  Pac.  Rep.  804, 16  Pac.  who  makes  further  advances,  which  are  to 
Rep.  488.  be  a  first  lien  upon  the  property,  and  a  final 

Where  a  mortgage  is  foreclosed  by  an  settlement  is  to  be  made  at  the  end  of  three 

assignee  for  non-payment  of  interest,  the  years,  see  South  St.  Louis  Ry.  Co.  v.  Plate, 

assignor  will  not  be  allowed  to  jirove  that  92  Mo.  614,  5  S.  W.  Rep.  199. 

all  the  interest  for  the  whole  term  of  the  *  Richards  v.  Holmes,  18  How.  143. 

mortgage,  which  had  several  years  to  run,  &  Chase  v.   Whitten   (Minn.),  53  N.  W. 

had  been  paid  to  him  in  advance.     Newton  121 


§  1177.]        WHEN   RIGHT   TO   ENFORCE   MORTGAGE  ACCRUES. 

If  the  condition  of  a  mortgage  given  to  secure  several  notes  ma- 
turing at  different  times  be,  that  if  the  mortgagor  shall  pay  all  the 
notes  as  they  become  due,  then  the  mortgage  shall  become  null  and 
void,  a  failure  to  pay  any  note  when  it  falls  due  is  a  breach  of  the 
condition. 1 

A  promissory  note  given  by  the  mortgagor  for  accrued  interest 
does  not,  after  the  maturity  of  the  note,  operate  as  payment  so  as  to 
take  away  the  mortgagee's  right  of  foreclosure  on  account  of  the 
arrears  of  interest,  in  the  absence  of  a  specific  agreement  of"  the 
parties  to  that  effect.^ 

1177.  Default  in  the  payment  of  the  yearly  or  half-yearly 
interest  at  the  times  stipulated  in  the  mortgage  is  held  by  some 
authorities  to  give  the  right  to  foreclose  immed.iatel3%  although  the 
period  for  payment  of  the  principal  sum  has  not  arrived,  and  there 
is  no  provision  specifically  making  a  forfeiture  of  the  principal 
upon  a  default  in  the  payment  of  the  interest.'^  A  dictum  of  Lord 
Chancellor  Sugden  is  much  relied  upon  as  establishing  this  doc- 
trine :  that,  "  default  having  been  made  in  the  payment  of  the  in- 
terest thereon,  the  mortgagee  would  at  any  time  after  that  event 
have  had  a  right  to  file  his  bill  for  a  foreclosure  ;  because  his  right 
became  absolute  at  law  b}^  the  non-payment  of  the  interest,  the 
estate  having  been  conveyed  subject  to  a  condition  which  had  not 
been  fulfilled."*  This  was  followed  in  the  case  of  Edwards  v.  Mar- 
tin^  notwithstanding  that  the  mortgagee  had  taken  possession  of 
the  property,  consisting  of  certain  leasehold  estates,  and  had  real- 
ized by  a  sale  of  a  portion  more  than  enough  to  cover  the  interest 
due.  Kindersley,  Vice-Chancellor,  said :  "  It  is  certainly  singular 
that  this  question  has  never  before  been  decided  ;  but,  in  the  ab- 
sence of  any  direct  authority,  the  dictum  of  Lord  St.  Leonards  is 
sutficient  for  me  to  act  upon  when  I  consider  that,  upon  the  whole, 
that  dictum  is  in  accordance  with  the  justice  of  the  case." 

Where  upon  a  sale  of  land  the  purchaser  retained  a  portion  of 
the  purchase-money  as  indemnity  against  an  incumbrance,  and  gave 
the  grantor  a  bond  and  mortgage  for  the  money  retained,  payable 
with  lawful  interest  on  the  extinguishment  of  the  claim,  it  was  held 

Eep.  767  ;  Jordan  r.  Humphrey,  31  Minn,  mortgage  was  made  for  £450,  payable  at  the 

495,  18  N.  W.  Rep.  450.  end  of  five  years,  with  interest  at  the  rate 

1  Fisher  v.  Milmine,  94  111.  328.  of  £b   per   cent,    in  the  mean  time.     The 

2  Dean  v.  Ridgeway,  82  Iowa,  757,  48  interest  not  being  paid  as  stipulated,  the 
N.  W.  Rep.  923.  mortgage  was  treated  as  forfeited. 

3  Butler  V.  Blackman,  45  Conn.  159;  *  Burrowes  v.  Molloy,  2  Jones  &  L. 
Dederick  v.  Barber,  44  Mich.  19  ;  Gladwyn  125. 

V.  Ilitchman,  2  Vern.  135.     lu  this  case  a        ^  25  Law  J.  N.  S.  Ch.  284. 

122 


WHEN    RIGHT   TO   ENFORCE   MORTGAGE   ACCRUES.       [§  1178. 


that  the  mortsaoe  could  be  foreclosed  for  arrears  of  interest,  al- 
though  the  principal  had  not  become  due  through  the  removal  of 
the  incumbrance.^ 

Under  an  agreement  for  a  mortgage,  the  court,  in  settling  the 
terms  of  the  mortgage  to  be  given  in  pursuance  of  it,  will  ordina- 
rily insert  a  proviso  that  the  postponement  shall  be  conditional  on 
punctual  payment  of  interest,  although  the  agreement  be  silent 
upon  the  subject ;  so  that,  if  the  mortgagor  should  make  default  in 
the  payment  of  interest,  the  mortgagee's  remedy  by  sale  or  fore- 
closure will  immediately  arise,^ 

1178.  But  the  agreement  in  respect  to  the  payment  of  the 
principal  may  be  such  that  a  default  in  the  payment  of  the  inter- 
est will  give  no  right  to  institute  proceedings  for  foreclosure ;  as, 
for  instance,  where  it  is  provided  that  the  principal  shall  not  be 
called  in  during  the  lifetime  of  the  mortgagor ;  tiiough  a  yearly  in- 
terest is  reserved,  a  default  in  the  payment  of  the  interest  during 
the  lifetime  of  the  mortgagor  gives  no  right  of  action.^ 

If  the  mortgage  contains  an  absolute  covenant  that  the  principal 
shall  not  be  called  in  during  a  specific  period,  or  until  the  happen- 
ing of  a  certain  event,  then  no  default  in  the  payment  of  the  in- 


1  Van  Doren  v.  Dickersou,  33.  N.  J.  Eq. 
388. 

2  Seatou  V.  Twyford,  L.  E.  11  Eq.  .591. 

3  BuiTowes  V.  Molloy,  2  Jones  &  L.  .521. 
Lord  Chancellor  Sugden  said  :  "  Supposing 
that  the  principal  sura  had  been  made  pay- 
able on  a  given  day,  no  matter  whether  it 
was  one  year  or  twenty  years  after  the  date 
of  the  mortgage,  with  interest  thereon  half- 
yearly  in  the  mean  time,  and  that,  before 
the  day  of  payment  of  the  principal  money, 
default  had  been  made  in  the  payment  of 
the  interest  thereon,  the  mortgagee  would, 
at  any  time  after  that  event,  have  had  a 
right  to  file  his  bill  for  a  foreclosure ;  be- 
cause his  right  became  absolute  at  law  by 
the  non-payment  of  the  interest,  the  estate 
having  been  conveyed  subject  to  a  condi- 
tion which  had  not  been  fulfilled.  .  .  .  This 
transaction  assumed  a  different  shape  with 
respect  to  the  payment  of  the  principal  and 
the  payment  of  the  interest ;  it  was  only 
upon  the  non-payment  of  the  principal  sum, 
after  the  decease  of  the  mortgagor,  that  the 
mortgagee  was  to  have  a  right  to  foreclose. 
Interest  was  to  be  paid  half-yearly  upon  the 
principal  sum  ;  and  after  the  decease  of  the 
mortgagor  any  default  in  the  payment  of  the 


interest  would  enable  the  mortgagee  to  file 
his  bill  of  foreclosure,  because  the  condition 
would  then  have  been  broken  ;  but  the  cove- 
nant is  independent  of  everything  contained 
in  the  deed  of  mortgage,  and  is  in  point  of  fact 
an  absolute  covenant  that,  notwithstanding 
anything  contained  in  the  mortgaf^e  deed, 
the  mortgagee  will  not  call  in  the  principal 
money  during  the  lifetime  of  the  mortgagor. 
I  do  not  see  how  any  default  in  the  payment 
of  the  interest,  during  the  lifetime  of  the 
mortgagor,  can  enable  the  mortgagee  to  com- 
mit a  breach  of  his  covenant.     It  was  said 
that  this  was  like  a  case  where,  although 
the  money  was  by  the  proviso  for  redemp- 
tion to  be  paid  at  a  fixed  period,  yet  the  mort- 
gagee covenants  that  he  will  not  call  in  the 
principal  for  a  longer  period,  unless  default 
should  be  made  in  the  payment  of  the  inter- 
est in  the  mean  time ;  but  the  parties  here 
have  not  entered  into  such  an  arrangement. 
I  think,  therefore,  that  under  these  instru- 
ments the  plaintiff  was  not  at  liberty  to  file 
his  bill  for  a  foreclosure,  as  far  as  relates  to 
the  principal  money,  and  therefore  cannot 
do  so  in  respect  of  the  interest  which  ac- 
crued before  the  principal  sum  became  pay- 
able." 

123 


§  1179.]        WHEN   RIGHT   TO   ENFORCE   MORTGAGE  ACCRUES. 

terest  in  the  mean  time  will  enable  the  mortgagee  to  sue.^  Such  a 
covenant  may  prevent  a  mortgagee's  suing  upon  a  salvage  claim, 
as,  for  instance,  upon  a  prior  mortgage  which  he  has  been  obliged 
to  take  up  for  his  own  protection  ;  although  that  has  matured,  the 
covenant  in  his  own  mortgage  will  prevent  his  enforcing  it  during 
the  time  included  in  his  covenant.^ 

When  it  appears  upon  the  whole  mortgage  deed  that  although 
the  principal  and  interest  are  expressed  to  be  payable  at  the  end 
of  several  years,  yet  it  was  the  intention  and  agreement  of  the 
parties  that  the  interest  should  be  paid  half  yeai'ly,  the  mortgagee 
may  foreclose  upon  a  default  in  the  payment  of  the  interest  in  the 
mean  time.^ 

1179.  It  is  competent  for  the  parties  to  so  provide  that  the 
continuance  of  the  loan  shall  depend  upon  the  promptness  of 
the  borrower's  paying  the  interest,  or  the  instalments  of  princi- 
pal.* It  is  competent,  also,  for  the  parties  to  provide  that  upon  a 
default  of  the  mortgagor  in  the  payment  of  the  taxes  assessed 
upon  the  premises  the  whole  mortgage  debt  shall  become  due.*^ 
When  the  mortgage  provides  that  upon  any  default  in  the  pay- 
ment of  interest  the  principal  sum  shall  immediately,  or  after  the 
continuance  of  the  default  for  a  specified  time,  become  due,  time 
is  made  the  essence  of  the  contract,  and  a  court  of  equity  will  not 
relieve  the  mortgagor  from  a  default,  unless  he  can  show  some  good 
excuse  for  it,  such  as  mistake  or  accident  or  fraud. ^  The  time  of 
payment  may  be  extended  by  a  parol  agreement  so  that  there  will 
be  no  default  within  the  meaning  of  the  deed,  because  this  is  made 
with  the  concurrence  of  the  creditor.  Although  such  an  agreement 
be  not  binding  for  want  of  consideration,  and  therefore  is  subject  to 
revocation  at  any  moment,  it  is  a  sufhcient  excuse  for  the  default. 
The  ci'editor  cannot  treat  it  as  a  default  working  forfeiture,  without 
first  demanding  payment  of  the  instalment. 

1  Fisher  on  Mortgages,  3d  ed.  347.  17  N.  Y.  Supp.  638;  Beisel  v.  Artman,  10 

-  Burrowes  v.  Molloy,  2  Jones  &  L.  521.  Neb.  181,  4  N.  W.  Rep.  1011  ;  Baldwin  v. 

See  Dugdale  v.  Robertson,  3  Jur.  N.  S.  687,  Van  Vorst,  10  N.  J.  Eq.  577  ;  Anderson  v. 

as   to   suit  for  injuries   to  the  security  in  Lodi  Branch  R.  R.  Co.  31  N.  J.  Eq.  42; 

such  case.  De  Groot  v.  McCotter,  19  N.  J.  Eq.  531  ; 

3  Roddy   V.  Williams,   3  Jones  &  L.   1.  Albert  v.  Grosvenor  Investment  Co.  8  Best 

See  Wisner  v.  Chambeilin,  117  111.  568.  &  S.  664,  L.  R.  3  Q.  B.  123.     Per  Lush,  J. : 

*  Cassidy  v.  Caton,  47  Iowa,  22,  7    Re-  "The   word    'default'   imports   something 

porter,  335;  Stanclift  v.  Norton,  11  Ivans,  wrongful,  —  the  omission  to  do  something 

218 ;  Wliitcher  v.  Webb,  44  Cal.  127.  which,  as  between  the  parties,  ought  to  have 

^  Stanclift  f.  Norton,  11  Kans.  218;  Smal-  been  done  by  one  of  them.     Therefore  the 

ley  V.  Renken  (Iowa),  52  N.  W.  Rep.  507.  omission  of  the  plaintiff  to  pay  on  the  day 

^  Terry  v.  Eureka  College,  70  111.  236;  specified,  being  with  the  concurrence  of  the 

Heath  v.  Hall,  60  111.  344  ;  Martin  v.  Clover,  defendants,  was  not  a  default." 

124 


WHEN   RIGHT   TO   ENFORCE   MORTGAGE   ACCRUES.       [§  1179  a. 

Where  it  was  provided  that  in  case  the  interest  should  remain 
due  and  unpaid  for  ten  days  the  principal  sliould  become  due, 
and  the  owner  of  the  equity  paid  the  interest  after  that  time  and 
took  a  receipt  as  of  the  day  when  it  fell  due,  it  was  held  to  be  a 
waiver  of  the  forfeiture,  so  that  the  mortgagee  could  not  proceed 
to  foreclose.^  Neither  will  the  court  enforce  a  forfeiture  of  the 
time  of  credit  if  the  failure  to  pay  the  interest  within  the  time 
specified  was  occasioned  by  the  acts  or  declarations  of  the  holder  of 
the  mortgage; 2  as  where  by  agreement  of  the  parties  the  payment 
of  interest  had  been  regularly  made  at  the  place  of  business  of 
the  mortgiigor,  and  the  payment  on  which  the  forfeiture  of  credit 
was  claimed  occurred  because  the  mortgagee  had  not  called  for  the 
interest,  and  the  mortgagor  did  not  know  where  to  find  him  ;  ^  or 
where  the  owner  of  the  equity  tendered  the  amount  due,  which  the 
mortgagee  refused  to  receive  ;  ^  or  where  the  mortgagee  had  paid 
over  to  the  mortgagor  only  a  part  of  the  consideration  of  the  mort- 
gage at  the  time  of  the  default.^ 

1179  a.  It  is  not  essential  that  this  provision  shall  be  con- 
tained in  both  the  mortgage  and  note.  When  these  instruments 
are  executed  at  the  same  time  with  regard  to  the  same  transaction, 
and  make  reference  to  each  other,  they  are  but  one  in  the  eye  of 
the  law,  and  the  terms  of  either  are  qualified  by  any  provisions  of 
the  other  applicable  thereto.*^  If  the  note  states  that  it  is  secured 
by  mortgage,  a  provision  of  the  latter  that  upon  default  in  the 
payment  of  interest  the  whole  del3t  secured  shall  become  due  and 
payable  becomes  in  law  a  part  of  the  former.^  A  similar  provision 
in  the  note  qualifies  in  the  same  way  the  legal  effect  of  the  mort- 
gage from  which  the  provision  is  omitted.^  Consequently  a  provi- 
sion in  the  mortgage,  that  all  the  notes  secured  thereby  shall  become 

1  Sire  V.  Wightman,  25  N.  J.  Eq.  102.  Int.    134).     Although    this   was   a  writ  of 
For  circumstances  under   which  the  re-    scire  facias,  the    court    applied    equitable 

ceipt  of  interest  will  not  be  regarded  as  a  principles  of  construction. 

waiver  of   forfeiture,  see  Odell  v.  Hoyt,  73  '"  Booknau  v.  Burnett,  49  Iowa,  303. 

N.  Y.  343.  *^  Buchanan  v.  Berkshire  L.  Ins.  Co.  96 

2  Wilson  V.  Bird,  28  N.  J.  Eq.  352.  Ind.  510,  520. 

3  De  Groot  v.  McCotter,  19  N.  J.  Eq.  '  Gregory  v.  Marks,  8  Biss.  44 ;  Noell  «. 
531.  The  order  in  this  case  was  that  upon  Gaines,  68  Mo.  049,  Hough,  J.,  dissenting, 
payment  to  the  complainant,  within  ten  8  Cent.  L.  J.  353 ;  Waples  v.  Jones,  62  Mo. 
days,  of  the  amount  then  due,  all  proceed-  440;  Schoonmaker  v.  Taylor,  14  Wis.  313; 
ings  upon  the  mortgage  be  stayed,  until  Wheeler  &  W.  Manuf.  Co.  v.  Howard,  28 
default  be  made  according  to  the  condition  Eed.  Kep.  741 ;  Kempner  v.  Comer,  73  Tex. 
of   the  mortgage,  without  reference  to  de-  19G,  11  S.  W.  Rep.  194. 

fault  in  the   payment  of   interest  moneys        ^  Fletcher  y.  Uaugherty,  13  Neb.  224,  13 
previously  due.  '       N.  W.  Rep.  207. 


*  Ewart   V.   Irwin,   1   Phila,   78  (7  Leg. 


125 


§  1179  5.]      WHEN   RIGHT   TO   ENFORCE   MORTGAGE   ACCRUES. 

due  on  default  in  the  payment  of  either  of  them,  or  in  the  payment 
of  taxes,  or  for  insurance,  on  such  default  makes  the  notes  due,  not 
merely  for  foreclosure  proceedings,  but  for  general  purposes,  so  that 
suit  may  be  brought  on  any  of  them.^ 

If  there  be  a  discrepancy  between  the  terms  of  the  mortgage 
and  those  of  the  bonds  secured  thereby,  inasmuch  as  the  debt  is 
the  principal  thing  and  tlie  mortgage  only  a  security,  the  terms  of 
the  description  of  the  debt  will  govern.  Thus,  if  a  mortgage  exe- 
cuted by  a  corporation,  to  secure  its  bonds,  provides  that,  in  case  of 
default  for  six  months  in  the  payment  of  the  interest  upon  either 
of  them,  the  entire  amount  of  the  debt  secured  "  shall  forthwith 
become  due  and  payable,"  and  that  the  lien  of  the  mortgage  may 
be  at  once  enforced,  and  the  bonds  themselves  declare  that,  "  in  case 
of  the  non-payment  of  any  half-yearly  instalment  of  interest  which 
shall  have  become  due  and  been  demanded,  and  such  default  shall 
have  continued  six  months  after  demand,"  the  principal  of  the  bond 
shall  become  due,  with  the  effect  provided  in  the  mortgage,  a  de- 
mand for  payment  is  necessary  to  make  the  principal  of  the  bonds 
payable.^ 

1179  h.  Demand  after  default  is  not  necessary  to  support  an 
action  for  the  entire  sum  under  a  mortgage  which  provides  that 
the  whole  principal  debt  shall  become  due  in  case  default  be  made 
in  the  payment  of  interest ;  ^  or,  if  the  mortgage  secures  bonds  with 
interest  coupons,  it  need  not  be  averred  in  a  bill  to  foreclose  the 
mortgage  that  the  coupons  were  -presented  for  payment  at  the  office 
or  agency  at  which  they  were  payable.*  Bringing  the  suit  to  fore- 
close is  a  sufficient  demand. 

So  completely  is  the  time  of  payment  changed  by  a  provision  for 
the  forfeiture  of  credit  upon  the  breach  of  a  condition  of  the  mort- 
gage, that,  in  order  to  charge  an  indorser  of  the  mortgage  note,  de- 
mand upon  the  maker  and  notice  to  the  indorser  should  be  given  at 
the  time  the  mortgagee  elects  to  take  advantage  of  the  default  and 
declare  the  debt  to  be  due.  A  protest  afterwards  upon  the  matu- 
rity of  the  note  according  to  its  terms,  without  reference  to  the  for- 
feiture, is  of  no  effect.^     An  indorser  may  waive  any  right  he  had 

1  Chambers  v.  Marks,  93  Ala.  412,  9  So.  v.  Shepardson,  77  Cal.  345,  19  Pac.  Rep. 
Rep.  74.  583  ;  Ziel  v.  Dukes,  12  Cal.  479  ;    Hnlleck  v. 

2  Railway  Co.  v.  Sprague,  103  U.  S.  Moss,  22  Cal.  206 ;  Luckhnrt  v.  Ogden,  30 
756.  Cal.    547,  556 ;  Cummings    v.   Howard,  63 

3  Hewitt  V.  Dean,  91  Cal.  5,  617,  25  Pac.  Cal.  503. 

Rep.  753;  Whitcher  y.  Webb,  44  Cal.  127  ;        *  Savaunah   &   Memphis    R.   R.    Co.  v. 

Dean  v.  Applegarth,  65  Cal.   391,  4    Pac.    Lancaster,  62  Ala.  555. 

Rep.  375 ;  Pac.  Mutual  Life  Insurance  Co.        ^  Noell  v.  Gaines,  68  Mo.  649. 

126 


WHEN   RIGHT   TO   ENFORCE   MORTGAGE   ACCRUES.       [§§  1179  C,  1180. 

to  liave  the  note  protested,  by  promising  payment  and  applying  for 
a  postponement  of  sale.^ 

1179  c.  Corporate  mortgages  generally  provide  for  a  contin- 
uance of  default  for  a  period  of  time  before  any  right  of  sale 
accrues.^  A  trust  deed  made  by  a  manufacturing  corporation  era- 
powered  the  trustees,  on  default  of  interest  payments,  to  sell  the 
property,  "  if,  after  notice  is  served  on  the  president  of  said  com- 
pany, the  same  shall  remain  unpaid  for  six  months  after  such  de- 
fault," A  strict  compliance  with  this  provision  would  be  necessary 
to  a  valid  sale  under  the  power  ;  but  if  foreclosure  should  be  sought 
in  equity,  a  condition  of  affairs  might  be  shown  which  would  dis- 
pense with  the  necessity  of  alleging  the  giving  of  notice  as  pro- 
vided.^ The  six  months  after  maturity  was  held  not  to  be  in  addi- 
tion to  days  of  grace,  but  to  run  from  the  date  on  which  the  coupons 
were  expressed  to  be  due,  and,  although  a  default  continued  but 
two  days  more  than  six  months,  the  holders  of  such  coupons  were 
entitled  to  declare  the  principal  immediately  due.* 
•  If  a  trust  deed  of  a  corporation  provides  that  a  default  in  the 
payment  of  interest,  continued  for  six  months  after  "payment  shall 
have  been  duly  demanded,"  shall  at  the  option  of  the  trustee  ren- 
der the  whole  debt  due,  demand  of  payment  must  be  made  at  the 
principal  office  of  the  company  where  the  interest  is  payable.  A 
demand  made  at  a  branch  office  of  the  company,  under  circum- 
stances which  tended  to  show  that  the  demand  was  simply  a  device 
by  which  a  form  would  be  substituted  for  the  substance  of  a  de- 
mand, and  thus  an  advantage  be  obtained  by  the  bondholder,  is  not 
such  a  demand  as  is  called  for  by  the  deed  of  trust. ^ 

1180.  There  is  almost  always  some  provision  in  the  mort- 
gage under  which  the  right  to  foreclose  accrues  upon  a  breach 
of  any  of  the  stipulations  of  the  mortgagor  to  pay,  and  under 
whicli  also  the  mortgjigee  is  entitled  to  receive  payment  of  the 
whole  debt,  and  not  merely  of  what  is  due  at  the  time  of  sale,  if  it 
is  not  then  all  due.^     This  agreement  need  not  be  formal,  but  may 

1  Cavdwell  i-.  Allan,  33  Gratt.  160.  vision  was  made  for  issuing  scire  facias  ; 

-  Jones  on  Corporate  Bonds  and  Mort-  JIcLean  v,  Presley,  56  Ala.    211  ;  Lantry 

gages,  §  384,  and  cases  cited.  v.  French,   33  Neb.    524,   50   N.  W.    Rep. 

3  Eobinson  v.  Alabama  &  G.  Mannf.  Co.  679. 
48  Fed.  Hep.  12.  Such  a  provision  may  be  followed  by  a 

*  Alabama  &  G.  Mannf.  Co.  v.  Robinson,  further  provision  that,  in  case  of  default  in 

56  Fed.  Rep.  690.  the  payment  of   interest  on   or  before  the 

^  Levey  t?.  Union  Print  Works,  12  N.  Y.  5th  day  of  any  month   to  the  mortgagee's 

Supp.  153.  agent,  he  should  take  charge  of  the  mort- 

^  Biishfield  v.  Meyer,  10  Ohio   St.  334;  gaged  premises,  collect  the  rents,  deduct  in- 

Ilosie  V.  Gray,  71   Pa.  St.  198,  where  pro-  terest,  and  pay  the  excess  to  the  mortgagor ; 

127 


§  1181.]        WHEN    RIGHT    TO   ENFORCE   MORTGAGE   ACCRUES. 

be  gathered  from  the  expressed  intention  of  the  whole  deed.  If  it 
appears  from  the  whole  instrument  that  such  was  the  intention,  the 
sale  may  be  made  upon  any  default,  and  the  whole  debt  paid,  though 
not  all  due  ;  as  where  it  is  provided  that  on  default  it  should  be 
lawful  for  the  mortgagee  to  sell  and  execute  a  deed,  "  rendering  the 
surplus,  if  any,"  to  the  mortgagor;^  or  wliere  the  condition  of  a 
mortgage  securing  the  payment  of  several  notes  falling  due  at  dif- 
ferent times  authorizes  a  sale  upon  default  being  made  in  the 
payment  of  the  notes  "as  they  fall  due."  ^  The  parties  are  free  to 
contract  in  regard  to  the  maturity  of  the  whole  debt  as  they  may 
deem  fit. 

But  a  provision  in  a  power  of  sale  mortgage  that,  in  case  of  a 
default  for  thirty  days  in  the  payment  of  any  instalments  of  in- 
terest or  of  the  principal,  the  mortgagee  may  advertise  and  sell, 
and  apply  the  proceeds  to  the  payment  of  the  whole  debt  and 
interest  due,  only  authorizes  this  application  in  case  of  sale  under 
the  power,  and  does  not  make  the  whole  debt  due  merely  by  neg- 
lect to  pay  within  the  time  prescribed.  It  does  not  change  the 
time  when  the  instalments  of  the  mortgage  become  payable,  so  as 
to  authorize  a  suit  in  equity  to  foreclose  the  mortgage  and  to  apply 
the  proceeds  of  sale  immediately  to  the  satisfaction  of  the  mort- 
gage. If  the  mortgagee  chooses  to  proceed  in  equity,  and  the  in- 
stalment due  is  paid  before  sale,  he  can  only  apply  to  the  court 
when  future  instalments  become  due  for  a  sale  under  the  decree  to 
satisfy  them.'^ 

If  part  of  the  mortgage  notes  are  payable  unconditionally,  but 
one  is  payable  upon  condition  that  the  mortgagee  shall  procure  a 
conversance  of  certain  interests  to  the  mortgagor,  a  provision  mak- 
ing the  whole  mortgage  debt  payable  upon  any  default  in  the 
payment  of  interest  or  principal  enables  the  mortgagee  to  sell  for 
the  pa^^ment  of  the  notes  payable  unconditionally,  but  not  for  the 
note  payable  upon  condition  until  the  condition  is  performed.* 

1181.  Such  a  provision  in  the  mortgage  is  not  considered  a 
penalty,  but  an  agreement  as  to  the  time  when  the  debt  shall  be- 

and   these  provisions   are   not   in    conflict,  gage  in  the  usual  manner,  or  cause  the  said 
Stevens  v.  De  Cardona,  53  Cal.  487.  premises  or  any  part  thereof  to  be  sold," 
1  Pope  V.  Durant,  26  Iowa,  233.  was  held  not  to  authorize  a  foreclosure  for 
But  in  Bank  of  San  Luis  Obispo  v.  John-  the   principal   upon   a  default  in  the  pay- 
son,  53  Cal.  99,  a  provision  in  a  mortgage  ment  of  interest  only.     For  a  similar  deci- 
that  "in  case  of  default  in  the  payment  of  sion  see  Jones  v.  Ramsey,  3  Bradw.  303. 
said  note  or  interest,  or  in  the  performance        '^  McLean  i;.  Presley,  56  Ala.  211 ;  Meier 
of  any  of  the  conditions  hereof,  then  the  v.  Meier,  103  Mo.  411,  16  S.  W.  Rep.  223. 
mortgagee  may,  at  his  option,  either  com-        °  Holden  v.  Gilbert,  7  Paige,  208. 
mence  proceedings  to  foreclose  the  mort-        *  Gibbons  v.  Hoag,  95  111.  45. 

128 


WHEN   RIGHT    TO   ENFORCE   MORTGAGE   ACCRUES.         [§  1182. 

come  due.^  Unless  so  provided,  the  foreclosure  can  extend  no  fur- 
ther than  to  enforce  satisfaction  of  such  part  of  the  debt  as  is  due 
at  that  time,  and  for  that  purpose  to  sell  so  much  of  the  mortgaged 
property  as  may  be  necessary.  Courts  of  equity,  without  the  aid 
of  any  statutory  provision  to  that  effect,  may  generally  retain  ju- 
risdiction of  the  case  until  the  subsequent  instalments  become  due, 
and  then  decree  a  further  sale ;  and  under  the  general  doctrines 
and  practice  of  equity  may  direct  a  sale  of  the  whole  mortgaged 
estate,  though  not  required  for  the  payment  of  the  instalment  al- 
ready due,  in  case  the  property  is  indivisible  ;  ^  or  with  the  consent 
of  the  mortgagor ;  or  in  case  the  court  should  be  satisfied  that  the 
property  would  sell  for  a  better  price  if  sold  together  in  one  lot 
than  if  sold  in  parcels  at  different  times.^  But  if  the  whole  prem- 
ises are  sold  the  remedy  is  exhausted,  and  there  can  be  no  second 
sale  upon  the  maturing  of  the  principal  debt.* 

If  other  instalments  become  due  after  the  suit  is  commenced,  and 
before  final  hearing,  these  may  be  included  in  the  decree  without 
filing  a  supplemental  bill  if  they  are  set  out  in  the  original  bill,  and 
are  included  in  the  prayer  for  decree.^ 

■  1182.  Default  at  election  of  mortgagee.  —  Where  it  is  provided 
in  a  mortgage  that,  if  any  instalment  of  principal  or  interest  shall 
not  be  paid  at  the  times  stated,  the  principal  sum  secured  shall 
become  immediately  due  at  the  election  of  the  mortgagee,  or  the 
holder  of  the  mortgage,  the  whole  debt  is  not  due  until  the  mort- 
gagee or  other  holder  has  exercised  his  election  ;  and  a  sale  of  the 
property  free  from  the  mortgage  before  this  could  not  be  authorized 
by  an  act  of  the  legislature.^  "  Immediately  due  "  means  immedi- 
ately upon  or  after  the  holder's  election  ;  and   he  is  not  bound  to 

1  Richards    v.   Holmes,    18   How.    143;  346;  Goodman  v.  Cinn.  &  Chicago  R.  R. 

Noyes  v.  Anderson,  124  N.  Y.  175,26  N.  E.  Co.  2  Disney,  176;  Savannah  «&  Memphis 

Rep.  316,  per  Parker,  J. ;  Cecil  v.  Dynes,  2  R.  R.  Co.  v.  Lancaster,  62  Ala.  5.55,  565. 
Ind.  266;  Greenman  v.  Pattison,  8  Blackf.         Contra,  Tiernan  v.  Hiuman,  16  HI.  400; 

465;  Hunt  v.  Harding,  11  Ind.  245;  Hough  Hoodless  i-.  Reid,  112  Hi.  105. 
I".  Doyle,  8  Blackf.  300 ;  Smart  v.  McKay,        -  Bank  of  Ogdensburg  v.  Arnold,  5  Paige, 

16  Ind.  45;  Taber  v.  Cincinnati,  &c.  R.  R.  38. 

Co.  15  Ind.  459;    Magruder  v.  Eggleston,        3  Caufman    v.    Sayre,  2   B.    Mon.   202; 

41  Miss.  284;  Grattan  v.  Wiggins,  23  Cal.  Adams  v.  Essex,  1  Bibb,  149,  4  Am.  Dec. 

16;  Jones  o.  Lawrence,  18  Ga.  277;    An-  623;  Peyton  i-.  Ayres,  2  Md.  Ch.  64;  Wylie 

drews  v.  Jones,  3  Blackf.  440;  Schooley  v.  v.  McMakiu,  2  Md.  Ch.  413. 
Remain,  31    Md.  574,    100  Am.  Dec.  87;        *  Poweshiek  Co.  r.  Dennison,  36  Iowa, 

Mobray  v.  Leckie,  42  Md.  474;  Salmon  v.  244,  14  Am.  Rep.  521 ;  Buford  v.  Smith,  7 

Clagett,  3  Bland,  125;  Adams  v.  Essex,  1  Mo.  489. 

Bibb,  149,  4  Am.  Dec.  623  ;  Baker  t«Leh-        ^  Magruder  v.  Eggleston,  41  Miss.  284. 
man,  Wright,  522;  Morgenstern  y.  Klees,        ^  Randolph  v.  Middleton,  26  N.  J.  Eq. 

30  111.   422  ;    Stillwell  r.  Adams,  29  Ark.  543. 

VOL.   II.  9  129 


§  1182  a.]       WHEN    RIGHT    TO   ENFORCE   MORTGAGE   ACCRUES. 

elect  immediately  after  default.^  Such  a  provision  does  not  simply 
render  the  notes  due  for  the  purposes  of  foreclosure  in  case  the  op- 
tion is  exercised,  but  for  all  purposes.^  The  mortgagee  may  exer- 
cise his  option  promptly  upon  a  default  in  the  payment  of  any 
instalment  of  interest,  although  the  mortgage  also  contains  a  pro- 
vision that  if  the  interest  is  not  paid  semi-annually  it  shall  be  com- 
pounded semi-annually,  and  the  fact  that  he  has  compounded  the 
interest  or  prior  instalments  does  not  affect  his  right.^ 

An  option  that  the  whole  mortgage  debt  shall  become  due  im- 
mediately upon  default  in  the  payment  of  the  interest  as  therein 
provided,  in  order  to  be  available  as  against  an  indorser  of  the 
mortgage  note,  must  be  exercised  within  a  reasonable  time  after 
default,  and  a  delay  of  seven  months  before  attempting  to  exercise 
the  option  is  unreasonable.^ 

But  a  delay  of  three  months  after  default  in  the  interest  is  not  a 
waiver  of  the  right  to  exercise  the  option,  when  the  delay  is  caused 
by  reason  of  defendant's  request  to  be  allowed  a  few  days  additional 
in  which  to  paj'  the  interest.^ 

An  assignee  of  part  of  the  notes  secured  by  a  mortgage  contain- 
ing such  provision  cannot  alone  exercise  such  option.  It  is  an  indi- 
visible condition,  to  enforce  which  all  parties  interested  in  the  mort- 
gage security  must  unite.^ 

Where  the  mortgagee  has  the  option  to  consider  the  entire  debt 
matured  on  any  default,  it  is  not  necessar}^  that  any  particular  form 
of  expression  should  be  used  for  the  purpose  of  declaring  such 
option.  A  recital  in  a  mortgagee's  deed,  under  a  power  of  sale 
in  the  mortgage,  that  "  having  elected  to  declare  said  mortgage  due 
and  payable,  as  by  said  mortgage  he  was  authorized  to  do,  accord- 
ing to  the  terms  and  conditions  thereof,  he  had  proceeded  to  exercise 
the  power,"  is  sufficient.'' 

1182  a.  Generally  no  notice  of  the  mortgagee's  election  to 
consider  the  whole  debt  due  is  necessary.  His  proceeding  to 
enforce  the  mortgage  sufficiently  shows  his  election.^     An  assignee 

1  Wheeler  &  Wilson  Manuf.  Co.  v.  How-        °  Hewitt  v.  Dean,  91  Cal.  5,  617,  27  Pac. 
ard,  28  Fed.  Rep.  741  ;  Hewitt  v.  Deau,  91     Rep.  42.3,  25  Pac.  Rep.  753. 

Cal.  5,  617,  27  Pac.  Rep.  423,  25  Pac.  Rep.  ^  Marine  Bank  v.  International  Bank,  9 
753.  Wis.  57. 

2  Wheeler  &  Wilson  Manuf.  Co.  v.  How-        "  Harper  v.  El}-,  56  111.  179. 

ard,  28  Fed.  Rep.  741 ;  Detweiler  i-.  Breck-  »  Harper  v.  Ely,  56  111.  179;  Heath    v. 

enkamp,  83  Mo.  45.  Hall,  60  111.  344  ;  Princeton  Loan  &  Trust 

3  Campbell  v.  West,  86  Cal.  197,  24  Pac.  Co.  v.  Munson,  60  111.  371 ;  Cundiff  v.  Bro- 
Rep.  1000.  kaw,"^  Bradw.  147;  Hoodless  v.  Reid,  112 

*  Crossmore  i\  Page,  73  Cal.  213,  14  Pac.    III.  105;  Johnson  v.  Van  Velsor,  43  Mich. 
Rep.  787.  208,  5  N.  W.  Rep.  265 ;  English  i-.  Carney, 

130 


WHEN   EIGHT    TO   ENFORCE    MORTGAGE   ACCRUES.        [§  1182  a. 

of  the  mortgagee  inay  also  exercise  this  option  in  the  same  way 
as  the  mortgagee  himself  may. 

In  Wisconsin,  however,  and  perhaps  elsewhere,^  it  is  held  that 
notice  of  the  mortgagee's  election  to  consider  the  whole  sum  due 
must  be  given  before  the  bringing  of  a  suit  for  the  whole  sum.^ 
The  option  must  be  declared  within  a  short  and  reasonable  time 
after  the  right  to  do  so  has  accrued  ;  and  after  a  delay  of  six  weeks 
it  has  been  held  under  some  circumstances  to  be  too  late  to  give  an 
effectual  notice.^  A  notice  given  by  an  attorney  of  the  mortgagee 
is  sufficient,  though  it  does  not  show  the  authority  on  its  face.  If 
the  mortgagor  at  the  time  of  receiving  notice  refuses  to  pay  the 
mortgage,  he  cannot  object  that  the  mortgagee  resides  out  of  the 
State,  and  no  person  is  designated  to  whom  payment  could  be  made.* 
Such  a  provision  being  unusual,  an  attorney  or  officer  of  a  corpo- 
ration having  general  authority  to  execute  a  mortgage,  the  terms 
and  conditions  of  which  are  not  specified,  would  have  no  right  to 
insert  it ;  but  a  mortgage  so  made  would  not  thereby  be  void  ex- 
cept as  to  such  provision.^ 

A  notice  in  writing  by  the  mortgagee  declaring  his  election  is 
sufficient  if  left  at  the  residence  or  place  of  business  of  the  mort- 
gagor in  his  absence,  with  a  person  of  discretion  in  charge.^ 

Inasmuch  as  grace  is  not  allowed  on  an  instalment  of  interest 
alone,  when  by  the  terms  of  the  note  interest  alone  is  due  on  the 
first  day  of  a  month,  and,  on  default  of  payment  thereof  within 
ten  days  after  it  becomes  due,  the  mortgagee  has  his  option   to  de- 

25  Mich.   178;   Buchanan  v.  Berkshire  L.  The  case  of  Dean  u.  Applegarth,  65  Cal. 

Ins.  Co.  96  Ind.  510;  Pope  i'.  Hooper,  6  Neb.  391,4  Pac.  Rep.   375,  differed  in  the  fact 

178;  Fletcher  y.  Daugherty,  13  Neb.  224,  13  that  in  that  case  it  was  provided   that,  in 

N.  W.  Rep.  207  ;  Coad  v.  Home  Cattle  Co.  case  of  default,  the  rate  of  interest  upon  the 

32  Neb.  761,  49  N.  W.  Rep.  757;  Alabama  note  should  be  increased  at  the  option  of 

&  G.  Mauuf.  Co.  V.  Robinson,  56  Fed.  Rep.  the   holder,  and   the   court  held    that   this 

690;  Lowenstein  v.  Phelan,  17  Neb.  429,  22  option  must  have  been  exercised  and  man- 

N.  W.  Rep.  561 ;  Hewitt  v.  Dean,  91  Cal.  5,  ifested  in  some  way  by  the  plaintiff  before 

617,27   Pac.  Rep.  423,25  Pac.  Rep.  753  ;  it  could  have  effect. 

Whitcher  v.  Webb,  44  Cal.  127  ;  Leonard  v.  ^  Swett  v.  Stark,  31  Fed.  Rep.  858. 

Tyler,  60  Cal.  299;    Redman   v.   Purring-  2  Basse  y.  Gallegger,  7  Wis.  442,  76  Am. 

ton,  65  Cal.  271 ;  Hodgdon  u.  Davis,  6  Dak.  Dec.    225;  Marine   Bank   v.  International 

21,  50  N.  W.  Rep.  478  ;  Chase  v.  First  Nat.  Bank,  9  Wis.  57. 

Bank  (Tex.),  20  S.  W.  Rep.  1027  ;  Sichler  3  Wilson  v.  Winter,  6  Fed.  Rep.  16. 

1-.   Look,  93  Cal.  600,  29  Pac.  Rep.  220;  *  Rosseel  v.  Jarvis,  15  Wis.  571. 

Warwick  Iron  Co.  v.  Morton,  148  Pa.  St.  ^  Jesup  v.  City  Bank  of  Racine,  14  Wis. 

72,  23  Atl.  Rep.  1065  ;  Huling  v.  Drexell,  7  331. 

Watts,  126;  Holland  v.  Sampson  (Pa.),  6  ^  Monroe  v.  Fohl,  72  Cal.  568,  14  Pac. 

Atl.  Rep.  772.  Rep.  514. 

131 


§§  1183-1184.]        WHEN   RIGHT   TO   ENFORCE   MORTGAGE   ACCRUES. 

clare  the  whole  mortgage  debt  due,  notice  of  his  option  given   on 
the  twelfth  of  said  month  is  not  premature.^ 

1183.  A  provision  forfeiting  credit  may  affect  foreclosure  pro- 
ceedings only,  without  varying  the  obligations  expressed  on  the 
face  of  the  bonds  or  notes  secured.^  Thus,  a  covenant  in  the  mort- 
gage of  a  railroad  company  to  trustees  to  secure  bondholders,  "that 
the  principal  sum  secured  by  said  mortgage  shall  become  due  in 
case  the  interest  on  the  bonds  remains  unpaid  for  four  months,"  if 
not  inserted  in  the  bonds,  can  onl}'  be  taken  advantage  of  by  the 
trustees  for  the  foreclosure  of  the  mortgage  according  to  the  terms 
of  the  authority  conferred  upon  them,  and  not  by  an  individual 
bondholder;  although  upon  the  bonds  there  was  a  certificate  signed 
by  the  trustees,  that  such  a  provision  was'contained  in  the  mortgage. 
The  mortgage  could  be  foreclosed  only  upon  the  written  request  of 
the  holder  of  a  mnjority  in  amount  of  the  bonds  ;  and  it  was  con- 
strued to  mean  that  the  trustees  alone  could  enforce  it,  and  not  that 
an  individual  solely  or  jointly  with  others  should  have  any  right  to 
do  so.'^ 

1183  a.  The  mortgagor  cannot  take  advantage  of  a  stipula- 
tion that  the  whole  mortgage  shall  become  due  upon  a  default 
in  the  payment  of  any  instalment  of  interest  or  principal.  Equity 
will  not  permit  him  to  take  advantage  of  his  own  wrong,  and  upon 
such  a  default  pay  off  the  whole  mortgage  debt.  This  provision  is 
for  the  benefit  of  the  mortgagee,  and  not  for  the  benefit  of  the 
mortgagor,  unless  he  is  given  the  option  of  making  payment  upon 
any  such  default.^ 

1184.  Provisions  against  forfeiture.  —  Where  it  is  stipulated 
as  part  of  the  mortgage  contract,  that  "  the  loan  shall  not  be  called 
in  so  long  as  the  mortgagor  continues  to  punctually  pay  the  interest 
semi-annually,  and  the  value  of  the  estate  pledged  shall  be  double 
the  amount  of  the  debt,  until  the  expiration  of  two  yeai's  after  the 
service  of  a  written  notice  stating  the  time  when  payment  will  be 
required,"  no  foreclosure  can  be  had  until  this  provision  is  complied 
with  and  the  notice  given. ^     In  like  manner,  if  the  mortgage  con- 

1  Macloon  v.  Smith,  49  Wis.  200,  201,  5  1032;  Fletcher  v.  Daugherty,  13  Neb.  224, 
N.  W.  Rep.33G.  See  Alabama  &  G.  Manuf.  13  N.  W.  Rep.  207.  This  last  case  calls 
Co.  V.  Robinson,  56  Fed.  Rep.  690.  in  question  the  case  of  First  Nat.  Bank  v. 

2  McClelland  v.  Bishop,  42  Ohio  St.  113  ;  Peck,  8  Kaus.  660,  in  which  it  was  held  that 
Mallory  v.  West  Shore  R.  R.  Co.  3  Jones  &  the  mortgagor  might  take  advantage  of  the 
S.  174.  The  bonds  in  this  case  did  not  refer  provision  as  against  one  who  had  taken  the 
to  the  mortgage.  mortgage  notes  after  maturity,  and  there- 

3  Mallory  v.  West  Shore  Hudson  Riv.  R.  fore  subject  to  the  equities  existing  between 
R.  Co.  3  J.  &  Sp.  174.  the  original  parties. 

4  Cox  V.  Kille  (N.  J.  Eq.),  24  Atl.  Rep.        &  See  §  1178 ;  Belmont  Co.  Branch  Bank 

132  V.  Price,  8  Ohio  St.  299. 


WHEN   RIGHT    TO   ENFORCE   MORTGAGE   ACCRUES.         [§  1185. 

tains  the  usual  provision  that  the  several  notes  secured  by  it,  though 
maturing  at  different  dates,  shall  not  become  due  and  the  mortgage 
shall  not  be  foreclosed  till  the  maturity  of  the  note  made  payable 
latest,  no  judgment  can  be  recovered  upon  any  of  the  notes  until 
the  last  has  matured.  The  notes  and  deed  are  to  be  read  together 
as  one  instrument.^ 

1185.  The  court  has  no  power  to  relieve  a  mortgagor  from  a 
forfeiture  of  condition  that  the  whole  principal  shall  become  due 
at  the  election  of  the  mortgagee  upon  a  failure  to  pay  the  interest, 
or  to  .order  a  stay  of  proceedings  until  a  further  default,^  unless 
fraud  or  improper  conduct  on  the  plaintiff's  part  is  proved  ;  as  in 
case  he  has  prevented  the  mortgagor  from  ascertaining  the  owner  of 
the  mortgage,  and  making  payment  to  him  within  the  time  fixed 
by  the  condition  ;^  or  the  mortgagor  has  made  an  honest  but  unsuc- 
cessful effort  to  find  the  mortgagee  and  tender  him  the  interest.* 
The  mortgagor,  having  negligently  permitted  the  time  to  pass,  and 
the  whole  debt  thereby  to  become  due,  cannot  relieve  the  forfeiture 
by  paying  into  court  the  interest  or  instalment  on  which  the  for- 
feiture occurred.^  But  if  after  a  default  in  the  payment  of  taxes 
the  mortgagor  pays  the  same  without  prejudice  to  the  mortgagee, 
and  before  suit  is  brought  to  declare  the  debt  due  because  of  the 
default,  sucli  payment  is  a  bar  to  the  suit.^ 

If  the  only  questions  be,  whether  a  tender  had  been  properly 
made  at  any  time,  and,  if  so,  whether  made  within  the  time  prescribed 
by  the  condition,  these  must  be  determined  upon  the  trial  of  the 
foreclosure  action.^  But  the  forfeiture  will  not  be  enforced  against 
one  who  in  good  faith  and  upon  reasonable  grounds  denies  his  lia- 
bility to  pay  interest,  or  claims  that  he  has  paid  it,  even  if  it  turns 
out,  upon  trial  of  the  matter,  that  he  was  in  error  about  it.^ 

Under  a  contract  by  a  mortgagee  with  the  mortgagor,  a  woman 
of  seventy  years  of  age,  that  he  would  not  foreclose  the  mortgage  in 
her  lifetime,  provided  no  interest,  taxes,  or  assessments  remained 
unpaid  for  more  than  thirty  days,  the  court  will  not  allow  the  mort- 
gagee to  take  advantage  of  the  non-payment  of  a  sewer  assessment 
within  the  time  specified,  when  it  appears  that  the  mortgagor  did 

1  Brownlee  v.  Arnold,  60  Mo.  70.  And  Rep.  233;  Lynch  v.  Cunningham,  6  Abb. 
see  Noell  v.  Gaines,  68  Mo.  649,  8  Cent.  L.    Pr.  94  ;  Asendorf  v.  Meyer,  8  Daly,  278. 

J.  353.  ^  Ferris    v.    Ferris,    28    Barb.    29.     See 

2  Bennett  v.  Stevenson,  .53  N.  Y.  508  ;  Noyes  v.  Anderson,  124  N.  Y.  175,  26  N.  E. 
Buchanan  v.  Berkshire  L.  Ins.  Co.  96  Ind.     Rep.  316,  per  Bradley,  J. 

510,521.  6  Smalley  v.  Renken  (Iowa),  52  N.  W. 

8  Noyes  v.  Clark,  7  Paige,  179,  32  Am.  Rep.  507. 

Dec.  620.  ■'  Bennett  v.  Stevenson,  .53  N.  Y.  508. 

*  Hale  V.  Patton,  60  N.  Y.  233,  19  Am.  »  Wilcox  v.  Allen,  36  Mich.  160. 

133 


§  1186.]        WHEN  RIGHT   TO   ENFORCE  MORTGAGE   ACCRUES. 

not  know  of  the  assessment  till  after  that  time,  and  that  she  paid  it 
as  soon  as  she  learned  of  it.^ 

The  mortgagee  will  not  be  allowed  to  take  advantage  of  the 
mortgagor's  failux-e  to  pay  an  instalment  of  interest  when  he  had 
the  money  for  such  payment  ready  at  the^  usual  place  of  payment, 
and  the  mortgagee  knew  this  fact,  but  failed  to  notify  the  mort- 
gagor that  he  required  payment  elsewhere.^ 

If  the  mortgagor's  failure  to  pay  the  interest  as  it  matured  is  due 
to  the  mortgagee's  own  act,  the  latter  will  not  be  allowed  to  take 
advantage  of  it  by  claiming  the  whole  mortgage  debt  to  be  due. 
Thus,  if  the  mortgagee  has  agreed  to  call  at  the  mortgagor's  office 
for  the  interest,  the  latter  is  excused  from  seeking  the  mortgagee 
to  make  payment,  and  the  mortgagee  cannot  exact  the  penalty  for 
such  failure.^ 

1186.  Waiver  of  default  of  credit.  —  When  a  mortgagee  has 
made  his  election  to  regard  the  principal  sum  due  under  a  stip- 
ulation that  he  shall  have  this  election  upon  the  non-payment  of 
interest  for  thirty  days  after  it  becomes  due,  he  cannot  be  compelled 
to  waive  this  provision  and  accept  the  interest.  Undoubtedly  an 
unconditional  acceptance  of  the  interest  in  default  would  be  a 
waiver  of  the  default;*  but  the  acceptance  of  an  instalment  of  the 
principal  already  due  would  not  be  such  a  waiver  ;^  nor  would 
the  commencement  of  a  foreclosure'  suit  prior  to  the  expiration 
of  the  time  after  which  the  mortgagee  may  elect  that  the  whole 
amount  shall  become  due;  he  may  after  that  time  file  an  amended 
and  supplemental  complaint,  and  proceed  for  the  collection  of  the 
whole  amount.*^  An  acceptance  of  an  instalment  by  an  agent  of  the 
mortgagee  without  his  authority  does  not  have  the  effect  to  restore 
the  contract.'^ 

A  forfeiture  is  waived  by  a  parol  extension  of  the  time  of  pay- 
ing the  interest ;  and  after  a  mortgagee  has  ratified  such  extension 
made  by  an  agent,  a  subsequent  similar  extension  made  by  the 
agent  would  be  deemed  a  waiver  by  the  mortgagee,  and  his  suit  at 
law  to  enforce  the  note  or  bond  on  the  ground  of  such  forfeiture 

1  Noyes  v.  Anderson,  124  N.  Y.  175,26  Barron,  18  Hun,  414;  Moore  v.  Sargent, 
N.  E.  Rep.  316,  14  Daly,  526,  1  N.  Y.  112  Ind.  484,  14  N.  E.  Rep.  466 ;  Alabama 
Supp.  5.  See,  also,  Shaw  v.  Wellman,  13  &  G.  Manuf.  Co.  v.  Robinson,  56  Fed.  Rep. 
N.  Y.  Supp.  527.  690. 

2  Union  Mut.  L.  Ins.  Co.  v.  Union  Mills  ^  Moore  v.  Sargent,  112  Ind.  484,  14  N. 
Plaster  Co.  37  Fed.  Rep.  286.  E.  Rep.  466. 

3  Foerst    v.  Masonic  Hall  Ass'n  (Cal.),  6  Malcolm  v.  Allen,  49  N.  Y.  448. 

31  Pac.  Rep.  903.  7  gjoat  v.  Bean,  47  Iowa,  60,   7  Reporter, 

*  Langridge  w.  Payne,  2  John.  &  H.  423  ;  237.  And  see  Smalley  y.  Renken  (Iowa), 
In  re  Taaffe,  14  Ir.  Ch.  R.  347;  Lawson  v.    52  N.  W.  Rep.  507. 

134 


WHEN   RIGHT    TO   ENFORCE   MORTGAGE   ACCRUES.        [§  1186. 

would  be  enjoined.i  If  the  mortgagor  sets  up  as  an  excuse  for 
failure  to  pay  at  the  time  specified  a  parol  agreement  with  the  mort- 
gagee that  the  latter  would  give  him  twenty  days'  additional  time, 
he  should  make  tender  of  the  interest  in  his  answer,  and  should  pay 
the  amount  into  court ;  otherwise,  even  if  the  extension  should  be 
regarded  as  a  waiver  of  forfeiture  of  the  principal  debt,  the  plaintiff 
would  be  entitled  to  a  judgment  of  foreclosure  for  the  amount  of 
interest  due  and  for  costs.2 

A  payment  of  a  sum  of  money  by  the  mortgagor  for  an  exten- 
sion of  the  time  of  payment  for  a  term  of  years  does  not  prevent 
the  mortgagee  from  taking  advantage  of  a  subsequent  forfeiture 
within  that  term  ;  although  such  payment  must  be  credited  upon 
the  mortgage  debt,  it  is  not  appropriated  to  the  interest  so  as  to 
prevent  a  forfeiture.^ 

A  provision  in  a  mortgage  by  a  railroad  company,  that  the  trus- 
tees shall  sell  the  mortgaged  property  upon  the  request  of  the 
holders  of  a  certain  amount  of  the  bonds  secured,  does  not  pre- 
vent a  suit  upon  a  bond  which  has  become  due  by  default  accord- 
ing to  the  terms  of  the  mortgage  and  bond.  The  enforcement  of 
the  bond  and  of  the  mortgage  may  depend  upon  different  circum- 
stances.* 

The  fact  that  no  notice  had  been  given  to  the  mortgage  debtor 
of  the  time  of  payment  of  the  interest  on  such  a  mortgage  will  not 
avail,  upon  tender  merely  of  the  interest,  to  restrain  the  proceeding 
for  the  entire  debt.^ 

It  is  no  excuse  for  the  non-payment  of  the  money  that  the  mort- 
gagee died  eight  days  before  the  interest  became  due,  and  the  debtor 
urged  feelings  of  delicacy  about  intruding  with  affairs  of  business 
so  soon  afterwards,  it  appearing  that  he  made  no  attempt  to  pay 
the  money,  and  paid  no  attention  to  the  matter  until  it  was  de- 
manded of  him  some  weeks  afterwards.  He  should  have  made  in- 
quiry within  a  reasonable  time  whether  there  was  any  one  author- 
ized to  receive  the  money .^ 

A  forfeiture  of  credit  is  waived  by  accepting  interest  after  the 
expiration  of  the  time  at  which  the  holder  of  the  mortgage,  by  its 
terms,  is  entitled  to  a  forfeiture  of  the  principal  sum.  His  receipt 
acknowledging  the  payment  of  interest  as  of  the  day  on  which  it 

1  Manning  v.  Tuthill,  30  N.  J.  Eq.  29.  5  Warwick  Iron  Co.  v.  Morton,  148  Pa. 

2  Asendorf  v.  Meyer,  8  Daly,  278.  St.  72.  2.3  Atl.  Rep.  106.5. 

8  Church  V.  Maloy,  9  Hun,  148.  o  Mobray  v.  Leckie,  42  Md.  474. 

*  Philadelphia  &  Balto.  Cent.  R.  R.  Co. 
V.  Johnson,  54  Pa.  St.  127, 

135 


§  1187.]        WHEN   RIGHT    TO   ENFORCE   MORTGAGE   ACCRUES. 

fell  due  is  inconsistent  with  any  claim  of  forfeiture. ^  But  under 
a  provision  in  a  mortgage  that  in  case  the  interest  be  duly  and 
punctually  paid  the  principal  may  remain  for  two  years,  or  any 
other  definite  period,  if  an  instalment  of  interest  becomes  due  and 
is  not  paid  upon  demand,  and  the  mortgagee  thereupon  demands 
payment  of  principal  and  interest,  the  mortgagee  does  not  by  a  sub- 
sequent acceptance  of  the  interest  waive  his  right  to  call  in  the 
principal.^  If  after  a  default  in  the  payment  of  interest  on  a  prior 
mortgage  which  gave  a  subsequent  mortgagee  a  right  to  foreclose 
for  the  whole  mortgage  debt,  such  mortgagee  accepts  payments  of 
interest,  and  at  the  time  of  commencing  a  foreclosure  suit,  and  for 
a  long  time  prior  thereto,  there  was  no  existing  default,  this  having 
been  removed  by  payments  on  the  prior  mortgage,  a  foreclosure 
will  be  refused,  and  a  judgment  will  be  given  relieving  the  mort- 
gagor of  any  forfeiture.^ 

1187.  When  a  guarantor,  or  surety,  or  indorser,  is  secured 
by  a  mortgage,  he  cannot  foreclose  until  he  has  paid  the  obli- 
gation he  became  liable  upon  ;  *  and  a  mortgage  given  to  indem- 
nify one  against  damages  occasioned  by  the  negligence  of  the  mort- 
gagor or  other  person  cannot  be  foreclosed  until  judgment  has  been 
recovered  for  the  negligence,  because  it  i*S  not  certain  before  this 
that  the  mortgagee  has  been  damnified.^  Where  a  mortgage  was 
given  to  secure  the  performance  of  a  contract  of  the  mortgagor  to 
consign  all  the  goods  he  should  manufacture  for  three  years  to  the 
mortgagee,  who  accepted  drafts  for  the  mortgagor's  accommodation, 
and  was  obliged  to  pay  them,  it  was  held  that  upon  the  insolvency 
of  the  mortgagor  the  mortgagee  was  entitled  to  an  immediate  fore- 
closure, because  the  agreement  contemplated  a  continuous  perform- 
ance of  it,  and  the  assignee  could  not  carry  on  the  business  as 
stipulated.*' 

An  indorser  for  accommodation  who  is  secured  for  his  liability  by  a 
mortgage  need  not  wait  until  the  note  indorsed  by  him  is  protested 
before  paying  it,  in  order  to  have  the  benefit  of  his  mortgage  se- 

1  Sire  v.  AVightman,  25  N.  J.  Eq.  102;  126;  Kramer  v.  Farmers'  &  Mechanics' 
Smalley  r.  Renkeu  (Iowa),  52  N.  W.  Rep.  Bank,  15  Ohio,  253;  McConnell  v.  Scott, 
507.  15  Ohio,  401,  45  Am.  Dec.  583;  Ohio  Life 

2  Keene  v.  Biscoe,  L.  R.  8  Ch.  D.  201  ;  Ins.  &  Trust  Co.  v.  Recder,  18  Ohio,  35; 
Langridge  y.  Payne,  2  John.  &  H.  423,  dis-  Lewis  v.  Richey,  5  Ind.  152;  Francis  v. 
tinguished,  as  the  mortgagee's  notice  there  Porter,  7  Ind.  213. 

might  be  regarded  as  conditional.     See  ob-  ^  Grant  v.  Ludlow,  8  Ohio  St.  1 ;  Tilford 

servation  in  In  re  Taaffe,  14  Ir.  Ch.  347,  v.  James,  7  B.  Men.  336;  Planters'  Bank  v. 

that  the  latter  case  should  be  overruled.  Douglass,  2  Head,  699. 

3  Gilbert  v.  Shaw,  17  N.  Y.  Supp.  621.  6  Harding  v.  Mill  River  Woollen  Manuf. 
*  Ketchum   v.   Jauncey,    23   Conn.   123,  Co.  34  Conn.  458,  461. 

136 


WHEN   RIGHT   TO   ENFORCE  MORTGAGE   ACCRUES.        [§  1188. 

curity;  but  upon  being  informed  by  the  principal  debtor  that  he 
could  not  and  should  not  pay  the  note,  such  indorser  may  pay  the 
note  in  time  to  save  it  from  going  to  protest,  and  such  payment  will 
be  within  the  condition  of  the  mortgage.^ 

The  condition  of  a  mortgage  given  to  indemnify  a  surety  is  not 
broken  until  the  surety  has  been  obliged  to  pay  the  debt,  and  there- 
fore his  right  to  foreclose  does  not  accrue  until  that  time.^  It  is 
sufficient,  however,  if  he  has  paid  a  part  of  the  debt.^  Neither  is 
it  necessary  that  the  amount  of  the  damages  sustained  by  the  mort- 
gagee should  be  determined  by  a  suit  at  law  before  filing  a  bill  to 
foreclose.'* 

1188.  When  the  condition  is  to  pay  or  to  save  harmless,  the 
mortgagee  may  foreclose  on  the  mortgagor's  failure  to  pay;^  al- 
though when  the  condition  is  merely  to  save  harmless  he  cannot 
foreclose  until  he  has  suffered  loss.  If  the  condition  be  to  pay  and 
save  harmless,  it  is  broken  upon  failure  to  pay. 

A  condition  that  the  mortgagor  "shall  jDromptly  pay  and  dis- 
charge all  notes  and  papers  of  his  upon  which  the  mortgagees  shall 
become  indorsers  or  acceptors,  together  with  all  the  interest,  costs, 
and  charges  thereon,  so  as  to  save  said  mortgagees  harmless  by  rea- 
son of  their  connection  with  such  paper,"  is  broken  at  once  on  a 
failure  to  pay  at  maturity,  and  the  mortgagee  may  foreclose  with- 
out further  action.  Although  the  power  of  sale  in  this  mortgage 
was  limited  to  the  case  of  the  mortgagee  being  damnified  by  pay- 
ing the  debts  himself,  the  mortgage  was  foreclosed  in  equity.  The 
power  of  sale  need  not  be  coextensive  with  the  condition  of  the 
mortgage ;  and  although  that  remedy  cannot  be  used  for  a  breach 
not  covered  by  the  power,  the  remedy  in  equity  is  open  upon  every 
breach  of  the  condition. ^ 

When  a  mortgage  is  given  to  secure  the  payment  of  the  note  of  a 
third  person,  which  the  mortgagor  transfers  to  the  mortgagee  at  the 
time  of  executing  the  mortgage,  the  mortgagee  may  foreclose  the 
mortgage  upon  the  happening  of  a  breach,  without  first  prosecuting 
his  remedy  against  the  maker  of  the  note.'' 

1  National  State  Bank  v.  Davis,  24  Ohio  *  Eodgers  v.  Jones,  1  McCord  Ch.  221. 
St.  190.  5  Thurston  v.  Prentiss,  1  Mich.  193  ;  Dye 

2  Colvin  V.  Buckle,  8  M.  &  W.  680;  r.  Mann,  10  Mich.  291 ;  Butler  i'.  Ladue,  12 
Rodman  v.  Hedden,  10  Wend.  499,  500;  Mich.  173;  Francis  i'.  Porter,  7Ind.  213; 
Piatt  V.  Smith,  14  Johns.  368;  Powell  v.  Ellis  y.  Martin,  7  Ind.  652 ;  Lewis  ?;.  Richey, 
Smith,  8  Johns.  249;  M'Lean  v.  Ragsdale,  5  Ind.  152. 

31  Miss.  701 ;  Shepard  v.  Shepard,  6  Conn.  «  Butler  v.  Ladue,  12  Mich.  173. 

37;  Pond  y.  Clarke,  14  Conn.  334.  7  Ballenger    v.    Oswalt,    26    Ind.    182; 

8  Beckwith   v.   Windsor  Manuf,  Co.  14  O'Haver  v.  Shidler,  26  Ind.  278. 
Conn.  594. 

137 


§§  1189,  1190.]      WHEN    RIGHT    TO   ENFORCE   MORTGAGE    ACCRUES. 

1189.  A  mortgagee  may  be  estopped  from  foreclosing  his 
mortgage  by  an  agreement  with  the  mortgagor,  upon  which  the 
latter  has  acted,  that  the  mortgage  should  never  be  enforced  against 
him ;  and  even  without  any  positive  agreement,  if  the  mortgagee, 
by  giving  the  mortgagor  to  understand  that  he  should  be  released 
of  the  burden  of  the  mortgage,  intentionally  leads  the  mortgagor  to 
act  in  such  a  manner  that  he  will  be  seriously  prejudiced  by  the 
mortgagee's  not  carrying  out  the  understanding.^ 

A  person  being  desirous  of  purchasing  land  upon  which  there 
"was  a  mortgage,  but  being  unable  to  make  the  payments  at  the 
times  specified  in  the  mortgage,  called  upon  the  holder  of  it,  who 
agreed  verbally  that  if  the  proposed  purchaser  would  pay  two  hun- 
dred dollars  the  ensuing  spring,  and  interest  on  all  sums  remaining 
unpaid  annually  thereafter,  and  would  make  certain  improvements, 
he  would  extend  the  time  of  payment  of  the  mortgage  for  twenty 
years.  The  purchase  was  accordingly  made  and  all  the  require- 
ments complied  with,  except  that  the  purchaser  failed  for  two  years 
to  pay  the  interest.  It  was  decided  that  the  time  of  payment  was 
extended  by  the  verbal  contract,  and  that  there  was  no  default  in 
the  payment  of  the  principal,  although  there  might  have  been  a 
foreclosure  for  the  interest  remaining  unpaid.^ 

It  is  held,  however,  that  an  agreement  made  after  the  maturity 
of  a  mortgage  note  to  extend  the  time  of  payment  is  no  bar  to  a 
foreclosure,  before  the  expiration  of  the  period  of  extension,  of  the 
mortgage  securing  the  note,  the  only  remedy  for  violation  of  the 
agreement  being  an  action  for.  damages.  Such  an  agreement  is,  in 
substance,  an  agreement  not  to  sue  within  that  time,  and  cannot  be 
pleaded  in  bar  of  an  action  brought  within  the  time.^ 

1190.  If  the  time  of  payment  of  a  mortgage  be  extended, 
the  right  to  foreclose  is  of  course  suspended  until  the  expiration 
of  the  extended  term.  The  extension  of  the  time  of  payment,  if 
binding,  has  the  effect  in  equity  of  modifying  the  original  condi- 
tion of  the  mortsfasfe  to  the  same  extent  as  if  the  terms  of  the  new 
agreement  were  incorporated  into  the  condition.^     A  verbal  agree- 

1  Faxton   v.   Faxon,  28  Mich.    159.     In  close  the  mortgage.     See  Fausel  y.  Schabel, 

this  case  the  mortgagee  having  persuaded  a  22  N.  J.   Eq.   126,  for  circumstances   and 

son  of  the  mortgagor,  after  the  death  of  the  agreement  not  amounting  to  an  agreement 

latter,  to  remain  upon  the  farm  and  sup-  to  extend;  Burke  v.  Grant,  116  111.  124. 

port  his  father's   family,  upon  a   promise  "  Burt  v.  Saxton,  1  Hun,  551. 

that  the  mortgage  should  not  be  enforced  ^  Ayers  t'.  Hamilton,  131  Ind.  98,  30  N.  E. 

against  the  family,  was  not  allowed,  after  Rep.  895. 

the  son  had  cultivated  the  farm  and  sup-  *  Union  Cent.  L.  Ins.  Co.  v.  Bonnell,  35 

ported  the  family  for  several  years,  to  fore-  Ohio  St.  365. 

138 


WHEN   RIGHT   TO   ENFORCE   MORTGAGE   ACCRUES.        [§  1190. 

ment  to  extend  the  time  of  payment  is  binding,  and  suspends  the 
right  to  foreclose  if  founded  on  a  good  consideration  and  otlierwise 
valid  ;i  but  if  made  without  consideration  it  amounts  to  nothing, 
and  the  mortgage  may  be  foreclosed  at  any  time.^  If,  however,  the 
action  of  the  party  to  whom  the  promise  was  made  was  controlled 
by  such  promise,  and  he  took  title  to  the  real  estate  covered  by  the 
mortgage  relying  upon  such  promise,  a  court  of  equity  will  apply 
the  doctrine  of  estoppel,  and  refuse  its  aid  to  the  mortgagee  when 
he  attempts  to  foreclose  his  mortgage  before  the  expiration  of  the 
period  named.^  The  payment  of  interest  in  advance  is  a  sufficient 
consideration  to  support  an  extension  of  a  mortgage.* 

Where  the  mortgage  was  payable  in  six  months  after  date,  with 
interest  monthly  in  advance,  and  contained  also  a  stipulation  that 
in  case  the  interest  or  any  portion  of  it  should  become  due  and 
remain  unpaid  after  demand,  then  the  mortgage  should  be  fore- 
closed, the  prompt  payment  of  the  interest  was  held  not  to  prolong 
the  time  of  payment  beyond  the  six  months,  and  a  cause  of  action 
upon  the  note  and  mortgage  then  accrued.^ 

An  agreement  to  extend  the  payment  of  a  debt  already  due  is  not 
to  be  implied  from  a  provision  in  a  mortgage  of  a  mining  claim, 
that  the  debt  is  to  be  paid  as  fast  as  it  can  be  made  out  of  the  claim, 
after  deducting  certain  expenses  ;  nor  does  such  an  agreement  imply 
that  the  claim  is  to  be  paid  only  in  this  way.^ 

A  provision  for  the  extension  of  the  mortgage  at  the  option  of 
the  holder  of  the  mortgage  note  is  an  agreement  coupled  with  an 
interest,  and  is  not  revoked  by  the  death  of  the  mortgagor.^ 

When  a  mortgagee  in  assigning  an  overdue  mortgage  guaran- 
tees its  payment,  and  provides  for  its  extension  upon  condition  of 
the  prompt  payment  of  the  interest,  this  agreement  does  not  inure 
to  the  benefit  of  the  mortgagor ;  but  the  mortgagee  may  at  any 

It   is   suggested   that  such  an  extension        3  Van  Syckle  v.  O'Heran  (N.  J.  Eq.),  24 

tates  the  mortgage  out  of  the  statute  as  Atl.  Rep.  1024. 

between  tlie  original  parties  only,  and  not  In  New  Jersey,  under  the  statute  relating 
between  the  mortgagee  and  innocent  pur-  to  business  done  on  the  "  Christian  Sab- 
chasers  who  had  no  notice  of  the  extension,  bath,"  commonly  called  Sunday,  a  parol 
Wyman  v.  Russell,  4  Biss.  307.  agreement  extending  the  time  of  payment 

1  Tompkins  v.  Tompkins,  21  N.  J.  Eq.  of  a  mortgage  debt,  entered  into  on  Sun- 
3.38;  Parker  y.  Jameson,  32  N.  J.  Eq.  222;  day,  is  void.  Rush  v.  Rush  (N.  J.),  18 
French  v.   Griffin,  18   N.  J.  Eq.  279,  281  ;  Atl.  Rep.  221. 

Trayscr  v.  Indiana  Asbury  University,  39  *  Maher  v.  Lanfrom,  8G  111.  513;    In  re 

lud.  556;  Loomisi'.  Donovan,  17  Ind.  198;  Betts,  4  Dill.  93,  7  Reporter,  225. 

Redman  v.  Dejiuty,  26  Ind.  338;   Fish  v.  ^  Rendleton  v.  Rowe,  34  Cal.  149. 

Ilayward,  28  Ilun,  456.  c  Sharpe  v.  Arnott,  51  Cal.  188. 

2  Massaker  v.  Mackerley,  9  N.  J.  Eq.  "  Benneson  v.  Savage,  130  III.  352,  22 
440.  N.  E.  Rep.  838. 

139 


§  1191.  ]      WHEN   RIGHT    TO   ENFORCE    MORTGAGE   ACCRUES. 


time  after  a  default  require  the  assignee  to  proceed  to  foreclose  at 
his  expense.^ 

Only  a  party  to  an  agreement  to  extend  the  time  of  payment  can 
maintain  an  action  for  a  breach  of  it  by  the  mortgagee.^ 

1191.  If  the  time  of  payment  of  such  a  mortgage  be  extended 
by  a  parol  agreement,  though  this  may  be  insufficient  to  change 
the  legal  effect  and  operation  of  the  writing  under  seal,  it  will  be  a 
sufficient  waiver  of  the  default  contemplated  in  the  mortgage,  and 
neitlier  a  court  of  equity  nor  a  court  of  law  will  enforce  a  forfeiture 
of  credit  which  has  occurred  under  such  agreement,-^  A  foreclos- 
ure suit  brought  before  the  expiration  of  the  time  so  extended  is 
23re mature,  and  will  be  dismissed.* 


^  Lee  u.  West  Jersey  Land  &  Cranberry 
Co.  29  N.  J.  Eq.  377. 

2  Reed  v.  Home  Savings  Bank,  127  Mass. 
295. 

3  Van  Syckle  v.  O'Heran  (N.  J.  Eq.),  24 
Atl.  Rep.  1024.  In  Albert  v.  Grosvenor  In- 
vestment Company,  L.  R.  .3  Q.  B.  123,  127, 
Chief  Jnstice  Cockburu  said:  "  This  is  the 
case  of  a  mortgage  whereby  the  mortga;,'or 
transfers  the  property  in  certain  goods  to 
the  mortgagees,  but  subject  to  the  mort- 
gagor's riglit  of  redemption  ;  and  there  are 
certain  clauses  in  the  deed,  the  result  of 
which  is,  that  the  mortgagees  cannot  seize 
and  sell  the  goods  unless  the  mortgagor 
makes  default  in  paying  the  instalments  of 
£2,  which  he  is  bound  to  do  on  each  succes- 
sive Monday  until  the  loan  is  repaid.  Now 
the  facts  are,  that  the  plaintiff's  wife  went 
to  Bayne  (who  must  be  taken  to  have  had 
full  authority  to  bind  the  defendants  by 
what  he  did,  for,  on  the  evidence,  I  see  not 
the  slightest  reason  to  believe  any  one  else 
ever  interfered  in  the  management  of  the 
business  of  the  company)  and  told  him  that 
her  husband  had  difficulty  in  meeting  the 
instalment  due  on  the  28th  of  August,  and 
Bayne  extended  the  time  for  the  payment 
of  that  and  the  next  instalment  to  the  11th 
of  September.  Now  the  bill  of  sale  pro- 
vides that  if  the  mortgagor  shall  make 
'  default '  in  payment  of  the  sum  of  £62  10s., 
or  any  part  thereof,  the  whole  amount  shall 

140 


be  then  immediately  due  and  payable ;  and 
it  shall  be  lawful  for  the  mortgagees  to 
take  possession  of  the  goods,  and  to  sell  and 
dispose  of  them.  Now  'default'  must  be 
taken  to  mean  a  nonpayment  by  the  party 
bound  to  pay,  without  the  consent  of  the 
parties  having  a  right  to  waive  the  payment. 
And  I  see  nothing  which  goes  to  show  that 
if,  by  the  consent  of  the  person  who  is  to 
receive  payment,  the  time  for  jjayment  is 
extended,  the  omission  to  pay  within  the 
time  specified  must  be  a  'default'  within 
the  meaning  of  the  word  in  the  bill  of  sale; 
and  it  would  be  monstrous  to  hold  that  it 
was  a  default,  for  the  mortgagee  might 
always  lead  the  mortgagor  into  a  snare  by 
consenting  that  the  time  for  payment  should 
be  extended,  and  then  coming  down  upon 
him  by  insisting  that  there  had  been  a 
default.  And  even  if  money  were  offered 
by  the  mortgagor  the  next  day,  and  it  were 
accepted  by  the  mortgagee,  the  result  would 
be  the  same.  'Default'  must  mean  a  de- 
fault where  something  is  not  done  by  the 
mere  act  of  omission  of  the  one  party,  and 
not  an  omission  with  the  concurrence  of  the 
other  party.  And  in  the  present  case  the 
voluntary  extension  of  the  time  by  Bayne 
alters  the  character  of  the  act  of  the  plain- 
tiff, which  would  otherwise  have  been  a 
default." 
*  Goodall  V.  Boardman,  53  Vt.  92. 


CHAPTER   XXVL 

WHEN   THE   EIGHT   TO   FOIiECLOSE   IS   BAEEED. 

1192.  Statutes  of  limitation  are,  as  a  general  rule,  only  ap- 
plicable as  such  to  proceedings  at  law  ;  but  without  having  any 
binding  foi-ce  upon  courts  of  equity  they  have  been  adopted  here  by 
analogy  as  fixing  the  time  within  which  rights  may  be  enforced  in 
equit3^^  Following  this  analogy,  the  right  of  the  mortgagee  to 
foreclose  and  of  the  mortgagor  to  redeem  is  presumed  to  be  barred 
after  tlie  lapse  of  such  a  period  as  is  prescribed  by  the  statute  for 
enforcing  a  right  of  entry  upon  lands.  This  period,  by  the  English 
Statute  of  Limitation  of  32  Henry  VHI.  and  21  James  I.,  and  by 
the  earlier  statutes  enacted  in  this  country,  which  generally  fol- 
lowed the  English  statute,  was  twenty  years  ;2  and  following  the 
analog}'^  of  these  'statutes  so  long  as  they  remained  in  force,  the 
lapse  of  this  period  was  in  the  same  way  presumed,  as  between  a 
mortgagor  and  mortgagee,  to  be  a  bar  to  the  rights  of  the  one  as 
against  the  other.  In  the  early  case  of  White  v.  Utver,^  "  the  Lord 
Keeper  declared  that  he  would  not  relieve  mortgages  after  twenty 
years  ;  for  that  the  statute  of  21  Jac.  I.  ch.  16  did  adjudge  it  rea- 
sonable to  limit  the  time  of  one's  entry  to  that  number  of  years  ; 
unless  there  are  such  particular  circumstances  as  may  vary  the  ordi- 
nary case,  as  infants,  femes  covert,  etc.,  are  provided  for  in  the  very 
statute ;  though  those  matters  in  equity  are  to  be  governed  by  the 
course  of  the  court,  and  that  't  is  best  to  square  the  rules  of  equit}'- 
as  near  the  rules  of  reason  and  law  as  may  be." 

1  Ayres  v.  Waite,  10  Cush.  72  ;  Morgan  v.  sons  shall,  at  any  time  hereafter,  make  any 
Morgan,  10  Ga.  297;  Roberts  t*.  Welch,  8  entry  into  any  lands,  tenements,  or  heredita- 
Ired.  Eq.  287  ;  Ray  v.  Pearce,  84  N.  C.  485  ;  nients,  but  within  twenty  years  next  after 
Coyle  I'.  Wilkins,  57  Ala.  108  ;  Cleveland  Ins.  his  or  their  right  or  title  which  shall  here- 
Co.  V.  Reed,  1  Biss.  180  ;  Wyman  v.  Russell,  after  first  descend  or  accrue  to  the  same; 
4  Biss.  307.  Per  contra,  Lord  Redesdale,  and  in  default  thereof,  such  persons  so 
in  Cholmondeley  v.  Clinton,  4  Bligh,  119,  entering,  and  their  heirs,  shall  be  utterly 
said  the  statute  was  meant  to  bind  courts  excluded  and  disabled  from  such  entry  after 
of  equity.  Pitzer  v.  Burns,  7  W.  Va.  63,  to  be  made,  any  former  law  or  statute  to  the 
69.  contrary  notwithstanding."    In  case  of  dis- 

2  The  words  of  the  statute  21  James  I.  abilities   entry   may    be   made   within   ten 
ch.  16,  §  1,  are,  that  "for  quieting  men's  years  after  the  removal  of  the  same, 
estate,  be  it  enacted,  that  no  j)erson  or  per-        ^  2  Vent.  340. 

141 


§  1192.]    WHEN  THE  RIGHT  TO  FORECLOSE  IS  DEBARRED. 

It  is  the  general  rule,  therefore,  that  no  interest  having  been 
paid,  and  no  entry  made  under  the  mortgage,  or  other  proceedings 
had  to  enforce  the  mortgage,  it  is  presumed  as  a  matter  of  fact 
from  these  circumstances  that  the  mortgage  has  been  discharji^ed 
b}'  payment  or  otherwise.  This  presumption  of  fact  is,  liowever, 
always  liable  to  be  controlled  by  other  evidence.  The  period  of 
twent}'  years  is  not  adopted  as  a  fixed  and  positive  limitation  of 
right,  but  as  an  equitable  rule,  after  the  analogy  of  the  statute 
of  limitations.^  In  several  States  in  which  the  time  of  limitation 
has  been  made  less  than  twenty  years,  the  analogy  of  the  statute  of 
limitations  is  followed,  and  a  corresponding  period  is  adopted  in 
equity  as  a  bar  to  a  suit  to  foreclose  or  redeem  a  mortgage.^ 

The  rule  is  otherwise  in  Alabama ;  ^  for  while  it  is  held  that  the 
possession  of  the  mortgagee  after  the  law  day  of  the  mortgage 
without  an  account  of  rents  and  profits,  or  other  recognition  of  the 
mortgagor's  equity  of  redemption  for  the  period  which,  under  the 
statute  of  limitations,  would  bar  an  action  at  law,  if  the  right  and 
remedy  were  legal,  would  by  analogy  bar  the  mortgagor  of  a  bill 
to  redeem,  it  is  held  that  a  mortgagee  is  not  barred  of  a  bill  to  fore- 
close,  unless   twenty  years  have   elapsed  without  the  payment  of 


^  In  Iowa  the  statute  of  limitations  is 
held  to  apply  directly  to  suits  in  equity  as 
well  as  suits  at  law,  and  to  bar  a  suit  to 
foreclose  a  mortgage  after  the  lapse  of  ten 
years.  Newman  v.  De  Lorimer,  19  Iowa, 
244;  Hendershott  v.  Ping,  24  Iowa,  1.34. 
The  right  to  foreclose  a  title  bond  is  barred 
in  the  same  time.  Day  v.  Baldwin,  34 
Iowa,  380. 

'^  As  in  Vermont :  Richmond  r.  Aiken, 
25  Vt.  324 ;  Martin  v.  Bowker,  19  Vt.  526  ; 
Merriam  v.  Barton,  14  Vt.  501.  Connect- 
icut: Haskell  v.  Bailey,  22  Conn.  569; 
Crittenden  v.  Brainard,  2  Root,  485. 
Kentucky :  Field  v.  ^Yilson,  6  B.  Mon. 
447.  Iowa :  Crawford  v.  Taylor,  42  Iowa, 
260. 

3  Byrd  v.  McDaniel,  33  Ala.  18;  Coyle 
V.  Wilkins,  57  Ala.  108.  In  the  latter  case 
Brickell,  C.  J.,  upon  this  distinction  further 
said  :  "  After  forfeiture  the  mortgagee  has 
the  complete  legal  title.  It  is  in  equity  only, 
and  by  construction,  that  he  is  regarded  as  a 
trustee  of  the  legal  estate  for  the  mortgagor, 
and  bound  to  apply  the  rents  and  profits  to 
the  payment  of  the  mortgage  debt.  A  pos- 
session without  recognition  of  the  equity  of 
the  mortgagor,  without  an  application  of 

142 


tlie  rents  and  profits,  as  by  decree  of  a 
court  of  equity  their  application  could  be 
compelled,  is  in  hostility  to  and  adverse  to 
the  mortgagor,  and  referable  only  to  the 
legal  title.  The  mortgagor  stands  in  a  dif- 
ferent relation.  If  in  possession,  his  posses- 
sion is  permissive,  referable,  and  in  suliordi- 
nation  to  the  legal  title  of  the  mortgagee, 
until,  by  disclaimer,  of  which  the  mortgagee 
has  notice,  it  becomes  adverse.  His  aliena- 
tion passes  only  his  equity  of  redemption, 
and  if  the  alienee  has  notice  of  the  mort- 
gage he  enters  and  holds  in  subordination 
to  the  title  of  the  mortgagee.  The  mort- 
gage to  the  appellant  was  properly  recorded, 
and  it  is  not  necessary,  therefore,  to  exam- 
ine the  evidence  which  has  been  offered  to 
show  actual  notice  to  those  entering  subse- 
quently into  possession  of  the  premises 
under  the  mortgagor.  The  registration  is 
equivalent  to  actual  notice,  and  the  purpose 
of  the  statutes  which  authorize  it  is  to 
make  it  operate  as  direct  notice  to  all 
persons  deriving  title  from  the  mortgagor. 
Having  notice,  they  are  bound  by  the  mort- 
gage ;  and  the  evidence  fails  to  show  any 
disclaimer  by  them  of  the  title  of  the  mort 
gage." 


WHEN   THE    RIGHT    TO   FORECLOSE   IS   DEBARRED.         [§  1193. 

interest  or  an  admission  of  the  existence  of  the  mortgage  debt  creat- 
ing the  presumption  of  its  payment. 

The  distinction  taken  between  a  bill  by  the  mortgagor  to  redeem 
and  a  bill  by  the  mortgagee  for  foreclosure  rests  on  the  difference 
of  the  right,  and  of  the  possession  of  the  mortgagee  and  of  the 
mortgagor.  The  statute  does  not  begin  to  run  until  there  is  a 
breach  of  the  condition  of  the  mortgage.^ 

The  statute  of  limitations  does  not  bar  a  foreclosure  unless  it  is 
supported  by  an  adverse  possession  of  the  mortgaged  property  for 
the  required  period  of  the  statute.^ 

1193.  The  tendency  of  legislation  has  been  to  reduce  the 
period  of  limitation  within  which  suits  relating  to  real  property 
shall  be  brought.^  A  statement  is  appended  of  the  periods  of  lim- 
itation in  the  several  States  applicable  to  actions  for  the  recovery 
of  real  property,  though  it  -will  be  observed  that  in  some  States 
there  are  special  provisions  applicable  to  mortgages.*     A  reference 

1  Delano  ?;.  Smith,  142  Mass.  490,  8  N.E.  *  Alabama  :    Ten     years.     Code     1886, 

Kep.  644.  §  2614.     Arkansas  :    Five  years,   or   when 

-  §  1211;  St.  Louis  v.  Priest,   103  Mo.  debt  is  barred.     Acts  of  1887,  oh.  104.     See, 

652,  15  S.  W.  Rep.  988;  Lewis  w.  Schwenn,  however,    §    1207;    Nix   v.    Draughon,    54 

93  Mo.  26,  2  S.  W.  Rep.  391  ;    Booker  u.  Ark.  340,  15  S.  W.  Rep.  893.     California: 

Armstrong,  93  Mo.  49,  4  S.  W.  Rep.  727  ;  An  action  upon  any  contract,  obligation,  or 

Gardner  v.   Terry,  99  Mo.  523,  12  S.  W.  liability,  founded    upon   au   instrument  in 

Rep.  888.  writing   executed   in    this   State,   must  be 

3  "It  might  at  first  sight  be  considered  brought  within  four  years.     This  is  held  to 

that  the   duration  of  wrong  ought  not  to  apply  to  mortgages,  which  are  not  regarded 

give  it   a  sanction,  and  that  the  long  suf-  as  conveyances  of  land.    Code  of  Civil  Pro- 

fering  of  the  injury  should  be  no  bar  to  the  cedure  1885,  §  337.     See  §  1207.     Colorado  : 

obtaining  of   right  when  demanded.     But  Annot.  Stats.  1891,  §  2900.     Connecticut: 

human  affairs  must  be  conducted  on  other  Fifteen  years.     G.  S.  1875,  p.  493.     Dela- 

principles.     It  is  found  to  be  of  the  great-  ware:  Twenty  years.     R.  C.  1874,  p.  727. 

est  importance  to  promote  peace  by  affixing  Florida  :  Seven  years.     R.  S.  1892,  §  1287. 

a  period  to  the  right  of  disturbing  posses-  Foreclosure   suit   barred   in  twenty   years, 

sion.     Experience  teaches  us  that,  owing  to  Jordan  v.  Sayre,  24  Fla.  1,  R.  S.  1892,  §  1294, 

the  perishable  nature  of  all  evidence,  the  3  So.  Rep.  329.     Georgia :    Twenty  years ; 

truth  cannot  be   ascertained   on  any  con-  or  seven  years  under  written  evidence  of 

tested  question  of  fact  after  a  considerable  title.     Code  1882,  §§  2682,  2683.     And  see 

lapse  of  time.     The  temptation  to  introduce  Parker  r.  Jones,  57  Ga.  204.     Idaho.     Five 

false  evidence  grows  with  the  difficulty  of  years.     R.    S.  1887,  §  4039.     Illinois:  An 

detecting  it ;   and  at  last,  long   possession  action  or  sale  to  foreclose  any  mortgage,  or 

affords   the  proof  most  likely  to  be  relied  deed  of  trust  in  the  nature  of  a  mortgage,  is 

upon   of  the  right  of   property.     Indepen-  limited  to  ten  years  after  the  right  of  action 

dently  of  the  question  of  right,  the  disturb-  or  right  to  make  such  sale  accrues.     Real 

ance  of  property  after  long  enjoyment  is  actions  are  limited  to  twenty  years.     II.  S. 

mischievous.     It  is  accordingly  found  both  1877  and  1880,  ch.  83,  §§  1,11.     See  §  1207. 

reasonable  and  useful  that  enjoyment  for  a  Indiana :  Twenty  years.     R.  S.  1888,  §  293 ; 

certain  period  of  time  against  all  claimants  Catterlin  v.  Armstrong,  101  Ind.  258.     See 

should  be  considered  conclusive  evidence  of  §  1207.     Iowa :    Ten  years.     Annot.  Code 

title."     First  Report  of  the  Real  Property  1888,  §3734.     See§1207.     Kansas  :  Fifteen 

Commissioners  of  England,  1829,  p.  39.     '  years.     G.   S.   1888,  §  4093.     See   §  1207. 

143 


§  1193.]        WHEN   THE   RIGHT    TO   FORECLOSE   IS   DEBARRED. 

to  the  earlier  statutes  in  several  States  will  show  that  the  period 
has   been   materially  shortened  in   the   present  statutes.     But   the 


Kentucky:  Fifteen  years.  G.  S.  188S,  ch. 
71,  art.  iv.  §  16.  Maine:  Twenty  years. 
R.  S.  188.3,  ch.  105,  §  1 .  Maryland  :  Twenty 
years  by  analogy  to  the  time  of  limitation 
under  the  statute  of  James.  Baltimore  & 
Ohio  R  R.  Co.  V.  Trimble,  .'jl  Md.  99.  Mas- 
sachusetts :  Twenty  years.  P.  S.  1882,  ch. 
197,  §  I.  Michigan:  Fifteen  years.  Annot. 
Stats.  1882,  §  8698.  See  Highstone  v.  Franks, 
93Mich.  52,  52N.W.Rep.  1015.  Minnesota: 
An  action  to  foreclose  a  mortgage  upon  real 
estate  must  be  commenced  within  ten  years 
after  the  cause  of  action  accrues.  Laws  1870, 
ch.  60.  This  act  did  not  apply  to  power 
of  sale  mortgages.  Golcher  v.  Brisbin,  20 
Minn.  453.  By  Laws  1871,  ch.  52,  mort- 
gages containing  powers  of  sale  must  be 
foreclosed  within  the  same  time.  By  Laws 
1879,  ch.  21,  G.  S.  §  5344,  such  mortgages 
may  be  foreclosed  within  fifteen  years  after 
maturity.  See,  also,  Archambau  v.  Green, 
21  Minn.  520;  Parsons  v.  Noggle,23  Minn. 
328 ;  Reeves  v.  Vinacke,  1  McCrary,  213; 
Du6can  v.  Cobb,  32  ^Nlinn.  460,  21  N.  W. 
Rep.  714.  Mississippi:  No  action  or  other 
proceeding  can  be  had  upon  a  mortgage  or 
deed  of  trust  to  recover  the  nionej^  secured, 
except  within  the  time  that  may  be  allowed 
for  the  commencement  of  an  action  at  law 
upon  such  writing;  and  in  all  cases  where 
the  remedy  at  law  to  recover  the  debt  is 
barred,  the  remedy  inequity  on  the  mortgage 
is  barred.  Actions  on  contracts  not  under 
seal  are  limited  to  six  years;  and  actions  on 
open  account  to  three  years.  Annot.  Code 
1892,  §§  2733,  2737.  An  equitable  mort- 
gage by  absolute  conveyance  is  subject  to 
same  rule  when  mortgagor  remains  in  pos- 
session. Green  v.  MizeJIe,  54  Miss.  220. 
See  §1207.  Missouri :  Ten  years.  2  R.  S. 
1889,  §  6764.  See  §  1207;  Orr  ;;.  Rode, 
101  Mo.  387,  13  S.  W.  Rep.  1066.  Mon- 
tana :  Five  years.  Comp.  Stats.  1887,  p.  65. 
Nebraska :  Actions  to  foreclose  mortgages 
must  be  commenced  within  ten  years  after 
the  cause  of  action  accrues.  Consol.  Stats. 
1891,  §  4542  ;  Scudebaker  Manuf.  Co.  v.  Mc- 
Cargur,  20  Neb.  500,  30  N.  W.  Rep.  686  ; 
Cheney  v.  Campbell,  28  Neb.  376,  44  N. 
W.  Rep.  451  ;  Merriam  v.  Goodlett  (Neb.), 
54  N.  \V.  Rep.  686.  See  §  1207.  Nevada : 
For  the  recovery  of  real  property,  five  vears. 

144 


Actions  to  foreclose  mortgages,  four  years, 
as  in  California.  Codes  &  Stats.  1885, 
§§  3633,  3644 ;  Henry  v.  Confidence  G.  &  S. 
Mining  Co.  1  Nev.  619.  See  §  1207.  New 
Hampshire :  Actions  for  the  recovery  of  real 
estate  are  limited  to  twenty  years.  Actions 
upon  notes  secured  by  mortgage  may  be 
brought  so  long  as  the  plaintiff  is  entitled  to 
bring  an  action  upon  the  mortgage.     P.  S. 

1891,  ch.  217,  §§  1,  5.  New  Jersey :  Twenty 
years.  Rev.  1877,  p.  597.  New  York : 
Twenty  years.  Code  of  Civil  Procedure 
1890,  §§  365,  379.  North  Carolina  :  Action 
must  be  commenced  within  ten  years  after 
the  forfeiture  of  the  mortgage,  or  after  the 
power  of  sale  became  absolute,  or  within 
ten  years  after  the  last  payment  on  it. 
Code  of  Civ.  Pro.  1891,  §  152;  Fraser  v. 
Bean,  96  N.  C.  327,  2  S.  E.  Rep.  159. 
North  Dakota  and  South  Dakota.  Con)p. 
Laws  1887,  §  4837.  Oregon:  Actions  for 
the  recovery  of  real  propert}'  may  be  brought 
within  ten  years ;  an  action  upon  a  sealed  in- 
strument, within  ten  years.    1  Annot.  Laws 

1892,  pp.  132,  135.  A  foreclosure  suit  is 
not  regarded  as  a  suit  upon  a  real  estate  in- 
terest, and  therefore  is  barred  in  ten  years 
as  a  suit  upon  a  sealed  instrument.  Eu- 
banks  v.  Leveridge,  4  Sawyer,  274  ;  Ander- 
son V.  Baxter,  4  Oregon,  105.  Otherwise 
if  the  suit  is  in  effect  one  to  remove  a  cloud 
on  the  title.  Meier  v.  Kelly  (Oregon),  29 
Pac.  Rep.  265.  Pennsylvania  :  Twenty-one 
years.  Brightly 's  Purdon's  Dig.  vol.  2, 
p.  927.  Ehode  Island :  Twenty  years.  P.  S. 
1882,  ch.  205,  §4.  South  Carolina :  Twenty 
years.  G.  S.  1882,  Code  of  Civ.  Pro.  §  111. 
Tennessee  :  Seven  years.  Code  1884,  §  3461. 
Texas.  Ten  years.  As  against  a  person  in 
adverse  possession  under  color  of  title,  action 
must  be  commenced  within  three  years. 
R.  Civ.  Stats.  1889,  §§  3191,  3194.  See 
§  1207.  Vermont:  Fifteen  years.  R.  L. 
1880,  ch.  56,  §  1.  Virginia:  No  deed  of 
trust,  mortgage,  or  lien  for  purchase-money 
shall  be  enforced  after  twenty  years  from 
the  time  when  the  right  to  enforce  the  same 
first  accrued ;  but  this  does  not  apply  to 
any  deed  of  trust  or  mortgage  executed  by 
a  corporation.  Code  1887,  §  2935.  West 
Virginia:  Ten  years.  Code  1887,  ch.  104, 
§  1.   Wisconsin  :  Twenty  years.   R.  S.  1878, 


WHEN   THE  RIGHT   TO   FORECLOSE   IS   DEBARRED.         [§  1193. 

history  of  the  law  of  limitations  in  England  illustrates  this  fact 
most  forcibly.  At  common  law  there  was  no  period  of  limitation 
within  which  anv  action  now  in  use  should  be  brought.  An  uncer- 
tain  doctrine  of  presumption  was  applied  against  stale  demands  and 
claims. 

Previous  to  the  reign  of  Henry  VII.  there  was  no  statute  pre- 
scribing a  period  of  a  certain  number  of  years  within  which  the 
assertion  of  a  claim  to  real  estate  was  limited  ;  though  different 
events  had  been  selected  by  successive  enactments,  from  the  Anglo- 
Norman  times  down  to  the  time  of  Henry  VII.,  as  periods  of  limi- 
tation beyond  which  claimants  should  not  go  for  the  foundation  of 
titles  as  against  persons  who  had  been  in  possession  since  the  speci- 
fied time.  The  lapse  of  time  rendered  fresh  starting-points  neces- 
sary to  the  security  of  titles.  The  beginning  of  the  reign  of  Henry 
I.,  of  Richard  I.,  the  last  return  of  King  John  out  of  Ireland  into 
England,  the  coronation  of  King  Henry  HI.,  and  the  first  voyage 
of  King  Henry  HI.  into  Gascony,  were  periods  of  limitation  suc- 
cessively selected. 1 

"  A  profitable  and  necessary  statute,"  passed  near  the  close  of 
the  reign  of  Henry  VIII.,^  for  the  first  time  provided  affixed  period 
of  limitation  within  which  actions  should  be  brought.  The  gen- 
eral period  for  actions  for  the  recovery  of  real  estate  was  three- 
score years.  By  the  statute  of  James  I.  this  period  was  reduced 
to  twenty  years.  By  the  act  which  went  into  operation  in  Eng- 
land on  the  first  day  of  January,  1879,  the  period  is  reduced  to 
twelve  years. '^ 

ch.  177,  §  4209.  The  twenty  years'  lim-  first  day  of  January,  1879,  "No  action  or 
itation  applies  to  suits  for  the  foreclosure  suit  or  other  proceeding  shall  be  brought 
of  mortgages  on  the  ground  that  they  to  recover  any  sum  of  money  secured  by 
are  instruments  under  seal.  Whipple  v.  any  mortgage,  judgment,  or  lien,  or  other- 
Barnes,  21  Wis.  327.  A  suit  to  redeem,  wise  charged  upon  or  payable  out  of  any 
however,  must  be  brought  within  ten  years,  land  or  rent,  in  law  or  in  equity,  or  any 
as  this  is  an  equitable  action  coming  within  legacy,  but  within  twelve  years  next  after 
a  clause  of  the  statute  limiting  actions  not  a  present  right  to  receive  the  same  shall 
otherwise  specified  for.  Knowlton  i'.  Walker,  have  accrued  to  some  person  capable  of 
13  Wis.  264;  R.  S.  1878,  §  4227.  Wyo-  giving  a  discharge  for  or  release  of  the 
ming  :  Ten  years.     R.  S.  1888,  §  2366.  same,  unless  in  the  mean  time  some  part 

1  SeeStat.of  Merton  (20Hen.III.),ch.  8;  of  the  principal  money,  or  some  interest 
Stat,  of  West.  1  (3  Edw.  I.),  ch.  39.  See  thereon,  shall  have  been  paid,  or  some  ac- 
Edson  V.  Munsell,  10  Allen,  557,  for  a  knowledgment  of  the  right  thereto  shall 
sketch  of  the  history  of  the  English  Statute  have  been  given  in  writing,  signed. by  the 
of  Limitations  and  of  that  of  Massachusetts,  person  by  whom  the  same  shall  be  payable, 
And  see  Fellowcs  v.  Clay,  4  Q.  B.  313,  354,  or  his  agent,  to  the  person  entitled  thereto, 
per  Lord  Den  man,  C.  J.  or   his   agent;  and    in    such  case   no  such 

2  Co.  Litt.  §  115a;  32  lien.  VIII.  ch.  2.      action  or  suit  or  jjroeeeding  shall  be  brought 
-^  By  the  Real  Property  Limitation  Act,    but  within  twelve  years  after  such  payment 

1874,   which    went   into   operation  on    the    or   acknowledgment,   or   the   last  of   such 

VOL.  II.  10  245 


§  1194.]         WHEN   THE   RIGHT   TO   FORECLOSE   IS   DEBARRED. 

While  a  statute  of  limitations  is  favorably  regarded  by  the  courts, 
it  will  not  be  allowed  to  have  a  retroactive  effect.^ 

A  statute  of  limitations  relates  solely  to  the  remedy,  and  may  be 
shortened  or  lengthened,  and  changed  from  time  to  time,  at  the 
pleasure  of  the  legislature,  so  long  as  the  creditor  is  not  denied  a 
reasonable  opportunity  to  enforce  collection  of  his  debt.^ 

1194.  In  some  early  cases  it  was  declared  that  the  presump- 
tion of  payment  arising  from  the  lapse  of  time,  though  applicable 
to  a  bond  secured  by  the  mortgage,  was  not  applicable  to  the  mort- 
gage itself,  inasmuch  as  the  legal  estate  was  in  the  mortgagee,  and 
the  mortgagor  was  regarded  as  a  mere  tenant  at  will,  whose  posses- 
sion was  therefore  the  possession  of  the  mortgagee.'^  This  doctrine 
was,  however,  repudiated  by  Lord  Thurlow  in  1791,'^  and  it  has  not 
in  any  case  since  been  asserted.     The  fact  that  the  debt  is  secui'ed 

payments    or    acknowledgments,    if    more  nients.     It  is  only  quodam  modo  a  tenancy 

than  one,  was  given."    37  &  38  Vict.  ch.  at  will,  as  Lord  Mansfield  says  in  one  of 

57,  §  8.  the  cases.     Moss  r.  Gallimore,  1  Doug.  279. 

1  McKisson  v.  Davenport,  83  Mich.  211,  We  cannot  push  it  to  that  extent,  reasoning 
47  N.  W.  Rep.  100.  on  the  supposed  relation  of  landlord  and 

2  Campbell  v.  Holt,  115  U.  S.  620,  628,  6  tenant,  which  is  not  founded  in  fact.  The 
Sup.  Ct.  Rep.  209 ;  Terry  v.  Anderson,  95  relation  of  mortgagor  and  mortgHgee  is 
U.  S.  628;  Drury  i;.  Henderson,  143  111.  peculiar:  in  a  court  of  equity  the  former  is 
315,  32  N.  E.  Rej).  186.  considered  as  owner,  and  that  is  the  nature 

^  Toplis  V.  Baker,  2  Cox,  118;  Leman  of   the   contract   between   them;  the    tacit 

V.  Newnham,   1  Ves.    Sen.    51  ;    dictum   in  agreement  is,  that  he  is  to  be  the  owner  if 

Cholmondeley   v.    Clinton,   2   Meriv.    171,  he  pays.     Then  what  is  to  be  the  effect  of 

360.  one  person's  continuing  for  twenty  years  in 

*  Trash  v.  White,  3  Bro.  Ch.  289.  The  possession  of  the  estate  of  another,  who 
Lord  Chancellor  said  :  "  That  if  the  case  does  nothing  to  make  good  his  title,  and  to 
was  clear  that  no  interest  had  been  paid  keep  alive  the  relation  of  mortgngor  and 
for  twenty  years,  he  had  always  understood  mortgagee  1  The  difficulty  I  feel  is,  that 
that  it  did  raise  the  presumption  that  the  if  twenty  years'  possession,  without  claim 
principal  had  been  paid ;  but  there  must  on  the  part  of  the  mortgagee,  will  not 
not  only  be  non-payment  of  interest,  but  no  operate  as  a  defence  against  him,  I  do  not 
demand  ;  and,  in  that  case,  he  thought  the  see  how  any  period  of  time,  however  long, 
presumption  on  a  mortgage  as  strong  as  can  bar  him.  If  the  fiction  of  a  tenancy  at 
that  at  law."  In  Christophers  v.  Sparke,  2  will  is  an  answer  to  the  objection  after 
Jac.  &  W.  223,  though  the  decision  turned  twenty  years,  why  will  it  not  be  an  answer 
upon  another  point.  Sir  Thomas  Plunier,  after  any  other  time  ?  There  would  be  no 
Master  of  the  Rolls,  said,  in  relation  to  this  possibility  of  stopping.  With  respect  to 
question  of  presumption  :  "  I  cannot  accede  the  mortgagor,  it  is  clear  that  his  equity  is 
to  the  doctrine  that  no  length  of  time  will  shut  out  by  the  mortgagee  being  in  posses- 
operate  against  a  mortgagee  who  has  been  sion  for  twenty  years  without  acknowledg- 
out  of  possession  without  claim  or  acknow-  ment;  then  why  should  this  not  be  recip- 
ledgment.  The  argument  of  there  being  a  rocal  1  Why  should  it  be  necessary  for  the 
tenancy  at  will  arises  from  a  mere  fiction  ;  relation  to  be  kept  alive  in  the  one  case  and 
for  there  is  no  actual  tenancy,  no  demise,  not  in  the  other  1  For  these  reasons, 
either  express  or  implied.  A  mortgagor  though  I  do  not  give  a  positive  opinion,  I 
has  not  even  the  rights  of  a  tenant  at  will;  cannot  agree  to  the  doctrine  intimated  in 
he  may  be  turned  out  of  possession  without  the  cases  alluded  to." 
notice,  and   is   not  entitled   to  the  emble- 

146 


WHEN    THE    RIGHT    TO   FORECLOSE    IS   DEBARRED.         [§  1195. 


by  a  mortgage  does  not  place  it  on  any  different  footing  from  a  debt 
due  upon  a  bond  without  a  mortgage,  but  is  liable  to  be  defeated 
by  the  same  presumption  arising  from  lapse  of  time  and  laches  of 
the  mortgagee. 

Although  the  mortgagor  is  not  a  tenant  at  will  to  the  mortgagee  in 
any  such  sense  that  his  possession  cannot  become  adverse,  yet  the 
resemblance  holds  to  this  extent,  that,  so  long  as  the  mortgagor  ac- 
knowledges his  relation  to  the  mortgagee  by  payment  of  interest  or 
the  like,  his  possession  is  the  possession  of  the  mortgagee.^  The 
mortgagor  may  convey,  mortgage,  or  lease  the  premises,  or  deal 
with  them  in  other  ways  as  the  owner  of  them,  without  rendering 
his  possession  hostile  to  the  mortgagee.  The  constructive  posses- 
sion of  the  mortgagee  continues  until  the  mortgagor's  holding  is 
either  in  opposition  to  the  will  of  the  mortgagee  or  is  without  any 
recognition  of  his  right.^ 

1195.  This  doctrine  of  presumption  has  been  one  of  frequent 
application  against  the  mortgage  debt,  and  is  fully  established 
everywhere.^  It  arises  from  the  policy  of  the  law.  It  does  not 
proceed  necessarily  on  a  belief  that  payment  has  actually  taken 
place.*  The  lapse  of  time  and  the  neglect  of  the  mortgagee  to  en- 
force   his    demand   against    the  mortgagor,    when    he  continues    in 


1  In  Harris  v.  Mills,  28  111.  44,  81  Am. 
Dec.  259,  Mr.  Justice  Walker  says :  "  It  has 
been  said  that  no  length  of  time  will  bar  a 
foreclosure  by  a  mortgagee  out  of  posses- 
sion. This  is  placed  upon  the  ground  that 
the  relation  of  landlord  and  tenant  is  sup- 
posed to  exist  between  the  parties.  But 
such  is  not  the  true  relation  of  the  parties. 
For  some  purposes,  and  to  a  limited  extent 
only,  a  portion  of  the  incidents  are  the 
same.  To  a  limited  extent,  and  for  some 
purposes,  the  relation  of  vendor  and  ven- 
dee, and  trustee  and  cestui  que  trust,  also 
exists." 

2  Jones  V.  Williams,  5  Ad.  &  E.  291,  6 
Nev.  &  M.  816;  Hall  v.  Surtees,  5  B.  & 
Aid.  686,  687;  Higginson  r.  Mein,  4 
Cranch,  415;  Howland  y.  Shurtleff,  2  Met. 
26,  35  Am.  Dec.  384  ;  Inches  v.  Leonard, 
12  Mass.  379;  Sheafe  n.  Gerry,  18  N.  H. 
245;  Howard  v.  Hildreth,  18  k.  H.  105; 
Roberts  v.  Littlefield,  48  Me.  61  ;  Chick  v. 
Rollins,  44  Me.  104;  Bates  v.  Conrow,  11 
N.  J.  Eq.  137 ;  Atkinson  v.  Patterson,  46 
Vt.  750;  Martin  v.  Jackson,  27  Pa.  St. 
504,  67  Am.  Dec.  489  ;  Benson  v.  Stewart, 
30  Miss.  49;    Boyd  r.  Beck,  29  Ala.  703; 


Drayton  v.  Marshall,  Rice  Eq.  373,  33 
Am.  Dec.  84  ;  Pitzer  v.  Burns,  7  W.  Va. 
63. 

3  Howland  v.  Shurtleff,  2  Met.  26,  35 
Am.  Dec.  384;  Inches  i'.  Leonard,  12  Mass. 
379  ;  Bacon  v.  Mclntire,  8  Met.  87 ;  Hughes 
V.  Edwards,  9  Wheat.  498  ;  Collins  v.  Tor- 
ry,  7  Johns.  278,  5  Am.  Dec.  273 ;  Jack- 
son V.  Wood,  12  Johns.  242,  7  Am.  Dec. 
315  ;  Jackson  v.  Pratt,  10  Johns.  381  ;  Giles 
V.  Baremore,  5  Johns.  Ch.  545,  552 ;  New- 
comb  V.  St.  Peter's  Church,  2  Sandf.  Ch. 
636;  Martin  v.  Bowker,  19  Vt.  526  ;  Field 
V.  Wilson,  6  B.  Mon.  479  ;  McNair  v.  Lot, 
34  Mo.  285,  84  Am.  Dec.  78;  Wilson  v. 
Albert,  89  Mo.  537;  Nevitt  v.  Bacon,  32 
Miss.  212,  66  Am.  Dec.  609  ;  Wilkinson  c. 
Flowers,  37  Miss.  579,  75  Am.  Dec.  78  ; 
McDonald  v.  Sims,  3  Kelly,  383  ;  Hoffman 
V.  Harrington,  33  Mich.  392  ;  Reynolds  v. 
Green,  10  Mich.  355;  Goodwyn  v.  Baldwin, 
59  Ala.  127  ;  Bhiisdell  v.  Smith,  3  Bradw. 
150;  Agnew  v.  Renwick,  27  S.  C.  562,  4 
S.  E.  Rep.  223. 

*  Hillary  v.  Waller,  12  Ves.  239,  252,  per 
Sir  William  Grant. 

147 


§  1196.]      whp:n  the  eight  to  foreclose  is  debarred. 

adverse  possession  without  recognizing  the  debt  in  any  way,  are 
grounds  for  a  presumption  in  fact,  which,  unexplained,  authorizes 
a  jury  to  infer  that  the  mortgage  is  satisfied,  and  is  a  sufficient 
answer  to  a  bill  by  the  mortgagee  to  foreclose.  A  bill  to  foreclose 
does  not  lie  after  the  mortgagor  has  held  adverse  possession  for  a 
period  equal  to  the  statute  period  of  limitations  for  real  actions.^ 
But  the  fact  that  there  has  been  no  recognition  of  the  mortgage 
debt  for  a  period  less  than  the  statute  period  of  limitation,  as,  for 
instance,  nineteen  years,  affords  no  presumption  of  payment.^ 

If  the  mortgagor  remains  in  possession  for  twenty  years  without 
paying  interest  or  rent,  or  otherwise  admitting  that  the  mortgage 
debt  is  unpaid,  this  is  good  presumptive  proof  of  payment,  and  a 
defence  to  an  action  for  foreclosure.^  This  rule  applies  equally 
to  estates  held  in  trust ;  the  equitable  rule,  that  the  statute  of  lim- 
itations does  not  bar  a  trust  estate,  holds  only  as  between  cestui  que 
trust  and  trustee,  and  not  between  a  cestui  que  tf'ust  and  trustee  on 
the  one  side  and  a  stranger  on  the  other.*  Neither  does  it  matter 
that  the  cestui  que  trust  is  under  disability,  if  there  be  a  trustee  to 
represent  him.^ 

When  tliere  has  been  a  foreclosure  sale,  whether  defective  or  not, 
and  this  has  not  been  followed  by  a  conveyance  to  the  purchaser  or 
any  recognition  of  the  mortgage  by  the  mortgage  debtor,  it  will  be 
presumed  after  the  lapse  of  twenty  years  that  the  land  has  been 
redeemed  from  such  sale.^ 

The  mortgagor  may  avail  himself  of  the  benefit  of  this  presump- 
tion of  payment  not  only  in  defence  to  a  foreclosure  suit,  but  in  a 
bill  for  reconveyance  of  the  property,  which  he  is  constrained  to 
bring  for  his  protection  against  a  judgment  creditor  of  the  mort- 
gagee, who,  with  full  knowledge  of  the  fact  that  the  deed  to  the 
latter  is  merely  a  mortgage,  is  about  to  proceed  to  sell  the  mort- 
gaged premises  as  the  property  of  the  mortgagee." 

1196.  The  presumption  of  payment  is  not  conclusive  in  favor 
of  a  mortgagor  who  has  been  in  uninterrupted  possession  for  twenty 
years,  but  may  be  controlled  by  evidence  of  part  payment  of  prin- 

1  Clevelaud  Ins.  Co.  v.  Reed,  24   How.  Jackson  ;;.  Hudson,  3  Johns.  37.5,  3   Am. 
284 ;  Downs  v.  Sooy,  28  N.  J.  Eq.  5.5.  Dec.  500. 

2  Boon  V.  Pierpont,  28  N.  J.  Eq.  7.  *  Lord  Hardwicke,  in  LlewelHn  v.  Mack- 

3  Bacon   v.  Mclntire,  8  Met.  87;  Chick  worth,  15   Vin.  Abr.   125,  pi.   1;    Bond   v. 
V.  Rollins,  44  Me.  104  ;  Crook  v.  Glenn,  30  Hopkins,  1  Sch.  &  Lef.  429. 

Md.  55.;  Demarest  v.  Wjnkoop,  3  Johns.  ^  Crook  v.  Glenn,  30  Md.  55;  Wych  v. 

Ch.  129,  135,  8  Am.  Dec.  467  ;  Jackson  v.  East  India  Co.  3  P.  Wms.  309. 

Wood,   12  Johns.   242,    7  Am.  Dec.   315;  «  Reynolds   v.   Dishon,   3    Bradw.    173; 

Jackson  v.  Pratt,  10  Johns.  381 ;  Collins  v.  Barnard  v.  Onderdonk,  98  N.  Y.  158. 

Torry,  7   Johns.   278,    5   Am.   Dec.   273  ;  ■?  Downs  v.  Sooy,  28  N.  J.  Eq.  55. 

148 


WHEN   THE   RIGHT    TO    FORECLOSE   IS   DEBARRED.         [§  1196. 

cipal  or  interest,  or  other  admissions  or  circumstances  from  which 
it  may  be  found  that  the  debt  is  still  unpaid;  ^  but  parol  evidence 
to  control  this  presumption  should  clearly  show  some  positive  act  of 
unequivocal  recognition  of  the  debt  within  that  time/^  Mere  silent 
acquiescence  in  the  mortgagee's  demands  of  payment,  without  a 
well-defined  verbal  promise  to  pay  on  the  part  of  the  mortgagor,  or 
admission  on  his  part  of  the  debt,  is  not  sufficient  to  repel  the  pre- 
sumption.^ 

A  new  promise  or  acknowledgment  will  take  the  mortgage  out 
of  the  statute  of  limitations;'*  as,  for  instance,  where  a  note  and 
mortgage  were  presented  for  payment  or  renewal  to  the  makers, 
who  wrote  and  signed  at  the  foot  of  the  mortgage  a  promise  under 
seal  to  renew  the  note,  and  to  give  a  new  mortgage,  whenever 
the  exact  amount  of  the  debt  should  be  ascertained,  a  plea  of  the 
statute  of  limitations  to  a  bill  to  foreclose  the  mortgage  was  dis- 
allowed.5  Such  a  promise  or  acknowledgment  is  binding  not  only 
upon  the  mortgagor  who  makes  it,  but  upon  a  subsequent  mort- 
gagee, if  the  prior  mortgage  was  duly  recorded,  for  in  such  case 
'the  subsequent  mortgagee  having  constructive  notice  from  such 
record  is  put  upon  inquiry  to  ascertain  whether  such  mortgage  still 
remains  in  force.^ 

The  new  promise  to  avail  anything  must  be  an  express  promise, 
and  not  merely  one  raised  by  a  doubtful  implication  of  law,  con- 
taining no  direct  admission  of  the  debt  as  a  subsisting  obligation. 
Thus  a  recital  in  a  deed  by  a  mortgagor  of  the  mortgaged  property 
that  the  grantee  assumes  the  payment  of  the  mortgage  does  not 
conclusively  establish  a  new  promise  on  the  part  of  the  mortgagor 
to  pay  the  mortgage  debt,  so  as  to  take  the  mortgage  debt  out  of 
the  statute  as  against  him.'  A  promise  in  writing,  signed  by  a 
mortgage  debtor,  to  pay  the  interest  due  upon  the  whole  debt,  is 
an  unequivocal  acknowledgment  of  the  whole  debt,  from  which  a 
promise  to  pay  the  same  may  be  implied.^  If  the  promise  to  pay 
the  interest   be  in  the  form  of  a  promissory  note,  or  the  overdue 

1  Locke  V.  Caldwell,  91  111.  417;   Wan-        ^  Cheever  ?;.  Parley,  11  Allen,  584. 
maker  v.  Van  Buskirk,  1  N.  J.  Eq.  685  ;  23        *  Murphy  v.  Coates,  33  N.  J.  Eq.  424. 
Am.  Dec.  748;  Earned  v.  Earned,  21  N.  J.        ^  Hart  v.  Boyt,  54  Miss.  547. 

Eq.  245  ;  Coldcleugh  v.  Johnson,  34  Ark.  "  Murphy  v.  Coates,  33  N.  J.  Eq.  424. 

312;  Cook  V.  Parham,  63  Ala.  456;  Phil-  '^  Eiddel    v.    Britzzolara,   56    Cal.    374; 

brook   V.    Clark,    77   Me.   176;    Earron    v.  Kelly   v.  Leachman  (Ida.),   33   Pac.   Rep. 

Kennedy,  17  Cal.  574;    Erown  v.  Wagner  44. 

(Pa.),  16  Atl.  Rep.  834.  "  Kelly    v.    Leachman    (Ida.),    33    Pac. 

2  Jarvis  v.   Albro,  67   Me.  310;  Ray  v.  Rep.  44. 
Pearre,  84  N.  C.  485 ;  Kellogg  v.  Dickinson, 

147  Mass.  432,  18  N.  E.  Rep.  223. 

149 


§§  1197,  1198.]       WHEN   THE    RIGHT   TO   FORECLOSE   IS   DEBARRED. 

interest  be  included  in  such  a  note,  the  identity  of  the  sum  in- 
cluded in  the  note  with  the  overdue  interest  may  be  shown  by 
parol  evidence.^ 

An  extension  ^  of  a  mortgage  which  covers  a  homestead  not  exe- 
cuted by  the  wife  of  the  mortgagor  does  not  have  the  effect  to  keep 
the  mortgage  on  foot  as  against  the  homestead  right.^ 

1197.  Presumption  of  payment  is  repelled  by  circumstances 
which  evince  an  improbability  of  any  discharge,'*  as  well  as  by  an 
express  acknowledgment  of  the  debt,  or  by  acts  recognizing  it. 
Thus,  this  presumption  has  been  considered  as  answered  by  show- 
ing that  the  mortgage  debt  belonged  to  the  mother  of  the  owner 
of  the  estate  mortgaged,  and  that  she  had  not  permitted  the  title 
deeds  to  be  delivered  to  him.^ 

The  fact  that  the  mortgagor  is  the  son,  brother,  or  other  near 
relation  of  the  mortgagee,  and  proof  that  he  intentionally  permit- 
ted the  mortgagor  to  occupy  the  land  without  payment  of  interest, 
though  for  more  than  twenty  years,  are  sufficient  to  rebut  the  pre- 
sumption of  paj^ment.^ 

But  the  fact  that  the  mortgage  and  bond  secured  thereby  remain  ' 
in  the  possession  of  the  mortgagee  does  not  repel  the  inference  of 
payment  which  arises  from  lapse  of  time." 

It  has  even  been  held,  in  a  case  where  it  was  shown  that  the 
parties  to  a  bond  resided  in  a  country  which  was  occupied  by  con- 
tending armies,  and  was  in  such  a  disturbed  condition  as  to  ren- 
der it  highly  improbable  that  debts  could  or  would  be  collected, 
the  time  during  which  the  war  continued  should  not  be  computed 
as  forming  any  part  of  the  time  whose  lapse  gives  rise  to  a  pre- 
sumption»of  payment.^  But  ordinarily  the  absence  of  the  mort- 
gagor from  the  State  when  the  cause  of  action  accrues  or  after- 
wards does  not  suspend  or  prevent  the  statute  of  limitations  from 
running  against  a  suit  to  foreclose  the  same,  for  the  reason  that 
the  remedy  may  be  as  well  pursued  during  his  absence  as  in  his 
presence.^ 

1198.  A  payment  of  interest  or  part  of  the  principal  renews 
the  mortgage,  so  that  an  action  may  be  brought  to  enforce  it  within 

1  Kelly    V.    Leachman    (Ida.),   33    Pac.  ^  Leman  v.  Newnham,  1  Ves.  Sen.  51. 
Rep.  44.  6  Philbrook  v.  Clark,  77  Me.  176. 

2  See  §  1190.  '^  Ray  v.  Pearce,  84  N.  C.  485. 

3  Wells  V.  Harter,  56  Cal.  342,  7  Reporter,  «  Hale  v.  Pack,  10  W.  Va.  145. 

266.  9  EiJ banks  v.  Leveridge,  4  Sawyer,  274  ; 

*  Brobst    V.   Brock,    10    AVallace,    519;    Anderson  j;.  Baxter,  4  Oreg.  105,  107. 
Suavely  v.  Pickle,  29  Gratt.  27  ;  Lewis  v. 
Schwenn,  93  Mo.  26,  2  S.  W.  Rep.  391. 
150 


WHEN   THE   RIGHT    TO   FORECLOSE   IS   DEBARRED.         [§  1198. 


twenty  years  after  such  last  payment.  This  is  a  rule  universally 
recognized.^  Where  there  are  several  persons  interested  in  the 
equity  of  redemption,  such  payment  by  one  of  them  keeps  alive 
the  right  of  entry  not  only  against  him,  but  also  against  all  other 
owners  of  the  equity.^  Payment  by  an  agent  of  the  mortgagor,  as, 
for  instance,  by  his  solicitor,  has,  of  course,  the  same  effect  as  a 
payment  by  the  mortgjtgor  himself;^  but  payment  by  a  stranger 
does  not  affect  the  mortgagor's  rights.*  Acknowledgment  of  the 
debt  made  to  a  stranger  does  not  avoid  the  running  of  the  statute 
of  limitations.^  Payments  of  interest  by  a  tenant  for  life  are  bind- 
ing upon  those  entitled  to  the  remainder;^  and  payments  by  the 
widow   of  the   mortgagor,  while  in   possession   under   her  right   of 


^  Lewis  V.  Schwenn,  93  Mo.  26,  2  S.  W. 
Rep.  391;  Schifferstein  v.  Allison,  123  111. 
662,  15  N.  E.  Hep.  275;  Martin  v.  Bowker, 
19  Vt.  526 ;  Barrett  v.  Prentiss,  57  Vt. 
297  ;  Barron  v.  Kennedy,  17  Cal.  574 ;  Kelly 
V.  Leachman  (Ida.),  33  Pac.  Rep.  44;  Hol- 
lister  V.  York,  59  Vt.  1,  9  All.  Rep.  2; 
Carson  v.  Cochran  (Minn),  53  N.  W.  Rep. 
1130;  Ely  v.  Bush,  89  N.  C.  358;  Blair  v. 
Carpenter,  75  Mich.  167,  42  N.  W.  Rep. 
790;  Moore  v.  Beamau,  112  N.  C.  558,  16 
S.  E.  Rep.  177;  Gay  v.  Hassam  (Vt.),  24 
Atl.  Rep.  715;  Kendall  v.  Tracy,  64  Vt. 
522,  24  Atl.  Rep.  1118. 

In  South  Carolina  it  is  provided  by  stat- 
ute, G.  S.  1882,  §  1871,  passed  in  1879,  that 
no  mortgage,  or  other  lien  on  real  estate, 
shall  constitute  a  lien  on  any  real  estate 
after  the  lapse  of  twenty  years  from  the 
date  of  the  creation  of  the  same,  provided 
that,  if  the  holder  thereof  shall,  at  any  time 
during  the  continuance  of  such  lien,  cause 
to  be  recorded  upon  the  record  of  such 
mortgage,  etc.,  or  file  with  the  record  there- 
of, a  "  note  of  some  payment  on  account," 
or  some  written  "acknowledgment  of  the 
debt,"  such  mortgage,  etc.,  shall  continue  to 
be  a  lien  for  twenty  years  from  the  date  of 
the  record  of  such  payment  or  acknowledg- 
ment. It  is  held,  however,  that  the  recording 
of  an  assignment  of  a  mortgage  before  the 
expiration  of  the  twenty  years  was  neither  a 
"  note  of  some  payment  on  account,"  nor  an 
"acknowledgment  of  the  debt,"  within  the 
statute.  Curtis  v.  Renneker,  34  S.  C.  468, 
13  S.  E.  Rep.  664.  This  ease  also  holds 
that  the  statute  does  not  apply  to  mort- 
gages executed  prior  to  its  pas.-age. 

As  to  evidence  of  payment  in  services, 


see  United  States   Trust  Co.  v.  Stanton,  8 
N.  Y.  Supp.  756. 

2  Pears  V.  Laing,  L.  R.  12  Eq.  41,  51,  54; 
Kendall  v.  Tracy,  64  Vt.  522,  24  Atl.  Rep. 
1118;  HoUister  v.  York,  59  Vt.  1,  9  Atl. 
Rep.  2;  Richmond  v.  Aiken,  25  Vt.  324; 
Gay  V.  Hassam  (Vt.),  24  Atl.  Rep.  715, 
quoting  text;  Emory  v.  Keighan,  88  111. 
482;  Roddam  v.  Morley,  1  De  G.  &  J.  1. 
In  the  latter  case,  it  was  held  that  a  pay- 
ment of  interest  by  the  tenant  for  life  of  a 
devised  estate  keeps  a  specialty  alive  against 
the  persons  entitled  to  the  remainder. 
Lord  Cranworth,  in  the  Court  of  Appeals, 
said  :  "  Who  is  affected  by  the  payment  1 
Does  it  operate  against  the  party  only  by 
whom  the  payment  is  made  1  or  does  it 
affect  all  the  other  parties  liable  ?  Does  it 
merely  enable  the  creditor  to  sue  the  party 
by  whom  the  payment  was  made,  or  does  it 
set  free  the  action  generally  1  I  have  come 
to  the  conclusion  that  when  a  part  payment 
or  payment  of  interest  has  been  made, 
which  has  the  effect  of  preserving  any  right 
of  action,  that  right  will  be  saved  not  only 
against  the  party  making  the  payment,  but 
also  against  all  other  parties  liable  on  the 
specialty."  He  further  says  that,  as  the 
statute  does  not  so  restrict  the  effect  of 
the  payment,  the  court  cannot  restrict  it. 

3  Ward  V.  Carttar,  L.  R.  1  Eq.  29 ;  Blair 
V.  Carpenter,  75  Mich.  167,  42  N.  W.  Rep. 
790. 

*  Chinnery  v.  Evans,  11  H.  L.  C.  115. 

s  Schmucker  v.  Sibert,  18  Kaus.  104, 
26  Am.  Rep.  765. 

6  Roddam  v.  Morley,  1  De  G.  &  J.  1  ; 
Toft  V.  Stephenson,  1  De  G.,  M.  &  G.  28, 
40;  Pears  v.  Laing,  L.  R.  12  Eq.  41. 

151 


§  1198.]        WHEN    THE   RIGHT    TO    FORECLOSE   IS   DEBARRED. 

dower,  prevent  the  statute  running  against  the  mortgagee  in  favor 
of  the  heirs  at  law.^  Payments  upon  a  note  by  the  principal  debtor 
serve  to  keep  it  alive  both  against  him  and  a  surety  upon  it.^  Pay- 
ments of  interest  by  a  husband  upon  his  note  secured  b}^  a  mort- 
gage upon  the  separate  real  estate  of  his  wife  operate  to  keep 
alive  the  mortgage  security.^  Payments  made  by  the  principal 
debtor  after  the  death  of  the  surety  prevent  the  pleading  of  the 
statute  by  the  surety's  personal  representative,  in  case  the  liability 
is  upon  a  mortgage,*  though,  where  the  liability  is  merely  personal, 
there  are  authorities  that  hold  that  such  payments  will  not  prevent 
the  surety's  representatives  from  pleading  the  statute.^ 

But  payments  made  by  one  of  several  promisors  after  the  com- 
pletion of  the  bar  of  the  statute  do  not,  at  the  common  law,  serve 
to  keep  alive  the  demand  as  against  any  one  but  the  person  mak- 
ing the  payments.^  "  The  reason  of  this  distinction  lies  in  the 
principle  that,  by  withdrawing  from  a  joint  debtor  the  protection 
of  the  statute,  he  is  subjected  to  a  new  liability  not  created  by  the 
original  contract  of  indebtedness."" 

But  a  payment  made  by  a  mortgagor  after  he  has  sold  or  mort- 
gaged the  premises  to  another  will  not  repel  the  presumption  of 
payment  arising  after  the  lapse  of  twenty  years  from  the  time  when 
the  mortgage  became  due,  so  far  as  the  subsequent  purchaser  or 
mortgagee  is  concerned.^  Neither  does  a  lease  from  a  mortgagee  ^ 
to  his  mortgagor,  more  than  twenty  years  after  the  maturity  of  the 
mortgage  debt,  affect  the  rights  of  a  subsequent  purchaser  or  mort- 
gagee of  the  property .^*^ 

If  the  mortgagee  be  a  tenant  for  life  of  the  mortgaged  estate, 
and  as  such  receives  the  rents,  the  statute  does  not  run  against  the 
mortgage  title.^^  The  concurrence  of  the  tenancy  for  life,  and  the 
right  to  receive  the  interest  on  the  mortgage  in  the  same  individual, 
renders  it  impossible  for  him  to  make  any  acknowledgment  of  that 

1  Ames  V.  Mannering,  26  Beav.  583.  Sigourney   v.    Drury,    14    Pick.  387,  391; 

■■i  Whitcomb  v.  Wliitiug,  2  Dougl.  652  ;  Ellicott  v.  Nichols,  7  Gill,  85. 

Wyatt  V.  Hoilson,  8  Bing.  309  ;  Burleigh  v.  "^  Cross  v.  Allen,  141  U.  S.  528,  12  Sup. 

Stott,  8  B.  &  C.  36  ;    Maitiziuger  v.  Mohr,  Ct.  Rep.  67. 

41  Mich.  685  ;  National  Bank  v.  Cotton,  53  »  Hubbard  v.  Mo,  Valley  L.  Ins.  Co.  25 

Wis.  31,  9  N.   W.  Rep.  926;    Quimby  v.  Kans.  172.     To  the  contrary  see  Barrett  v. 

Putnam,  28  Me.  419.  Prentiss,  57  Vt.  297. 

3  Cross  r.  Allen,  141   U.  S.  528,  12  Sup.  9  New  York   Life  Ins.    &   Trust    Co.  v. 

Ct.  Rep.  67.  Covert,  29  Barb.  435. 

*  Cross  V.  Allen,  141  U.  S.  528,  12  Sup.  i^  Jarvis  v.  Albro,  67  Me.  310. 

Ct.  Rep.  67.  11  Wynn  v.  Styan,  2  Ph.  303;  Carbery  v. 

s  2  Parsons  Bills  and  Notes,  659  ;  Lane  Preston,  13  Ir.  Eq.  455;  Burrell  v.  Egre- 

V.  Doty,  4  Barb.  530.  mont,  7  Beav.  205. 

6  Atkins   V.   Tredgold,  2   B.    &-  C.   23 ; 

152 


WHEN   THE   RIGHT    TO   FORECLOSE   IS   DEBARRED.       [§§  1199,  1200. 

title  to  himself;  but  it  being  his  duty  as  such  tenant  to  keep  clown 
the  interest,  the  law  will  presume  that  he  does  so  out  of  the  rents 
received  by  him.  This  rule  being  in  favor  of  the  remainder-men,  they 
cannot  afterwards  be  permitted  to  contend  that  the  interest  thus 
deemed  to  have  been  kept  down  for  their  benefit  was  not  in  fact 
paid,  and  that  the  right  to  enforce  the  mortgage  is  barred  by  the 
statute;  under  such  circumstances  the  statute  of  limitations  cannot 
be  applied  against  the  mortgage.  The  presumption  of  payment  or 
release  of  the  mortgage,  arising  from  twenty  years'  possession  by 
the  mortgagor,  may  be  repelled  by  evidence  of  the  payment  of 
interest,  of  a  promise  to  pay,  or  of  an  acknowledgment  that  the 
mortgage  is  still  existing.^ 

Under  a  mortgage  which  by  its  terms  is  to  be  paid  out  of  the 
rents  and  profits  of  the  property,  the  statute  does  not  run  against 
the  mortgagee. .  The  mortgage  creates  a  trust  which  is  designed  to 
run  indefinitely.^ 

The  receipt  of  rents  and  profits  by  one  holding  only  an  equitable 
mortgage  has  been  held  to  be  equivalent  to  a  part  payment.-^ 

1199.  If  land  subject  to  a  mortgage  be  sold  to  different  pur- 
chasers, one  of  whom  pays  the  entire  interest  for  more  than 
twenty  years  without  calling  on  the  purchaser  of  another  portion 
for  contribution,  the  former  cannot,  upon  purchasing  the  mortgage, 
enforce  it  against  the  latter  or  his  grantee.*  After  such  a  lapse  of 
time,  by  analogy  to  the  statute  of  limitations,  it  would  seem  that  a 
court  of  equity  should  conclusively  presume  that  the  parties  had 
agreed  the  hitter's  portion  should  not  be  regarded  as  subject  to  the 
mortgage.  Of  course  the  holder  of  the  mortgage,  having  received 
the  payments  exclusively  from  one  part-owner,  would  not  by  that 
fact  alone  be  precluded  from  subjecting  to  a  foreclosure  the  whole 
property  which  his  mortgage  covered.  He  would  have  no  reason 
to  know  or  inquire  from  whom  the  interest  came,  or  to  whom  the 
mortgagor  had  sold  the  land.  But  the  conduct  of  the  grantees  of 
the  equity  of  redemption  in  respect  to  the  interest  has  a  direct  bear- 
ing upon  the  question  which  of  them  is  liable  for  the  payment  of 
the  principal. 

1200.  The  payment  of  taxes  by  the  owner  of  the  equit}'  of  re- 
demption does  not  in  any  way  contribute  to  make  his  possession 
hostile  to  the  mortgagee;  nor  does  it  give  him  any  rights  against 

1  Hough  u.  Bailey,  32  Conn.  288;  Bacon  '-^  Charter  Oak  L.  Ins.  Co.    i'.   Stephens 

V.  Mclntire,  8  Met.  87  ;   Howland  v.  Shurt-  (Utah),  15  Pac.  Rep.  253. 

leff,  2  Met.  26,  35  Am.  Dec.  384;  Ayres  i'.  ^  Brocklehurst  i\  Jessop,  7  Sim.  438. 

Waite,  10  Cush.  72.  4  pj^e  y.  Gooduow,  12  Allen,  472. 

153 


§§  1201,  1202.]       WHEN   THE   RIGHT    TO    FORECLOSE   IS   DEBARRED. 

the  mortgagee  under  a  statute  making  seven  yeai's'  payment  of 
taxes  with  a  record  title,  or  a  colorable  one  and  possession,  a  bar  to 
any  adverse  rights  or  proceedings  ;  for  it  is  his  duty  while  in  pos- 
session to  pay  the  taxes,  and  the  mortgagee  may  well  regard  the 
payment  as  made  in  his  interest  and  not  in  subversion  of  it.^ 

1201,  A  purchaser  assuming  the  payment  of  a  mortgage 
recognizes  it  as  a  subsisting  incumbrance,  and  cannot  set  up  the 
statute  of  limitations  against  it  until  twenty  years  from  that  time 
have  elapsed.  His  grantee  is  also  bound  by  such  admission  to  the 
same  extent  that  he  was  himself  bound.^  A  recital  in  a  deed  or 
mortgage  that  the  premises  are  subject  to  a  prior  mortgage  has  the 
same  effect.^  It  constitutes  an  admission  that  removes  the  bar  of 
the  statute  as  to  parties  to  the  deed. 

Moreover,  any  purchaser  from  the  mortgagor,  with  actual  or  con- 
structive notice  of  the  mortgage,  is  bound  by  any  previous  acknow- 
ledgment of  the  debt  by  his  grantor.* 

1202.  The  mortgagor's  grantee  has  no  greater  rights  against 
the  mortgagee  than  the  mortgagor  himself.  A  purchaser  with 
actual  notice  of  the  mortgage,  or  constructive  notice  by  means  of  a 
registry,  can  avail  himself  of  the  presumption  of  payment  from 
lapse  of  time  only  when  the  mortgagor  could  avail  himself  of  it 
under  the  same  circumstances.  The  grantee  succeeds  to  the  estate 
and  occupies  the  position  of  his  grantor.  He  takes  subject  to  the 
incumbrance  ;  and  his  title  and  possession  are  no  more  adverse  to 
the  mortgagee  than  was  the  title  and  possession  of  the  mortgagor.^ 
The  purchaser  is  bound  by  the  acts  and  declarations  of  the  mort- 
gagor in  respect  to  the  mortgage  while  he  retains  the  equity  of 
redemption  or  any  part  of  it ;  as,  for  instance,  the  purchaser  of  a 
part  of  the  mortgaged  premises  cannot  claim  a  presumption  of 
payment  of  the  mortgage  from  lapse  of  time  when  this  presump- 
tion is  repelled  by  payments  of  interest  made  by  the  mortgagor 
within  twenty  years,  or  by  his  admission  within  this  time  that  the 
mortgage  was  then  subsisting.*"     A  purchaser  from  the  mortgagor 

1  See  §§   679,  680;  Medley  v.  Elliott,  62  ran  (Minn.),  53  N.  W.  Rep.  1130,  1132,  per 

111.  .532;    Wright  v.  Langley,  36   III.  381;  Mitchell,  J. 

Hagau  V.  Parsons,  67  111.  1 70.  ^  Medley  v.  Elliott,  62  111.  532 ;  "Water- 

^  §744;   Harrington  v.  Slade,  22  Barb,  son  v.   Kirkwood,  17  Kans.  9;  Grether  v. 

161  ;    Schmucker  v.  Sibert,  18  Kans.  104,  Clark,  75   Iowa,  383,  39  N.  W.  Rep.  655, 

26  Am.  Rep.  765.  9  Am.  St.  Rep.  491  ;  Kendall  v.  Tracy,  64 

3  Palmer  v.  Butler,  36  Iowa,  576 ;   Moore  Vt.  522,  24  All.  Rep.  1118. 

V.  Clark,  40  N.  J.  Eq.  152.  6  Heyer  v.  Pruyn,  7  Paige,  465,  34  Am. 

*  Heyer  y.  Pruyn,  7  Paige,  465 ;  Hughes  Dec.  355;    Hughes  v.  Edwards,  9  Wheat. 

V.  Edwards,  9  Wheat.  489 ;  Carsou  v.  Coch-  489.      Mr.   Justice   Washington  upon   this 

154 


WHEN   THE   RIGHT   TO   FORECLOSE   IS   DEBARRED.      [§  1202. 

stands  in  no  better  position  than  the  mortgagor  himself  as  to  gain- 
ing title  by  possession  and  lapse  of  time,  if  the  mortgage  be  re- 
corded. The  record  is  notice  of  tlie  mortgage  to  a  subsequent  pur- 
chaser ;  and  the  mere  fact  that  he  has  had  actual  possession  under 
his  purchase  for  the  statute  period  of  limitation  is  no  bar  to  a  fore- 
closure of  the  mortgage. 1 

But  when  a  note  and  mortgage  are  once  barred,  although  the 
mortgagor  may,  by  a  subsequent  part  payment,  promise,  or  acknow- 
ledgment, revive  the  mortgage,  so  far  as  it  affects  his  own  interest 
in  the  premises,  he  cannot  revive  it  as  against  his  grantee,  or  any 
other  parties  who  have  acquired  interest  in  the  premises  prior  to 
such  revivor.2  But  such  renewal  will  revive  the  mortgage  as  against 
a  junior  mortgagee  whose  mortgage  was  taken  before  the  statute 
of  limitations  ran  against  the  prior  mortgage,  if  no  new  equities 
were  acquired  by  the  junior  mortgagee  after  the  statute  had  run 
and  before  the  debt  was  renewed.  The  junior  mortgagee,  after  the 
bar  of  the  statute  has  been  removed  by  the  new  promise,  is  in  no 
different  condition  than  he  was  when  he  acquired  his  interest.^ 

In  California,  however,  it  is  the  settled  doctrine  that  the  mort- 
gagor has  no  power  by  stipulation  to  prolong  the  time  of  payment 
of  his  mortgage  as  against  others  who  have  acquired  interests  in 
the  equity  of  redemption,  either  as  subsequent  incumbrancers  or 
purchasers  of  the  equity  of  redemption;^  for  against  them  he  can 
neither  suspend  the  running  of  the  statute  of  limitations  by  an  ex- 
press waiver  nor  by  his  voluntary  act  in  absenting  himself  from  the 
State. ^  In  fact,  under  the  provisions  of  the  code  of  this  State  a 
mortgage  can  only  be  renewed  by  a  writing  executed  with  the  for- 
malities required  in  the  case  of  the  original  mortgage.  The  mort- 
gage cannot  be  renewed  simply  by  a  renewal  of  the  note.^ 

point  said:    "It  is  insisted  that,  although  3  Herndt  v.  Porterfield  (Iowa),  9  N.  W. 

these  aclcnowledgments  may  be  sufficient  to  Rep.    322;   Johnson   r.   Lasker   Real   Est. 

deprive  the  mortgagor  of  a  right  to  set  up  Asso.  (Texas),  21    S.  W.  Rep.  961  ;  Whit- 

the   presumption    of    payment   or   release,  tacre  v.  Fuller,  .5  Minn.  508 ;  "Ware  i7.  Ben- 

they   cannot   affect   the   other    defendants,  nett,  18  Tex.  794  ;  Heyer  r.  Pruyu,  7  Paige, 

who  purchase  from  him  parts  of  the  mort-  465 ;  Hughes  v.  Edwards,  9  Wheat.  489. 

gaged  premises  for  a  valuable  consideration.  *  Sichel  v.  Carrillo,  42  Cal.  493  ;  Barber 

The  conclusive  answer  to  this  argument  is,  v.  Babel,  36  Cal.  11  ;  Lent  v.  Shear,  26  Cal. 

that  they  were  purchasers   with  notice  of  361. 

this  incumbrance."  f>  Wood  v.  Goodfellow,  43  Cal.  185.    The 

1  Thayer  v.  Cramer,  1  McCord  Ch.  395 ;  authority  and  correctness  of  this  decision  is 
Mitchell  y.Bogan,  11  Rich.  686,  706  ;  Wright  denied  in  Waterson  v.  Kirkwood,  17  Kans. 
V.  Eaves,  5  Rich.  Eq.  81  ;  Norton  v.  Lewis,  9;  Schmucker  v.  Sibert,  18  Kans.  104,  26 
3  S.  C.  25;  Lynch  v.  Hancock,  14  S.  C.  66.  Am.  Rep.  765  ;  Clinton  County  v.  Cox,  37 

2  Schmucker  v.  Sibert,  18  Kans.  104,  26  Iowa,  570. 

Am.  Rep.  765.  6  Wells  v.  Harter,  56  Cal.  342. 

155 


§§  1203,  1204.]       WHEN    THE   RIGHT    TO   FORECLOSE   IS   DEBARRED. 

Neither  has  the  mortg;igor's  widow  who  has  released  her  dower, 
or  who  has  no  dower  as  in  the  case  of  a  purchase-money  mortgage, 
greater  rights  as  against  the  mortgagee  than  her  husband  had.^ 

1203.  The  statute  of  limitations  does  not  discharge  the 
debt  or  extinguish  the  right,  but  only  takes  away  the  remedy. 
This  is  the  rule  even  in  California  and  other  States  where  it  is  held, 
as  already  noticed,  that  when  the  debt  is  barred  the  mortgage  is 
also  rendered  unavailable.  The  debt  and  the  mortgage  are  distinct 
causes  of  action,  and  distinct  remedies  may  be  pursued  upon  them.^ 
The  recent  English  Statutes  of  Limitations,  beginning  with  that  of 
William  IV.,  operate  by  their  direct  terras  as  a  bar  to  the  right, 
and  not,  like  the  statute  of  James  I.,  upon  which  the  statutes  in 
this  country  are  generally  founded,  as  a  bar  to  the  remedy  only.^ 
The  effect,  therefore,  of  the  new  enactments  in  England  is  not  sim- 
ply to  exclude  the  recovery,  but  to  transfer  the  estate.^  "  This," 
says  Lord  St.  Leonards,  "is  a  great  improvement."^  This  change 
in  the  statute  does  not  affect  the  questions  under  consideration,  in- 
asmuch as  the  recent  acts  have  contained  special  provisions  relating 
to  mortgages.  In  America  the  statutes  of  limitation  being  gen- 
erally founded  upon  the  earlier  English  statutes,  the  same  doctrine, 
that  the  effect  of  the  statute  is  merely  to  take  away  the  remedy 
and  not  to  extinguish  the  debt,  which  prevailed  in  England  under 
those  statutes,  prevails  here  as  well.^ 

The  commencement  of  foreclosure  proceedings  arrests  the  run- 
ning of  the  statute  of  limitations,  even  as  against  persons  who  are 
not  made  parties  to  the  suit." 

1204.  Though  the  debt  be  barred  the  lien  may  be  enforced. 

1  Leonard  v.  Binford,  122  Ind.  200,  23  in  Dundee  Harbor  v.  Dougall,  1  Macq.  H. 
N.  E.  Kep.  704.     Per  Olds,  J.  :  "  So  long  as    L.  C.  321. 

the  mortgage  is  in  full  force,  and  not  barred  °  Charley's  Real  Prop.  Acts,  3d  ed.  p.  26. 

by  the  statute  of  limitations  as  to  the  hus-  <'  Waltermire  v.  Westover,  14  N.  Y.  16; 

band,   it   is   also   in  full  force  against  the  Pratt  v.  Huggins,  29   Barb.  277.     In    this 

wife."    Citing  Catterlin  V.Armstrong,  101  case  Mr.  Justice    Hogeboom  said:  "It  is 

Ind.   258,  79  Ind.  514;   ^tna  Ins.  Co.  v.  said  that  the  note,  from  the  lapse  of  time, 

Finch,  84  Ind.  301 ;  Walters  v.  Walters,  73  is  presumed  to  be  paid.     Not  altogether  so  ; 

Ind.  425 ;   May  v.  Fletcher,  40  Ind.  575 ;  for  the  law  allows  a  suit  upon  it,  and  a 

Baker  v.  McCune,  82  Ind.  339,  585;  Bow-  recovery,  unless  the  statute  of  limitations  is 

man  v.  Mitchell,  97  Ind.  155.  pleaded.     It  is  therefoi-e,  at  most,  but  a  pre- 

2  Sichel  V.  Carrillo,  42  Cal.  493 ;  Low  v.  sumption  ;  suffered  to  be  overthrown,  it  is 
Allen,  26  Cal.  141 ;  Lent  v.  Shear,  26  Cal.  true,  only  in  one  way,  and  that  is  by  proof 
361 ;  Grant  v.  Burr,  54  Cal.  298.  of  payment  thereon,  or  recognition  thereof, 

^  Beckford  v.  Wade,  17  Ves.  87;  Incor-  in    the   way   pointed    out   in    the    statute, 

porated  Society  v.  Kichanls,  1  Dru.  &  War.  This,  however,  as  before  stated,  only  acts 

258,  289  ;  Higgins  v.  Scott,  2  B.  &  Ad.  413.  upon  the  remedy." 

4  3  &  4  Will.  IV.  ch.  27,  §  34,  37  &  38        '  Emory  v.  Keighan,  88  111.  482;  Kibbe 

Vict.  ch.  57.     See  per  Lord  St.  Leonards,  v.  Thompson,  5  Biss.  206. 

156 


WHEN    THE   RIGHT    TO    FORECLOSE   IS    DEBARRED.         [§  1204. 

The  fact  that  a  debt  secured  by  a  mortgage  is  barred  by  a  statute 
of  limitations  does  not  necessarily,  or  as  a  general  rule,  extinguish 
the  mortgage  security,  or  prevent  the  maintaining  of  an  action  to 
enforce  it.^  The  statute  of  limitations  does  not  in  any  way  upply 
to   the   mortgage  security.      This    remains  in   force  until  the  debt 


1  England :  Higgins  v.  Scott,  2  B.  &  Ad. 
413  ;  Spears  v.  Hartly,  3  Espin.  81.  United 
States :  Sparks  v.  Pico,  1  McAlI.  497  ; 
Sturges  V.  Crowninshield,  4  Wlieat.  12'i; 
Hughes  V.  Edwards,  9  Wheat.  489  ;  Uuiou 
Bank  of  Louisiana  v.  Stafford,  12  How. 
327,  340;  Townsend  v.  Jemisou,  9  How. 
407,  413;  M'Elmoyle  v.  Cohen,  13  Pet.  312. 
Arkansas:  Birnie  v.  Main,  29  Ark.  591; 
Coldcleugh  v.  Johnson,  34  Ark.  312.  Now 
by  Acts  1887,  ch.  104,  barred  when  debt  is 
barred.  Connecticut :  Baldwin  v.  Norton,  2 
Conn.  163 ;  Hough  v.  Bailey,  32  Conn.  288  ; 
Belknap  v.  Gleason,  11  Conn.  160,  27  Am. 
Dec.  721.  Florida:  Browne  v.  Browne,  17 
Fla.  607,  35  Am.  Rep.  96  ;  Jordan  v.  Sayre, 
24  Fla.  1.  Georgia:  Elkins  v.  Edwards,  8 
Ga.  325.  Idaho:  Kelly  i-.  Leachman  (Ida.), 
33  Pac.  Rep.  44.  Indiana :  Where  the  mort- 
gage contains  a  covenant  to  pay  the  debt 
secured.  Crawford  v.  Hazelrigg,  117  Ind. 
63,  18  N.  E.  Rep.  603.  Kentucky:  Kellar 
t-.  Sinton,  14  B.  Mon.  307.  Maine:  Crocker 
V.  Holmes,  65  Me.  195,  20  Am.  Rep.  687; 
Joy  V.  Adams,  26  Me.  330.  Maryland : 
Ohio  Life  Ins.  &  Trust  Co.  v.  Winn, 
4  Md.  Ch.  Dec.  253.  Massachusetts  : 
Thayer  v.  Mann,  19  Pick.  .535  ;  Eastman  v. 
Foster,  8  Met.  19  ;  Crain  v.  Paine,  4  Cash. 
483,  1  Am.  Dec.  807;  Ball  v.  Wyeth,  8 
Allen,  275;  Norton  v.  Palmer,  142  Mass. 
433, 8  N.  E.  Rep.  346.  Michigan  :  Mich.  Ins. 
Co.  V.  Brown,  11  Mich.  266.  Mississippi: 
Wilkinson  v.  Flowers,  37  Miss.  579,  75  Am. 
Dec.  78  ;  Nevitt  v.  Bacon,  32  Miss.  212,  62 
Am.  Dec.  609  ;  Trotter  v.  Erwin,  27  Miss. 
772.  Missouri:  Lewis  v.  Schwenn,  93  Mo. 
26,  2  S.  W.  Rep.  391  ;  Wood  v.  Augustine, 
61  Mo.  46;  Cape  Girardeau  Co.  v.  Harbi- 
son, 58  Mo.  90;  Chouteau  v.  Burlandu, 
20  Mo.  482;  Tucker  v.  Wells  (Mo.),  20  S. 
W.  Rep.  114;  Benton  Co.  v.  Czarlinsky, 
101  Mp.  275,  14  S.  W.  Rep.  114;  Booker  v. 
Armstrong,  93  Mo.  49,  4  S.  W.  Rep.  727  ; 
Orr  V.  Rode,  101  Mo.  387,  13  S.  W.  Rep. 
1066 ;  Louis  v.  Priest,  103  Mo.  652, 15  S.  W. 
Rep.  988  ;  Gardner  v.  Terry,  99  Mo.  523,  12 
S.  W.  Rep.  888  ;  Combs  v.  Goldsworthy,  109 


Mo.  151, 18  S.W.  Rep.  1130.  Nevada  :  Henry 
V.  Confidence  Gold  &  Silver  M.  Co.  1  Nev. 
619;  Read  v.  Edwards,  2  Nev.  262;  Mackie 
V.  Lansing,  2  Nev.  302 ;  Cookes  v.  Culbert- 
son,  9  Nev.  199.  New  Jersey:  Barned  v. 
Earned,  21  N.  J.  Eq.  245.  New  York: 
Waltermire  v.  Westover,  14  N.  Y.  16,  20; 
Pratt  V.  Huggins,  29  Barb.  277  ;  Heyer  v. 
Prnyn,  7  Paige,  465,  34  Am.  Dec.  355,  in 
which  Chancellor  Walworth  denies  the  au- 
thority to  the  contrary  of  Jackson  v.  Sackett, 
7  Wend.  94 ;  Hulbert  v.  Clark,  1 1  N.Y.  Supp. 
417,57  Hun,  558;  Gillette  t;.  Smith,  18  Hun, 
10;  Kincaid  v.  Richardson,  9  Abb.  N.  C.  315  ; 
In  re  Latz,  33  Hun,  622.  North  Carolina  : 
Capehart  v.  Dettrick,  91  N.  C.  344  ;  Eraser 
V.  Bean,  96  N.  C.  327  ;  Overman  v.  Jack- 
son, 104  N.  C.  4.  Ohio:  Fisher  v.  Moss- 
man,  1 1  Ohio  St.  42  ;  Gary  v.  May,  16  Oliio, 
66;  Longworth  v.  Taylor,  2  Cin.  Sup.  Ct. 
Rep.  39.  Oregon :  Myer  v.  Beal,  5  Oreg. 
130.  South  Carolina  :  Nichols  v.  Briggs,  18 
S.  C.  473  ;  Dearman  v.  Trimmier,  26  S.  C. 
506,  2  S.  E.  Rep.  501,  505,  per  Mclver,  J. 
Tennessee :  Harris  v.  Vaughn,  2  Tenn. 
Ch.  483.  Texas :  Fievel  v.  Zuber,  67  Tex. 
275 ;  Goldfrank  v.  Young,  64  Tex.  432, 
overruling  Blackwell  v.  Barnett,  52  Tex. 
326,  331  ;  King  v.  Brown,  80  Tex.  276,  16 
S.  W.  Rep.  39.  An  agreement  by  the  mort- 
gagee to  extend  the  right  to  redeem,  and  not 
to  foreclose  for  a  specified  time,  does  not 
extend  the  personal  liability  of  the  mort- 
gagor beyond  the  time  when  it  would  other- 
wise be  barred  by  the  statute  of  limitations. 
Vermont :  Richmond  v.  Aiken,  25  Vt.  324. 
Virginia  :  Smith  v.  Washington  City,  &c.  R. 
R.  Co.  33  Gratt.  617  ;  Coles  v.  Withers,  33 
Gratt.  186;  Hanna  v.  Wil.son,  3  Gratt.  243, 
46  Am.  Dec.  190.  Wisconsin  :  Cleveland  v. 
Harrison,  15  Wis.  670;  Wiswell  v.  Baxter, 
20  Wis.  680;  Whipple  v.  Barnes,  21  Wis. 
327;  Knox  v.  Galligan,  21  Wis.  470;  Ken- 
nedy V.  Knight,  21  Wis.  .340,  94  Am.  Dec. 
543 ;  Potter  v.  Stransky,  48  Wis.  235,  4  N. 
W.  Rep.  95  ;  Cerney  v.  Pawlot,  66  Wis.  262, 
28  N.  W.  Rep.  183;  Phelan  v.  Fitzpatrick 
(Wis.),  54  N.W.  Rep.  614. 

157 


§§  1205,  1206.]       WHEN   THE   RIGHT    TO   FORECLOSE   IS   DEBARRED. 

wliicli  it  secures  is  paid.  Payment  may  be  established  not  only  by 
direct  evidence,  but  also,  by  the  presumption  of  law  arising  from 
the  lapse  of  twenty  years  from  the  time  when  the  cause  of  action 
accrued;  a  presumption  which  may  be  countervailed  by  evidence 
tending  to  show  a  contrary  presumption. ^ 

Where  the  legal  title  to  land  is  held  as  security  for  a  debt,  the 
equitable  owner  cannot  recover  such  title  without  paying  the  debt, 
though  an  action  for  the  debt  be  barred  by  limitation.^  Neither 
can  one  who  has  made  an  absolute  conveyance  to  secure  a  debt  have 
his  title  quieted  except  upon  condition  of  payment  of  the  debt  to 
secure  which  he  had  mortgaged  the  land,  notwithstanding  the  debt 
was  barred  by  the  statute  of  limitations.^ 

1205.  The  mortgagee  may  retain  possession  till  the  debt  is 
paid.  Although  the  right  to  proceed  by  action  on  the  mortgage  is 
barred,  still,  if  the  mortgagee  can  obtain  rightful  possession  of  the 
premises,  he  may  retain  them  until  the  debt  is  paid.*  But  after 
the  expiration  of  the  time  within  which  a  mortgage  may  be  en- 
forced by  foreclosure,  the  mere  entering  into  possession  by  the  mort- 
gagee, without  objection  on  the  part  of  the  mortgagor,  does  not 
restore  the  mortgage  to  efl&cacy,  or  entitle  the  mortgagee  to  the 
rights  of  a  mortgagee  in  possession.^ 

1206.  There  can  be  no  decree  for  the  deficiency  after  the  debt 
is  barred.  It  was  held,  however,  in  an  Arkansas  case,  that  a  court 
of  equity  is  not  precluded,  in  a  suit  for  the  foreclosure  of  the  mort- 
gage given  to  secure  the  debt,  from  rendering  a  decree  against  the 
mortgagor  for  any  remainder  of  the  debt  not  satisfied  by  the  sale. 
This  decision  was  made  on  the  ground  that  such  a  decree  is  an  inci- 
dent to  the  decree  of  foreclosure,  and  that  when  a  court  of  equity 
once  takes  jurisdiction  of  a  case  it  will  retain  it  for  the  purpose  of 
complete  relief.^  But  this  cannot  be  regarded  as  sound  law  ;  and  in 
other  States  a  judgment  for  a  deficiency  is  barred  when  the  debt  is 
barred,  though  an  action  to  foreclose  the  mortgage  is  not  barred.'' 

1  Joy  V.  Adams,  26  Me.  330,  333.  "  Hulbert  v.  Clark,  57  Hun,  558,  11  N.  Y. 

2  Phelau  V.  Fitzpatrick  (Wis.),  54  N.  W.  Supp.  417  ;  Michigan  Ins.  Co.  v.  Brown,  11 
Rep.  614.  Mich.  266  ;  Slinj^erland  v.  Sherer,  46  Minu. 

3  Booth  V.  Hoskins,  75  Cal.  271,  17  Pac.  422,  49  N.  W.  Kep.  237.  Mitchell,  J.,  said  : 
Rep.  225;  De  Cazara  v.  Orena,  80  Cal.  132,  "Avarietyof  cases  may  exist  where  the  right 
22  Pac.  Rep.  74.  to  enforce  the  mortgage  still  exists,  but  the 

*  See  §§  715,  716;  Henry  v.  Confidence  right  to  recover   a   personal  judgment  for 

Gold  &    Silver  M.  Co.  1   Nev.  619;   Van  the   debt  has   been   lost,  and  consequently 

Pyne  v.  Thayre,  14  Wend.  2.33  ;  Phyfe  v,  where  the   only   judgment  that    could    be 

Riley,  15  Wend.  248,  30  Am.  Dec.  55.  rendered  would  be  one  of  foreclosure.    But 

^  Banning  v.  Sabin,  45  Minn.  431,  48  N.  in  all  cases  of  foreclosure  it  is  necessary  to 

W.  Rep.  8.  have  a  judgment  adjudicating  the  amount 

•^  Birnie  v.  Main,  29  Ark.  591.  due  on  the  mortgage,  in  order  to  determine 

168 


WHEN   THE   RIGHT   TO   FORECLOSE   IS   DEBARRED.         [§  1207. 

1207.  In  a  few  States  the  mortgage  lien  is  discharged  when 
the  debt  is  barred.  The  statutes  in  these  States  limit  suits  in 
equity  in  the  same  manner  as  suits  at  law,  and,  the  debt  being- 
barred  by  the  statute,  the  mortgage  is  in  effect  extinguished. 
This  is  the  rule  established  in  California.  Chief  Justice  Field, 
giving  the  opinion  of  the  court,  in  addition  to  the  special  ground 
of  the  decision  founded  upon  the  peculiarity  of  the  statute  of  lim- 
itations of  that  State,  intimates  that,  by  the  doctrine  of  mortgages 
established  there,  when  the  debt  is  barred  by  the  statute  of  lim- 
itations, the  mortgage,  being  considered  a  mere  incident  to  it,  is 
also  barred,  or  at  least  rendered  unavailable  for  any  purpose.^  In 
fact  the  mortgage,  not  being  regarded  as  a  conveyance  in  fee,  but 
only  a  contract  creating  a  lien  or  charge  upon  the  property,  comes 
within  the  same  general  limitation  as  the  note  or  other  obliga- 
tion secured  by  it.  Just  as  much  as  the  note,  it  is  a  "  contract, 
obligation,  or  liability  founded  upon  an  instrument  in  writing," 
within  the  terms  of  the  statute.  The  same  rule  has  been  estab- 
lished in  Nevada,  Texas,  and  Nebraska,  upon  the  ground  that  the 
mortgage  is  a  mere  security  for  a  debt,  and  the  mortgagor  the 
owner  of  the  land.^     The  rule  is  established  by  statute  in  Arkan- 


the  sum  to  be  realized  out  of  the  security  ; 
and  in  eases  where,  for  any  cause,  the  phiin- 
tiff  is  not  entitled  to  a  personal  judgment 
for  the  debt,  this  is  its  onlv  purpose  and 
effect." 

1  Lord  V.  Morris,  18  Cal.  482.  Mr.  Chief 
Justice  Field  said  :  "The  statute  of  limita- 
tions of  this  State  differs  essentially  from 
the  statute  of  James  I.,  and  from  the  statutes 
of  limitations  in  force  in  most  of  the  other 
States.  Those  statutes  apply  in  their  terms 
only  to  particular  legal  remedies,  and  hence 
courts  of  equity  are  said  not  to  be  bound  by 
them  except  in  cases  of  concurrent  jurisdic- 
tion. In  other  cases  courts  of  equity  are 
said  to  act  merely  by  analogy  to  the  statutes, 
and  not  in  obedience  to  them.  Those  stat- 
utes, as  a  general  thing,  also  apply,  so  far  as 
actions  upon  written  contracts  not  of  record 
are  concerned,  only  to  actions  upon  simple 
contracts,  —  that  is,  contracts  not  undersea!, 
fixing  the  limitation  at  six  years,  and  leav- 
ing actions  upon  specialties  to  be  met  by 
the  presumption  established  by  tiie  rule  of 
the  common  law,  that  after  a  lapse  of  twenty 
years  the  claim  has  been  satisfied.  In 
those  statutes  where  specialties  are  men- 
tioned,  as    in    the    statutes   of    Ohio   and 


Georgia,  the  limitation  is  generally  fixed  at 
either  fifteen  or  twenty  years.  The  case  is 
entirely  different  in  this  State.  Here  the 
statute  applies  equally  to  actions  at  law  and 
to  suits  in  equity.  It  is  directed  to  the  sub- 
ject-matter, and  not  to  the  form  of  tiie  ac- 
tion, or  the  forum  in  which  the  action  is 
prosecuted.  Nor  is  there  any  distinction  in 
the  limitation  prescribed  between  simple 
contracts  in  writing  and  specialties.  Thus 
the  statute  requires  an  action  '  upon  any 
contract,  obligation,  or  liability  founded 
upon  an  instrument  of  writing,'  except  a 
judgment  or  decree  of  a  court  of  a  State  or 
Territory,  or  of  the  United  States,  to  be 
commenced  within  four  years  after  the  cause 
of  action  has  accrued.  .  .  .  We  do  not  ques- 
tion the  correctness  of  the  general  doctrine 
prevailing  in  the  courts  of  several  of  the 
States,  that  a  mortgage  remains  in  force 
until  the  debt  for  the  secuiify  of  which  it  is 
given  is  paid.  We  only  hold  that  the  doc- 
trine has  no  application  under  the  statute 
of  limitations  of  this  State."  See,  also. 
Low  V.  Allen,  26  Cal.  141 ;  Lent  v.  Moirill, 
25  Cal.  492. 

'^  Duty  V.  Graham,  12  Tex.  427,  62  Am. 
Dec.  534  ;    Wells   v.   Hartcr,  56  Cal.  342 ; 
159 


§  1207.]        WHEN    THE   RIGHT    TO    FORECLOSE   IS   DEBARRED. 

sas,i  IncHana,^  lowa,^  Illinois,^  Kansas,^  Mississippi,^  and  Missouri ;  ^ 
also  tlie  mortgage  is  regarded  as  a  mere  incident  following  the  debt, 
which  is  the  principal  thing,  for  which  it  stands  securit}',  and  there- 
fore the  remedy  upon  the  mortgage  is  barred  when  that  upon  the 
debt  is  lost,  and  not  till  then. 

Under  this  rule  the  mortgage  lien  is  barred  when  the  debt  is 
barred,  although  at  the  time  the  note  and  mortgage  become  due 
and  afterwards  the  mortgagor  holds  a  claim  against  the  holder  of 
the  note  and  mortgage,  which  he  might  use  as  a  set-off  if  suit  were 
brought  thereon,  unless  the  holder  of  the  note  and  mortgage  should 
recognize  and  allow  such  claim.^  In  these  States  the  statutory 
period  of  limitation  commences  to  run  from  the  time  the  debt 
becomes  due.^ 

But  in  California  it  is  held  that  a  trust  deed  is  not  a  mortgage 
requiring  a  judicial  foreclosure,  but  is  a  conveyance  of  the  legal 
title  ;  that,  although  the  debt  be  barred  by  limitation,  it  is  not 
extinguished  or  paid  ;  and  therefore  the  legal  title  and  power  of  the 
trustee  ai-e  not  affected  b}'^  the  expiration  of  the  period  prescribed 
to  bar  the  debt,  and  a  court  of  equity  will  not  interfere  to  enjoin  a 
sale  under  the  deed.^*^ 

The  statute  of  limitations  of  these  States  is  wholly  unlike  that 
of  England,  and  of  those  States  which  have  adhered  to  the  com- 
mon law  forms  of  action.     The  latter  statutes  apply  in  terms  only 

Blackwell  v.  Barnett,  52  Tex.  326 ;  Perkins  111.  378 ;  Hancock  v.  Harper,  86  111.  445 ; 

V.  Sterne,  23  Tex.  561,  76  Am.  Dec.  72;  Carters.  Tice,  120  111.  277,  11  N.  E.  Rep. 

Ross  V.  Mitchell,  28  Tex.   150;    Daggs  v.  529;  Hyman  r.  Bayne,  83  111.  256;  Gridley 

Ewell,  3   Woods,  344;    Kyger  i?.  Ryley,  2  v.  Barnes,   103  111.  211;    McMillan  v.  Mc- 

Neb.  20;    Peters   v.  Dunnells,  5  Neb.  400 ;  Cormick,   117  El.  79,  7  N.  E.  Rep.   132; 

Hurley  v.  Estes,  6  Neb.  386;  Henry  v.  Con-  Schifferstein  v.  Allison,  123  111.  662,  15  N. 

fidence  Gold  &  Silver  M.  Co.  I  Nev.  619;  E.  Rep.  275;  Harding  v.  Durand,  138  111. 

Hurley  v.  Cox,  9  Neb.  230,  2  N.  W.  Rep.  515,  28  N.  E.  Rep.  948. 

705;  Cheney  v.  Campbell,  28  Neb.  376,  44  ^  port  Scott  v.   Schulenberg,  22    Kans. 

N.  W.  Rep.  451.  648;  Schmucker  v.   Sibert,  18  Kans.  104, 

1  Acts  1887,  p.  196;  Acts  1889,  p.  73.  26  Am.  Rep.  765;  Hubbard  r.  Mo.  Valley 

2  When  the  mortgage  contains  no  cove-  L.  Ins.  Co.  25  Kans.  172. 

nant  to  pay.     Lilly  v.  Dunn,  96  Ind.  220.  ^  Annot.  Code  1892,  §  2733  ;  Huntington 

3  Gower  v.  AVinchester,  33  Iowa,   303  ;    v.  Bobbitt,  46  Miss.  528 ;  Maddux  v.  Jones, 
Burton  v.  Hintrager,  18  Iowa,  438;  Sang-    51  Miss.  531. 

ster  V.  Love,  11  Iowa,  580;  Crow  v.  Vance,  "  Laws  1891,  p.  184.     As  to  mortgages 

4  Iowa,  434;    Green  v.  Turner,  38  Iowa,  made  before  the  statute,  it  takes  effect  after 

112;    Newman   v.   De   Lorimer,    19   Iowa,  the  expiration  of  two  years. 

244  ;  Clinton  County  v.  Cox,  37  Iowa,  570;  »  Hubbard  v.  Mo.  Valley  L.  Ins.  Co.  25 

Mahon  v.  Cooley,  36  Iowa,  479;  Brown  v.  Kans.  172. 

Rockhold,  49  Iowa,  282.  9  Bassett  v.  Monte  Christo  Mining  Co.  15 

*  Pollock  V.  Maison,  41  111.  516;    Hagan  Nev.  293. 

V.  Parsons,  67  111.  170;  Emory  v.  Keighan,  w  Grant  v.  Burr,  54  Cal.  298. 
94  111.  543,  88  111.  482;  Quayle  v.  Guild,  91 

160 


WHEN    THE   RIGHT    TO    FORECLOSE   IS   DEBARRED.         [§  1207. 

to  actions  at  law  ;  and  courts  of  equity  in  general  act  merely  in 
analogy  to  the  statutes,  and  not  in  obedience  to  them.  But  in 
States  where  the  distinction  between  actions  at  law  and  suits  in 
equity  is  done  away  with,  the  statutes  of  limitation  apply  equally 
to  both  classes  of  cases  ;  and  therefore  a  suit  to  foreclose  a  mort- 
gage must  be  brought  within  the  time  limited  for  an  action  upon 
the  note  secured  by  it.^  A  purchaser  of  the  equity  of  redemption 
may  interpose  this  defence  to  the  foreclosure  of  a  mortgage,  whether 
the  mortgagor  does  or  not.^ 

The  mere  fact  of  posting  notices  at  a  trust  sale  by  a  trustee,  be- 
fore the  debt  secured  by  the  trust  deed  is  barred,  but  not  in  time 
to  make  the  sale  before  the  bar  of  limitation  would  be  complete, 
cannot  be  held  equivalent  to  the  institution  of  an  "  action  or  suit," 
which  would  suspend  the  running  of  the  limitation.-^ 

In  equity  a  mortgage  is  always  regarded  merely  as  a  security 
for  the  debt.  The  debt  is  the  principal  thing,  and  the  mortgage 
an  incident  only.  But  the  note  or  bond  which  accompanies  the 
mortgage  may  also  be  regarded  as  an  incident  or  evidence  of 
the  debt,  especially  if  the  mortgage  itself  contains  a  covenant  for 
the  payment  of  it.^  The  doctrine  that  there  can  be  no  remedy 
upon  the  mortgage  after  the  remedy  upon  the  note  is  barred  can- 
not properly  rest  upon  this  foundation.  If  not  based  upon  the 
express  terms  of  the  statute  of  limitations,  it  must  rest  upon  the 
statutory  declaration  made  in  several  States,  that  a  mortgage  is 
not  to  be  deemed  a  conveyance  of  the  land,  but  only  a  contract 
lien  upon  it.^  Yet  in  Illinois  when  the  debt  is  barred  the  remedy 
on  the  mortgage  is  barred  also,  and  the  decisions  are  placed  upon 
the  ground  that  the  debt  is  the  principal  thing  ;  that  an  assign- 
ment of  this  carries  with  it  the  mortgage ;  that  the  release  of  it  re- 
leases the  mortgage  ;  and  that  by  analogy  there  is  no  reason  why  a 
bar  to  a  recovery  on  the  note  should  not  produce  the  same  effect  on 

1  Chick  V.  Willetts,  2  Kans.  384 ;  vesting  any  estate  in  the  premises,  either 
Schmucker  v.  Sibert,  18  Kans.  104,  26  Am.  before  or  after  condition  broken.  Here  it 
Rep.  765.  confers  no  right  to   the  possession  of   the 

2  Schmucker  v.  Sibert,  18  Kans.  104,  26  premises  either  before  or  after  default,  and, 
Am.  Rep.  76.5,  of  course,  furnishes  no  support  to  an  action 

2  Bhickweli  v.  Barnett,  52  Tex.  326.  of  ejectment,  or  to  a  writ  of  entry  for  their 
*  Fratt  V.  Iluggins,  29  Barb.  277.  recovery.  The  language  of  the  statute  is 
^  Lord  V.  Morris,  18  Cal.  482.  Chief  express  that  it  shall  not  be  deemed  a  con- 
Justice  Field  said:  "Here  a  mortgage  is  veyance,  whatever  its  terms,  so  as  to  enable 
regarded  as  between  the  parties,  as  well  as  the  owner  of  the  mortgage  to  recover  pos- 
with  reference  to  the  rigiits  of  the  mort-  session  without  a  foreclosure  and  sale." 
gagor  in  his  dealings  with  third  persons,  as  And  see  Jackson  v.  Lodge,  36  Cal.  28  ; 
a  mere  security,  creating  a  lien  or  charge  Carpentier  v.  Brenham,  40  Cal.  221  ;  Harp 
upon  the  property,  and  not  as  a  conveyance  v.  Calahan,  46  Cal.  222. 

VOL.  IJ.  11  151 


§  1208.]        WHEN   THE   RIGHT   TO   FORECLOSE   IS   DEBARRED. 

the  mortgage.  It  is  conceded,  however,  that  when  the  mortgage 
itself  contains  a  covenant  for  the  payment  of  the  debt,  this  being 
an  instrument  under  seal,  although  a  mortgage  note  not  under  seal 
might  be  barred  under  a  shorter  period  of  limitation  than  that  re- 
quired to  bar  a  sealed  instrument,  the  remedy  upon  the  mortgage 
would  be  baiTed  only  by  the  lapse  of  the  longer  period  required 
to  bar  a  recovery  on  sealed  instruments.^ 

If  the  debt,  secured  by  a  mortgage  of  real  estate,  is  not  evi- 
denced by  any  other  written  instrument,  and  the  mortgage  contains 
no  express  covenant  to  pay  such  indebtedness,  and  a  stipulation 
annexed  thereto  expressly  excludes  previous  liability,  the  right  to 
foreclose  the  mortgage  is  barred  in  ten  years  under  the  special 
statute  relating  to  mortgages,  and  not  under  a  statute  relating  to 
limitations  of  actions  upon  debts.  There  is  in  such  case  no  debt 
which  can  be  considered  as  the  principal  to  which  the  mortgage  is 
incident. 2 

On  the  other  hand,  so  long  as  the  statute  does  not  bar  a  recovery 
on  the  note,  it  does  not  bar  a  foreclosure  of  the  mortgage.^  If 
by  the  non-residence  of  the  mortgagor  time  be  deducted  from  the 
period  of  limitation,  so  that  an  action  on  the  debt  is  not  barred, 
neither  is  an  action  to  foreclose  the  mortgage  barred.* 

1208.  It  is  immaterial  whether  the  adverse  possession  be 
that  of  one  person  for  the  whole  period,  or  that  of  several 
persons  holding  in  succession  each  for  a  part  of  the  period,  pro- 
vided the  possession  be  uninterrupted  and  adverse ;  but  if  a  period 
of  time  intervenes  when  the  possession  is  not  adverse,  the  statute 
only  runs  from  the  commencement  of  the  last  adverse  possession.^ 

Moreover,  as  against  the  mortgagee  under  the  English  statute,*^ 
the  adverse  possession  must  have  commenced  under  the  mortgage, 
so  that  an  occupation  previous  to  the  making  of  the  mortgage 
cannot  be  added  to  an  occupation  afterwards  to  make  up  the  pe- 
riod of  twenty  years ;  therefore  it  may  happen  that  while  the  mort- 
gagor is  barred  from  recovery  the  mortgagee  is  not.'''  The  payment 
of  interest  by  the  mortgagor  may  prevent  the  running  of  the  stat- 

1  Harris  v.  Mills,  28  111.  44,  81  Am.  Dec.  Brown  v.  Rockhold,  49  Iowa,  282,  7  Cent. 
259  ;  Hagan  v.  Parsons,  67  III.  170;  Brown  L.  J.  416;  Emory  v.  Keighau,  94  111.  543. 
j;.  Devine,  61  111.  260;    Pollock  y.  Maison,        ^  Emory   v.   Keighan,    88    111.    482,    11 
41  111.  516.  Chicago  L.  N.  32  ;  Benson  v.  Stewart,  30 

2  Von  Campe  v.  Chicago,  140  111.  361,'29  Miss.  49. 

N.  E.  Rep.  892.  6  7  Wm.  IV.  &  1  Vict.  ch.  28. 

3  Schmucker  v.  Sibert,  18  Kans.  104,  26  ''  Palmer  v.  Eyre,  17  Q.  B.  366  ;  Badde- 
Am.  Rep.  765.  ley  v.  Massey,  17  Q.  B.  373  ;  Ford  v.  Ager, 

4  Clinton  County  v.  Cox,  37  Iowa,  570 ;  2  H.  &  C.  279,  8  L.  T.  N.  S.  546. 

162 


WHEN  THE  RIGHT  TO  FORECLOSE  IS  DEBARRED.   [§§  1209,  1210. 

ute  against  the  mortgagee,  while  the  person  in  possession  under 
the  mortgagor,  holding  for  more  than  twenty  years  without  paying 
rent  or  making  acknowledgment  of  any  kind,  has  acquired  title 
against  him. 

An  adverse  possession,  which  includes  the  period  during  which  a 
sta}^  law  was  in  force,  is  not  effectual  against  a  mortgagee. ^ 

1209.  An  action  to  enforce  an  equitable  lien  for  purchase- 
money  is,  on  the  contrary,  barred  when  the  debt  itself  is  barred.^ 
Such  a  lien  arises  by  operation  of  law,  and  is  not  created  or  evi- 
denced by  deed.  It  must  coexist  with  the  debt  and  cannot  survive 
that. 

1210.  The  statute  runs  in  favor  of  the  mortgagor  from  the 
time  the  mortgagor's  right  of  action  accrues,  that  is,  from  the 
time  the  condition  of  the  mortgage  is  broken.*^  Unless  the  time 
commences  to  run  from  the  time  when  the  right  to  foreclose  ac- 
crues, it  could  have  no  commencement  except  in  rare  instances, 
and  the  right  to  foreclose  might  be  asserted  against  the  continued 
possession  of  the  mortgagor  at  the  most  remote  period.  From  that 
time  the  mortgagor  holds  subject  to  the  right  of  the  mortgagee 
to  foreclose  ;  and  if  the  mortgagee  sleeps  upon  that  right,  if  any 
lapse  of  time  is  to  bar  his  claim  upon  the  presumption  that  it  has 
been  paid,  the  period  must  commence  from  the  accruing  of  his  right 
of  action. 

If  a  suit  for  foreclosure  be  regarded  as  a  proceeding  in  rem, 
the  absence  of  the  mortgagor  from  the  State  does  not  prevent  the 
running  of  the  statute  on  the  mortgagee's  right  to  foreclose.  His 
absence  does  not  interfere  with  the  prosecution  of  his  remedy,  or 
render  it  less  effectual.^  But,  on  the  other  hand,  if  such  a  suit  be 
regarded  as  a  proceeding  in  personam  rather  than  one  in  rem,  a 
provision  of  a  statute  of  limitations,  that,  in  case  the  defendant  be 
absent  from  the  State  when  the  cause  of  action  accrues,  the  action 

1  Lynch  v.  Hancock,  14  S.  C.  66.  due  and  payable.     The  six  years'  limitation 

2  Borst  V.  Corey,  15  N.  Y.  505.  Mr.  has  no  application  to  a  mortgage.  In  fact, 
Justice  Bowen  said  :  "  There  is  a  material  all  instruments  under  seal  are  expressly 
distinction  between  a  mortgage  and  the  excepted  therefrom."  To  the  same  effect 
equitable  lien  for  the  purchase-price  of  land  see  Trotter  v.  Erwin,  27  Miss.  772  ;  Little- 
given  by  law,  and  also  between  an  action  John  v.  Gordon,  32  Miss.  235. 

to  foreclose  a  mortgage  and  one  to  enforce  a  ^  Nevitt  v.  Bacon,  32  Miss.  212,  66  Am. 

lien.     Tlie  action   to  foreclose  a  mortgage  Dec.  609 ;  Benson  v.  Stewart,  30  Miss.  49 ; 

is  brought  upon  an  instrument  under  seal,  Wilkinson    v.   Flowers,   37    Miss.    579,    75 

which   acknowledges  the  existence   of   the  Am.  Dec.  78  ;    Coyle  v.  Wilkins,  57  Ala. 

debt  to  secure  which  the  mortgage  is  given;  107  ;    Smith  v.  Niagara  F.  Ins.  Co.  60  Vt. 

and,  by  rca.son  of  the  seal,  the  debt  is  not  682,  15  Atl.  Rep.  353. 

presumed  to  have  been  paid  until    the  ex-  *  Anderson  v.  Baxter,  4  Oreg.  105. 
piration  of  twenty  years  after  it   becomes 

163 


§  1211.]        WHEN    THE   RIGHT    TO    FORECLOSE   IS   DEBARRED. 

may  be  commenced  within  the  time  limited  after  his  return  to  the 
State,  applies  to  a  foreclosure  suit.^ 

1211.  The  possession  of  the  mortgagor  or  his  grantees  is  pre- 
sumed to  be  subordinate  to  the  mortgage,  until  it  is  shown  by 
some  act  that  such  possession  is  inconsistent  with  the  rights  of  the 
mortgagee.^  To  constitute  an  adverse  possession  in  the  mortgagor  his 
possession  must  be  hostile  in  its  inception,  and  must  continue  hostile, 
actual,  visible,  and  distinct.^  So  long  as  tlie  relation  of  mortgagor 
and  mortgagee  continues,  the  statute  cannot  commence  to  run  in 
favor  of  the  mortgagor  or  his  heirs.  The  recovery  of  a  judgment  on 
scire  facias  to  foreclose  a  mortgage  does  not  extinguish  the  relation  ; 
until  the  time  of  redemption  allowed  by  law  after  a  foreclosure  sale 
has  expired,  so  that  the  purchaser  is  entitled  to  a  deed  of  the  prem- 
ises, the  statute  does  not  begin  to  run.'^  After  a  foreclosure  sale  the 
statute  of  limitations  begins  to  run  against  the  purchaser,  at  least, 
when  the  deed  under  the  sale  is  given,  whether  the  purchaser  be 
the  mortgagee  or  a  third  person.^ 

The  possession  of  the  mortgagor  being  in  the  beginning  consist- 
ent with  the  right  of  the  mortgagee,  it  becomes  important  to  de- 
termine when  it  becomes  adverse,  and  such  that  the  limitation 
begins  to  run  in  the  mortgagor's  favor.  Is  it  adverse  from  the  time 
that  he  ceases  to  pay  interest  upon  the  mortgage  debt  ?  "  It  seems 
to  me,"  says  Lord  Denman,  Chief  Justice,  "  that  it  is  not  so.  The 
possession  of  the  mortgagor  is  consistent  with  the  right  of  the 
mortgagee ;  and,  therefore,  the  possession  is  not  adverse  at  any 
assignable  period,  unless  the  jury,  from  renunciation  by  the  mort- 
gagor or  some  other  circumstances,  are  induced  to  find  the  fact  of 
adverse  possession."^ 

Where  the  owner  of  the  equity  of  redemption  had  been  the  mort- 

1  Whalley   v.   Eldridge,    24   Minn.  358  ;  *  Rockwell  v.  Servant,  63  111.  424 ;  Janii- 

Bardwell  v.  Collins,  44  Minn.  97,  46  N.  W.  son  v.  Ferry,  38  Iowa,  14. 

Rep.  315;    Carson  v.  Cochran  (Miuu.),  53  &  Grether  v.  Clark,  75  Iowa,  383,39  N. 

N.  W.  Rep.  1130  ;  Town  v.  Washburn,  14  W.  Rep.  655,  9  Am.  St.  Rep.  491. 

Minn.  268;    Foster  ;;.  Johnson,  44  Minn.  «  Jones  v.  Williams,   5  Ad.  &   El.  291. 

290,  40  N.  W.  Rep.  350.  Mr.  Justice  Patterson   in  this   case   said  : 

■^  Maxwell   v.    Hartmann,    50  Wis.   660,  "  One  is  much  at  a  loss  as  to  the  proper 

8  N.  W.  Rep.  103.  terms  in  which  to  describe  the  relation  of 

^  §672;    Medley  v.  Elliott,  62  111.  532;  mortgagor   in   possession   and    mortgagee. 

Martin  v.  Jackson,  27  Pa.  St.  504,  67  Am.  In   Partridge   v.   Bere,   5   B.  &  Aid.   604, 

Dec.  489  ;  Parker  i-.  Banks,  79  N.  C.  480 ;  such  mortgagor  is  held  to  be  tenant  to  the 

Birnie  v.  Maine,  29  Ark.  591 ;  Coldcleugh  mortgagee ;  sometimes  he  is  said  to  be  the 

V.  Johnson,  34  Ark.  312  ;  Coyle  v.  Wilkius,  bailiff  of  the  mortgagee;  and  in  a  late  case 

57  Ala.  108;  St.  Louis  v.  Priest,  103  Mo.  Lord  Tenterden  said  that  his  situation  was 

652, 15  S.  W.  Rep.  988  ;  Scruggs  v.  Scruggs,  of  a  peculiar  character.     But  it  is  clear  that 

43  Mo.  142  ;  Bowman  v.  Lee,  48  Mo.  335;  his  possession  is,  at  all  events,  not  adverse  to 

Gray  v.  Givens,  26  Mo.  291.  the  title  of  the  mortgagee." 

164 


WHEN  THE  RIGHT  TO  FORECLOSE  IS  DEBARRED.   [§  1211  flt. 

gagee's  agent  in  selling  the  land,  and  in  taking  a  mortgage  for  a  bal- 
ance of  the  purchase-money,  and  had  afterwards  purchased  the  land, 
but  concealed  the  transaction  from  his  principal,  and  always  held 
himself  out  to  his  principal  as  being  true  to  the  confidential  rela- 
tion as  his  agent,  and  never  claimed  any  interest  in  the  land,  and 
the  principal  never  cancelled  the  agent's  power  of  attorney  or 
learned  of  his  unfaithfulness,  it  was  held  that  the  agent's  possession 
of  the  land  was  not  adverse,  and  that  though  the  notes,  to  secure 
which  the  mortgage  was  given,  had  been  barred  by  the  statute  of 
limitations,  the  right  of  action  on  the  mortgage  was  not  barred. ^ 

Possession  by  one  who  has  entered  upon  the  land,  under  a  con- 
tract with  the  mortgagor  to  pay  off  the  mortgage  debt,  is  not  ad- 
verse to  the  mortgagee.^ 

It  is  not  material  to  make  out  that  the  mortgagor's  possession 
from  that  time  is  actually  adverse  to  the  right  of  the  mortgagee,  if 
it  is  from  that  time  without  recognition  of  it.  It  is  deemed  adverse 
in  law  after  breach  of  the  condition. ^ 

The  period  of  limitation  runs,  of  course,  from  the  time  when  the 
mortgagee's  right  of  action  accrues,  and  not  from  the  date  or  deliv- 
ery of  the  mortgage.*  When  a  mortgage  is  payable  in  instalments 
falling  due  at  different  times,  the  mortgagor's  possession  is  not 
adverse  until  the  maturitj^  of  the  last  instalment.  The  condition 
of  the  mortgage  in  such  case  is  a  continuing  one,  and  the  mortgagee 
may  await  the  maturity  of  the  last  note  before  an  entry  and  sale, 
or  before  treating  the  non-payment  of  the  earlier  instalments  as  a 
forfeiture  of  the  mortgage.^ 

When  a  mortgage  is  in  the  form  of  an  absolute  conveyance  and 
the  grantor  continues  in  possession,  such  possession  is  not  adverse, 
so  as  to  start  the  running  of  the  statute  of  limitations,  until  the 
grantor  disclaims  the  trust  relation  of  his  possession,  and  gives  no- 
tice of  that  fact  to  the  grantee.^ 

1211  a.  To  constitute  a  disseisin  of  the  mortgagee  by  the 
mortgagor,  the  claim  of  the  latter  must  be  adverse  to  the  mortga- 
gee's title,  and  this  claim  must  in  some  way  be  made  known  to  the 
mortgagee.  It  has  even  been  said  that  "a  mortgagor,  especially  after 
entry,  cannot  disseise  his  mortgagee,  or  defeat  his  right  of  posses- 
sion.    All  such  acts  are  held  to  be  done  in  subordination  to  the  title 

^  Combs  V.  Goldsworthy,  109  Mo.  151, 18  *  Prouty  v.  Eaton,  41  Barb.  409  ;  Delano 

S.  W.  Rep.  1130.  V.  Smith,  142  Mass.  490,8  N.  E.  Rep.  644. 

2  Wilkerson  v.  Allen,  67  Mo.  .502.  ^  Parker  v.  Banks,  79  N.  C.  480. 

3  Wilkinson  v.  Flowers,  37  Miss.  579,  75  ^  Flynn  v.  Lee,  31  W.  Va.  487,  7  S.  E. 
Am.  Dec.  78.         '  Rep.  430. 

165 


§§  1212-1214.]       WHEN   THE   RIGHT    TO   FORECLOSE   IS   DEBARRED. 

of  his  mortgagee."  ^  It  is  at  any  rate  well  settled  that  the  mortga- 
gee must  be  informed  of  the  claim  adverse  to  the  mortgage  before  the 
disseisin  begins,^  It  has  been  held,  too,  that  "  exclusive  possession 
by  a  mortgagor,  and  those  claiming  under  him,  with  a  claim  of  ex- 
clusive ownership,  does  not  of  itself  amount  to  a  disseisin  of  the 
mortgagee,  so  as  to  invalidate  a  transfer  of  the  mortgage  title,"  or 
the  valid  execution  of  a  power  of  sale  contained  in  a  mortgage.^ 
Either  the  occupation  of  the  mortgagor  must  be  of  such  a  character 
as  of  itself  to  give  notice  to  the  mortgagee  that  he  repudiates  his 
title,  and  claims  title  advei'sel}^  to  him,  or  the  mortgagee  must  be 
shown  to  have  had  actual  notice  or  knowledge  of  such  a  claim. 

1212.  If  the  mortgagor  has  not  been  in  possession  of  the 
mortgaged  land,  the  debt  being  unpaid,  the  right  to  foreclose  is  not 
barred  by  the  lapse  of  the  statutory  period  of  limitation.  This 
condition  of  things  frequently  happens  when  the  mortgaged  lands 
are  wild  and  unimproved.  The  lapse  of  thirty  years  has  been  held 
to  be  no  bar  to  a  foreclosure  in  such  a  case.*  Even  the  lapse  of 
thirty-five  years,  during  the  most  of  which  period  the  mortgagor 
was  out  of  the  State  and  had  apparently  abandoned  his  equity  of 
redemption,  and  the  mortgagee  had  asserted  his  claim  by  the  sale 
of  a  part  of  the  premises,  and  by  paying  taxes  every  year  on  the 
remainder,  was  held  not  to  bar  him.^ 

1213.  If  the  mortgage  be  one  of  indemnity  to  a  surety,  his 
right  of  action  does  not  accrue  until  he  has  paid  the  debt  which 
the  mortgage  was  given  to  secure  him  against,  and  therefore  the 
time  of  limitation  for  his  bringing  an  action  to  foreclose  the  mort- 
gage commences  to  run  only  from  tiiat  time.*^ 

1214.  The  same  rule  applies  in  case  of  a  debt  barred  by  a 
special  statute  of  limitations.  Thus,  the  rule  applies  to  a  par- 
ticular statute  limiting  the  time  within  which  claims  against  the 
estate  of  a  deceased  person  must  be  presented  or  sued.  The  debt 
is  not  paid  or  satisfied  by  failure  to  present  or  sue  it  within  the  time 
limited ;  and  the  remedy  on  the  mortgage  may  still  be  pursued/ 

1  §  703;  Lennon  v.  Porter,  5  Gray,  27  Pa.  St.  504;  Zeller  v.  Eckert,  4  How. 
318.  289. 

2  Holmes  v.  Turner's  Falls  Lumber  Co.  ^  Johnson  v.  Bean,  119  Mass.  271  ;  Lin- 
150  Mass.  535,  23  N.  E.  Eep.  305  ;  Murphy  coin  v.  Emerson,  108  Mass.  87;  Hunt  v. 
V.  Welch,  128  Mass.  489  ;  Sheridan  v.  Welch,  Hunt,  14  Pick.  374. 

8   Allen,   166;  Tripe  v.  Marcy,  39  N.  H.  *  Chouteau  r.  Burlando,  20  Mo.  482. 

439;  Medley  v.  Elliott,  62  111.  532;  Max-  ^  Locke  v.  Caldwell,  91  111.  417. 

well  V.  Hartmann,  50  Wis.  660,  8  N.  W.  '^  M'Lean  v.  Ragsdale,  31  Mass.  701. 

Rep.  103 ;  Parker  v.  Banks,  79  N.  C.  480;  '^  Sichel  v.  Carrillo,  42  Cal.  493.     In  this 

Coldcleugh  v.  Johnson,  34  Ark.  312;  Coyle  case  the  mortgage  was  given  to  secure  the 

V.  Wilkins,  57  Ala.  lOS  ;  Martin  v.  Jackson,  note  of  another  person,  so  that  there  was  no 

166 


WHEN   THE   RIGHT    TO   FORECLOSE   IS   DEBARRED.       [§§  1214  a,  1214  5. 

though  the  mortgagee's  right  to  have  decedent's  other  estate  ap- 
plied, on  any  deficiency  that  may  remain  after  exhausting  the  land, 
is  barred  by  failure  to  present  the  claim  within  the  time  limited.i 

1214  a.  A  bill  in  equity  to  have  the  mortgage  cancelled  and 
to  remove  the  cloud  from  the  title  may  be  maintained  by  the  mort- 
gagor or  by  his  vendee  or  mortgagee  after  the  mortgage  has  become 
barred  by  the  statute.  The  title  is  then  clouded  with  an  invalid 
lien,  and  any  party  interested  in  the  title  is  entitled  to  have  the 
cloud  removed.2 

1214  h.  The  privilege  of  the  plea  of  the  statute  of  limitations 
may  be  set  up  not  only  by  the  mortgagor  but  by  a  subsequent  pur- 
chaser of  the  property.  In  the  latter  case  the  plea  must  show  that 
the  action  is  barred  as  between  the  parties  to  the  debt,  because  it  is 
that  debt  the  purchaser  has  to  pay.^ 

Generally,  however,  the  privilege  is  regarded  as  a  personal  one, 
which  the  mortgagor  may  avail  himself  of  or  not,  as  he  may  choose, 
and  a  subsequent  purchaser  cannot  have  a  foreclosure  sale  set  aside 
because  the  mortgagor  did  not  plead  the  bar  of  the  statute.*  A 
third  person  cannot  interpose  the  defence.^  The  statute  can  only 
be  set  up  by  the  mortgagor,  or  by  some  one  claiming'under  him. 
Certainly,  when  the  statute  is  not  available  for  him,  it  is  not  avail- 
able for  any  other  person.  Thus  it  cannot  be  interposed,  by  the 
holder  of  a  tax-title,  to  a  note  and  mortgage  not  barred  at  the  com- 
mencement of  the  action  against  the  original  mortgagor.*^ 

personalliability  of  the  mortgagor.  When  Allen  v.  Moer,  16  Iowa,  307;  Fisher  v. 
the  maker  of  the  note  and  mortgage  are  the  Mossman,  1 1  Ohio  St.  42  ;  Willard  v.  Van 
same  person,  the  court  say  it  may  be  that  Leeuwen,  56  Mich.  15,  22  N.  W.  Rep.  185  ; 
it  would  be  necessary  to  present  the  claim  to  McClure  v.  Owens,  32  Ark.  443  ;  Richard- 
prevent  a  bar,  and  keep  the  remedy  alive  as  son  v.  Hickman,  32  Ark.  406. 
to  the  debt,  in  order  to  uphold  the  remedy  on  i  Scammou  v.  Ward,  1  Wash.  St.  179,  23 
the  mortgage.     This,  however,  would  be  on  Pac.  Rep.  339. 

account  of  the  exceptional  character  of  the  2  po^  v.  Blossom,  17  Blatchf.  352.     See 

statutes  of  limitation  in  that  State,  and  of  Delano  v.   Smith,   142  Mass.  490,  8  N.  E. 

the   exceptional  views   taken  there  of  the  Rep.  644. 

force  and  effect  of  a  mortgage.     The  rule  3  Ewell  v.  Daggs,  108  U.  S.  143,  2  Sup. 

stated  in  the  text  is  of  general  application,  Ct.  Rep.  408. 

and  without    any   such    qualification    else-  *  Sanger  v.  Nightingale,  122  U.  S.  176,  7 

where.     In   Texas,   under  special    require-  Sup.  Ct.  Rep.  1109. 

ment  of  statute,  the  debt  must  be  presented  5  Baldwin  v.  Boyd,  18  Neb.  444,  25  N. 

against  the  estate  of  the  deceased  before  W.  Rep.  580;  Waterson  v.  Kirkwood,   17 

any   action   can    be  had  on  the  mortgage.  Kans.  9. 

Graham    v.  Viuing,   1  Tex.    639;  Duty  v.  6  Ordway  v.  Cowles,  45  Kans.447,  25  Pac. 

Graham,  12  Tex.  427,  62  Am.   Dec.  534;  Rep.  862. 

167 


CHAPTER   XXVII. 


REMEDIES   FOR   ENFORCING   A   MORTGAGE. 


I.  Are  concurrent,  1215-1219. 
II.  Personal   remedy    before    foreclosure, 
1220-1226. 
III.  Personal     remedy    after    foreclosure, 
1227,  1228. 


IV.  Sale  of  mortgaged  premises  on  exe- 
cution   for    mortgage     debt,    1229, 
1230. 
V.  Remedy   as    affected   by   bauliruptcy, 
1231-1236. 


I.  Are  concurrent. 

1215.  The  mortgagee  may  pursue  all  his  remedies  concur- 
rently or  successively.!  He  may  at  the  same  time  sue  the  mort- 
gagor in  an  action  at  law  upon  the  note,  or  other  personal  debt ;  may 
enter  to  foreclose,  and  file  a  certificate  thereof  ;  may  maintain  a 
writ  of  entry  or  ejectment  to  recover  possession  of  the  land,  and 
a  bill  in  equity  to  foreclose  the  mortgage.  Recovery  of  judgment 
upon  the  note  does  not,  without  payment,  take  it  out  of  the  mort- 
gage, or  bar  proceedings  to  foreclose.  The  cause  of  action  on  the 
debt  is  personal  against  the  person  and  propert}'^  of  the  debtor ;  and 
the  proceedings  to  foreclose  are  to  enforce  the  lien  upon  the  debtor's 
real  estate  which  he  has  charged  with  the  payment  of  the  debt.^ 
A  mortgagee  who  has  been  fraudulently  induced  to  lend  money 
on  land  in  excess  of  its  value  may  retain  and  enforce  his  security 
against  the  land,  and  at  the  same  time  maintain  an  action  against 


1  Garfortli  v.  Bradley,  2  Ves.  Sen.  678; 
Hughes  V.  Edwards,  9  Wheat.  489  ;  Gilman 
V.  111.  &  Miss.  Tel.  Co.  91  U.  S.  603  ;  Torrey 
V.  Cook,  116  Mass.  163  ;  Ely  v.  Ely,  6  Gray, 
439  ;  Draper  v.  Mann,  117  Mass.  439  ;  Trus- 
tees V.  Connolly,  157  Mass.  272  ;  Montague 
V.  Dawes,  12  Allen,  397;  Burtis  v.  Brad- 
ford, 122  Mass.  129;  Ileburn  v.  Warner, 
112  Mass.  271  ;  Brown  v.  Stewart,  1  Md. 
Ch.  87;  Wilhelm  v.  Lee,  2  Md.  Ch.  322; 
Pratt  y.  Huggins,  29  Barb.  277  ;  Jackson  v. 
Hull,  10  Johns.  N.  Y.  481 ;  Jones  v.  Conde, 
6  Johns.  Ch.  77  ;  Very  v.  Watkins,  18  Ark. 
546 ;  Smith  v.  Shuler,  12  S.  &  R.  240  ;  Coit 
V.  Fitch,  Kirby  (Conn.),  254,  1  Am.  Dec. 
20  ;  Wilkinson  v.  Flowers,  37  Miss.  579,  75 
Am.  Dec.  79 ;  Wiswcll  v.  Baxter,  20  Wis. 

168 


680;  Whipple  v.  Barnes,  21  Wis.  327; 
Knox  V.  Galligan,  21  Wis.  470;  Banta  v. 
Wood,  32  Iowa,  469 ;  Brown  v.  Cascaden, 
43  Iowa,  103;  Kuetzer  v.  Bradstreet,  1 
Greene,  382;  Cross  v.  Burns,  17  Ind.  441 ; 
Micou  V.  Ashurst,  55  Ala.  607 ;  Scott  v. 
Ware,  64  Ala.  174;  Stephens  v.  Greene 
County  Iron  Co.  11  Heisk.  71;  Delespine 
V.  Campbell,  52  Tex.  4.  In  the  present 
state  of  the  law,  when  there  is  no  prohibi- 
tion by  statute,  it  is  competent  for  the  mort- 
gagee to  pursue  three  remedies  at  the  same 
time.  Mr.  Justice  Swayne  in  Gilman  i;. 
111.  &  Miss.  Tel.  Co.  91  U.  S.  603;  Morri- 
son V.  Buckner,  Hemp.  442. 

2  Conn.  Mut.  L.  Ins.  Co.  v.  Jones,  1  Mc- 
Crary,  388. 


REMEDIES   FOR   ENFORCING   MORTGAGE   ARE   CONCURRENT.       [§  1215. 

the   borrower  to    recover    damages  for  the    fraudulent    representa- 
tions.i 

The  mortgage  and  the  evidence  of  debt  are  usually  separate 
instruments  and  afford  independent  remedies.  The  mortgnge  may- 
be wholly  discharged  or  released  without  affecting  the  personal  lia- 
bility of  the  mortgagor  ;  and  on  the  other  hand,  the  personal  liabil- 
ity may  be  terminated  by  the  statute  of  limitations,  or  by  a  dis- 
charge in  bankruptcy  or  insolvency,  without  extinguishing  the 
mortgage.2  Such  is  also  the  case  if  the  mortgage  note  be  made 
invalid  by  alteration.^  So  long  ago  as  the  case  of  Burnell  v.  Mar- 
tin^  Lord  Mansfield  declared  that  "  it  had  been  settled  over  and  over 
again  that  a  person  in  such  case  is  at  liberty  to  pursue  all  his  rem- 
edies at  once."  He  may  pursue  his  legal  and  equitable  remedies  at 
the  same  time ;  he  may  foreclose,  take  possession  of  the  estate,  or 
bring  ejectment  for  it,  and  sue  the  mortgagor  on  his  covenant  or 
other  obligation  for  the  debt.^  When  not  restrained  from  entering 
he  may  maintain  ejectment  without  previous  demand  of  payment, 
or  entry,  or  notice  to  quit.*^  After  a  mortgage  is  due,  the  mortgagee 
may  at  any  time,  without  notice  or  demand  of  payment,  take  pro- 
ceedings to  collect  the  debt  or  to  realize  his  security." 

But  in  those  States  in  which  the  practice  is  established,  that  in  a 
foreclosure  suit  the  mortgagee  is  entitled  to  a  personal  judgment 
for  a  deficiency  remaining  after  a  sale  of  the  property,  it  would 
seem  that  an  action  at  law  to  recover  the  debt  should  not  be  allowed 
concurrently  with  an  equitable  suit  for  foreclosure  by  sale.^ 

When  a  mortgage  is  given  by  a  corporation  to  secure  a  large 
loan  it  is  usual  to  divide  the  mortgage  debt  into  numerous  bonds 
or  notes,  which  are  payable  to  bearer  and  are  transferred  by  de- 
livery, and  are  widely  distributed,  while  the  mortgaged  property 
is  held  by  trustees  for  the  protection  of  all  the  numerous  holders. 
In  such  case,  while  the  individual  bondholders  may  obtain  judg- 
ments for  their  several  bonds,  they  cannot  levy  execution  upon  the 
mortgaged  property  and  acquire  a  preference  over  other  bondhold- 

1  Union  Cent.  Life  Ins.  Co.  v.  Scheidler    v.  Mann,  19  Pick.  535;  Buchanan  v.  Beik- 
(Ind.),  29  N.  E.  Rep.  1071.     Per  Miller,  J.:    shire  L.  Ins.  Co.  96  Ind.  510,  519. 

"  We  know  of  no  rule  of  law  that  would  3  Gillette  v.  Smith,  18  Hun,  10. 

prevent  the  application,  to  this  transaction,  *  2  Doug.  417. 

of  the  ordinary  rule  that  a  defrauded  party  ^  Cockell  v.  Bacon,  16  Beav.  158. 

may  affirm  the  contract  by  retaining  that  ^  New  Haven  Sav.  Bank  v.  McPartlan, 

which  he   has  received,  and  suing  for  the  40  Conn.  90. 

damages  he  has  sustained  by  reason  of  the  "  Letts  v.  Hutchins,  L.   R.   13    Eq.   176; 

fraud."  Harris  v.  Mulock,  9  How.  Pr.  402. 

2  Toplis  V.  Baker,  2  Cox,  123;  Thayer  8  Anderson  v.  Pilgram,  30  S.  C.  499,  9 

S.  E.  Rep.  587. 

169 


§§  1216-1218.]      REMEDIES   FOR   ENFORCING   A   MORTGAGE. 

ers  secured  by  the  same  mortgage.^  The  mortgage  security  must 
usuall}'  be  enforced  by  the  trustees  of  the  mortgage  title,  tliough 
in  certain  contingencies,  as  when  the  trustees  neglect  or  refuse  to 
perform  the  trust,  individual  bondholders  may  institute  proceedings 
to  foreclose  the  mortgage.  But  they  must  do  this  in  behalf  of  all 
the  bondholders. 

1216.  This  rule  is  an  exception  to  the  general  principle  that 
a  debtor  shall  not  be  harassed  by  a  multiplicity  of  suits  for  the 
same  debt  at  the  same  time.  Lord  Redesdale^  states  the  general 
rule  to  be,  that  where  a  party  is  suing  in  equity  he  shall  not  be 
allowed  to  sue  at  law  for  the  same  debt.  "  But  the  case  of  a  mort- 
gagee is  an  exception  to  this  rule  ;  he  has  a  right  to  proceed  on 
his  mortgage  in  equity  and  on  his  bond  at  law  at  the  same  time." 
There  may  be  some  special  equity  in  favor  of  the  mortgagor  which 
will  make  an  exception  to  this  rule  ;^  and  in  some  States  this  right 
of  concurrent  action  has  been  resti'icted  by  statute.^ 

1217.  A  mortgagee  may  maintain  a  creditor's  bill  in  equity 
to  reach  and  apply,  in  payment  of  his  debt,  property  of  the  debtor 
which  cannot  be  come  at  to  be  attached  or  taken  on  execution. 
This  remedy  is  in  the  nature  of  an  attachment  by  an  equitable 
trustee  process ;  and  there  is  no  reason  why  it  should  not  be  pur- 
sued, just  as  the  mortgagee  might  make  direct  attachment  of  any 
property  other  than  the  mortgaged  estate.^ 

1218.  The  right  to  foreclose  is  not  waived  or  impaired  by 
the  recovery  of  a  judgment  at  law  upon  the  mortgage  debt.^ 
The  causes  of  action  are  not  legally  the  same  ;  one  is  a  personal, 
the  other  a  real  action.  Obtaining  a  judgment  on  the  note  does 
not  take  it  out  of  the  mortgage  ; ''  and  while  it  remains  unsatis- 
fied the  conditional  judgment  in  the  suit  to  foreclose  must  be  en- 
tered the  same  as  if  the  note  had  not  been  the  subject  of  a  suit. 
Nor  does  a  provision  in  the  mortgage,  that  in  case  of  a  breach  of 
the  condition  the  mortgagee  may  enter  and  receive  the  rents  and 
profits  for  his  indemnity,  prevent  a  foreclosure  and  sale  as  in  other 
cases. ^ 

The  fact  that  the  mortgagee  has    proved  his  claim  against  the 

1  Jones  on  Corp.  Bonds  and  Mortgages,  ^  Duck  u.  Wilson,  19  Ind.  190;  O'Leary 
§393.  V.  Snediker,  16  Ind.  404;    Walil   v.  Phil- 

2  In  Schoole  v.  Sail,  1  Sch.  &  Lef.  176.  lips,  12  Iowa,  81 ;    Thornton  v.  T'lgg,   24 

3  Booth  t'.  Booth,  2  Atk.  343;  Newbold  Mo.  249;  Karnes  v.  Lloyd,  52  111.  113; 
V.  Newbold,  1  Del.  Ch.3I0.  Vansant  v.  Allmon,  23  111.  30,  33;  Banta 

*  See  §  1223.  v.  Wood,  32  Iowa,  409. 

5  Tucker  v.  McDonald,  105  Mass.  423 ;        ^  See  §  936. 
Palmer  v.  Foote,  7  Paige,  437.  s  Harkins  v.  Forsyth,  1 1  Leigh,  294. 

170 


PERSONAL  REMEDY  BEFORE  FORECLOSURE.   [§§  1219,  1220. 

estate  of  his  deceased  mortgagor  and  obtained  an  order  for  its  pay- 
ment does  not  constitute  a  bar  to  a  proceeding  to  foreclose  the  mort- 
gage.^  On  the  other  hand,  the  mortgage  creditor  is  not  barred,  in 
his  action  to  foreclose  his  mortgage,  by  reason  that  he  has  not 
proved  his  claim  against  the  estate  of  a  deceased  debtor  and  there 
has  been  a  final  settlement  of  that  estate.^ 

On  the  other  hand,  it  is  sometimes  provided  that  the  mortgage 
shall  not  be  foreclosed  until  the  personal  remedy  is  first  had.  A 
stipulation  in  such  a  mortgage,  that  the  property  of  the  makers 
of  the  note  should  be  exhausted  before  foreclosure,  is  complied 
with  when  a  judgment  has  been  obtained  on  the  note  and  the  exe- 
cution has  been  returned  unsatisfied  for  want  of  property.  The 
creditor  is  not  bound  to  try  to  collect  the  judgment  out  of  the  equi- 
ties of  the  judgment  debtors  in  the  mortgaged  premises,  or  out  of 
other  property,  when  these  are  wholly  insufficient.'^ 

1219.  Subsequent  payment  will  discharge  both  the  judgment 
against  the  person  and  that  against  the  property.*  Satisfaction 
of  the  debt  in  whatever  way  it  be  made,  whether  it  be  upon  a 
judgment  at  law,  or  upon  a  decree  in  equity  made  in  respect  of 
the  same  mortgage,  satisfies  and  discharges  all  the  proceedings 
taken  to  enforce  the  debt  either  against  the  person  or  the  prop- 
erty.^ 

Although  as  a  general  rule  a  mortgagor  upon  payment  of  the 
mortgage  is  entitled  to  have  the  property  restored  or  released  to 
him,  yet  this  right  cannot  be  claimed  after  a  sale  under  a  power 
when  suit  is  brought  upon  the  mortgage  debt  for  a  balance  remain- 
ing unsatisfied  by  the  sale.^ 

II.  Personal  Remedy  before  Foreclosure. 

1220.  The  holder  of  the  note  and  mortgage  is  not  required 
first  to  foreclose  the  mortgage,  but  may  bring  his  action  on  the 
note  alone.  The  fact  that  the  mortgagor  has  sold  the  mortgaged 
premises  to  a  third  person  subject  to  the  mortgage  debt  does  not 
change  the  right  of  the  holder  to  pursue  the  personal  remedy. 
The  debt  is  the  primary  obligation  between  the  parties,  and  the 
note    is    the  primary  evidence    of    that    debt.''     The    giving    of    a 

1  Simms  v.  Richardson,  32  Ark.  297  ;  «  Rudge  v.  Richeus,  L.  R.  8  C.  P.  358. 
Jones  V.  Null,  9  Neb.  57,  1  N.  W.  Rep.  A  plea  to  this  effect  was  struck  out  as  bad 
867.  and  dishonest. 

2  McCallam  v.  Pleasants,  67  Ind.  542;  ''  Lichty  v.  McMartin,  11  Kans.  565; 
Bell  y.  Ilobaugh,  65  Ind.  598.                '  Vansant  ^^  Allmon,  23  111.  30 ;    Conn.  Mnt. 

3  Riblet  V.  Davis,  14  Ohio  St.  114.  L.  Ins.  Co.  v.  Jones,  1  McCrary,  388; 
<  Ely  V.  Ely,  6  Gray,  439.  See  §  904.  Frank  v.  Pickle,  2  Wash.  T.  55,  3  Pac.  Rep. 
''  Fairrnan  v.  Farmer,  4  Ind.  436.  584. 

171 


§§  1221,  1222.]   REMEDIES  FOR  ENFORCING  A  MORTGAGE. 

mortgage  or  other  security  for  a  subsisting  debt  does  not  extin- 
guish or  merge  the  personal  liability.  But  of  course  it  is  compe- 
tent for  the  parties  to  agree  that  the  mortgagee  shall  look  only  to 
the  security  for  his  reimbursement,  and  that  the  debtor  shall  be 
absolved  from  all  personal  obligation.^  Where  a  mortgage  is  made 
to  secure  a  note,  but  contains  a  stipulation  that  "general  execution 
shall  not  issue  herein,"  the  remedy  is  limited  to  the  property 
alone.^ 

Even  a  surety  of  a  note  of  his  principal  secured  by  a  mortgage 
of  land  of  the  principal  has  no  right  to  demand  that  the  holder 
of  the  note  shall  first  exhaust  the  security  before  maintaining  an 
action  on  the  note  against  the  surety .^ 

That  the  equity  of  redemption  has  been  sold  on  execution  for 
other  indebtedness  does  not  deprive  the  mortgagee  of  his  right  to 
sue  the  mortgagor  on  the  mortgage  note.  The  purchaser  at  such 
execution  sale  does  not  become  liable  to  the  mortgagor  for  the  mort- 
gage debt,  and  the  mortgagor  is  not  by  such  purchase  released  from 
it  either  at  law  or  in  equity.^ 

The  general  rule  is  also  in  some  States  changed  by  statute.  Thus, 
in  California,  Minnesota,  Nebraska,  and  Nevada,  an  action  cannot 
be  maintained  on  a  promissory  note  secured  by  a  mortgage,  until 
the  mortgage  security  is  exhausted.^  If,  in  consequence  of  the  ille- 
gality of  the  sale,  the  property  brings  less  than  its  value,  this  is  a 
defence  to  an  action  for  the  balance  due  on  the  note.*^ 

1221.  The  holder  of  the  mortgage  need  not  wait  to  ascer- 
tain the  amount  of  the  deficiency  by  a  sale  under  the  power, 
or  even  that  there  will  be  a  deficiency,  before  proceeding  to  en- 
force the  personal  liability  of  the  mortgagor  on  the  note  or  other 
debt.  He  may  in  the  first  place  sue  on  the  note  or  any  instal- 
ment of  it,  if  due,  and  attach  other  property  of  the  mortgagor,  and 
afterwards  proceed  to  sell  under  the  power  contained  in  the  mort- 
gage, if  the  debt  be  not  satisfied.'  Of  course  this  right  must  yield 
to  a  special  agreement  of  the  parties  that  the  personal  liability 
shall  not  be  enforced  until  the  remedy  upon  the  property  is  first 
exhausted. 

1222.  Neither  is  the  pendency  of  a  suit  to  foreclose  the  mort- 

1  Ball  V.  Wyeth,  99  Mass.  338.  653  ;    Johnson   v.   Lewis,    13    Minn.    364  ; 

2  Kennion  iJ.  Kelsey,  10  Iowa,  443.  Weil  v.  Howard,  4  Nev.  384;    Hyman  i'. 
»  Allen  V.  Woodard,   125  Mass.  400,  28    Kelly,  1  Nev.  179.     And  see  §  1223. 

Am.  Kep.  250.  «  Lowell  v.  North,  4  Minn.  32. 

4  Rogers  v.  Meyers,  68  III.  92.  ^  Conn.    Mut.    L.   Ins.   Co.    v.   Jones,    1 

6  Bartlett  v.  Cottle,  63  Cal.  366  ;  Clapp  McCrary,  388. 
V.  Maxwell,   13  Neb.  542,  14  N.  W.  Rep. 

172 


PEKSONAL  REMEDY  BEFORE  FORECLOSURE.      [§  1223. 

gage  any  bar  to  an  action  at  law  to  recover  the  debt  secured  by  it.^ 
If  a  bill  of  foreclosure  be  dismissed  on  the  merits,  this  is  no  bar  to 
a  suit  on  the  note,  for  the  debt  may  be  due  although  the  land  is  not 
bound. 2  Neither  is  a  judgment  against  the  validity  of  the  mort- 
gage necessarily  a  bar  to  a  suit  upon  the  note.^  The  mortgage  debt 
may  be  valid  although  the  mortgage  itself  be  illegal  and  void.* 
The  suit  at  law  may  be  before,  at  the  time  of,  or  after,  the  suit  in 
equity.^ 

Upon  the  death  of  the  mortgagor,  the  holder  of  the  mortgage 
may  foreclose  it  without  proving  the  debt  against  the  mortgagor's 
estate.*^  If  he  waives  all  recourse  to  the  personal  obligation  of  the 
mortgagor,  he  is  not  barred  by  failure  to  commence  suit  within  the 
time  for  the  presentation  of  claims  against  the  deceased  mortga- 
gor's estate.^ 

Though  the  mortgagee  files  a  claim  of  several  items  against  the 
mortgagor's  estate,  and  one  of  the  items  is  a  mortgage  note,  and 
the  claim  is  allowed  to  an  amount  not  exceeding  the  items  other 
than  the  note,  parol  evidence  is  admissible  to  show  that  the  note 
was  withdrawn  before  the  adjudication,  and  was  not  passed  upon 
by  the  probate  court. ^ 

1223.  By  statute  in  some  States  no  proceedings  at  law  can 
be  had  for  the  recovery  of  the  debt  after  the  filing  of  a  bill  for 
ft)reclosure  unless  authorized  by  the  court ;  and  if  proceedings  at 
law  are  already  pending  when  the  bill  is  filed,  although  they  need 
not  be  actually  discontinued  they  must  be  suspended,  unless  the 
authority  of  the  court  be  obtained  to  prosecute  the  suit.^  This 
provision  limits  the  prosecution  of  a  suit  at  law  not  only  against 
the  mortgagor,  but  against  one  who  has  assumed  the  mortgage  debt.^*' 

^  Copperthwait  v.  Dummer,  18  N.  J.  L.  ^  It  is  provided  by  statute  that  the  rnort- 

258.  gi'gee  shall  not  at  the  same  time  pursue  his 

2  Longworth  v.  Flagg,  10  Ohio,  300.  remedy  against  the  property,  and  by  a  sep- 

3  Lander  v.  Arno,  65  Me.  26.  arate  action  against  the  person.      Indiana : 
*  Shaver  v.  Bear  River  &  Auburn  Water  §  1334.    Iowa:  §  1335.    Michigan:  §  1342. 

Mining  Co.  10  Cal.  396.  Nebraska:    §1347.      New  York:    §1351. 

5  Downing  V.  Palmateer,  1  Mon.  64,  68.      North  Dakota:  §  1352  a.     South  Dakota: 

6  Dreyfuss  v.  Giles,  79  Cal.  409,  21  Pac.     §  1352  a.     Washington  :  §  1363. 

Rep.  840;    Andrews  v.  Morse  (Kans.),  32        The  proper  way  to  take  advantage  of  the 

Pac.  Rep.  640  ;  Ilodges  v.  Taylor  (Ark.),  13  pendency  of  a  foreclosure  suit  is  to  move 

S.  W.  Rep.  129.  for  a  stay  of  the  legal  proceedings.     Good- 

^  German    Sav.    Soc.   v.  Fisher,  92  Cal.  rich  v.  White,  39  Mich.  489. 
502,  28  Pac.  Rep.  591 ;  Anglo-Nev.  Corp.  v.        i°  See    §    1721  ;     Pattison    v.   Powers,  4 

Nadeau,  90   Cal.   393,  27    Pac.    Rep.  302,  Paige,  549;   Scofield  v.  Doscher,  72  N.  Y. 

followed;  Reedy.  Miller,  1  Wash.  St.  426,  491.       See,    in     connection,    Comstock    v. 

25  Pac.    Rep.  334;    Scammon   v.  Ward,  1  Drohan,  71  N.  Y.  9;  Campbells.  Smith,  71 

Wash.  St.  179,  23  Pac.  Rep.  439.  N.  Y.  26,  27  Am.  Dec.  5;   and  comments 

8  Palmer  v.  Sanger  (111.),  32  N.  E.  Rep.  in  19  Alb.  L.  J.  383. 
390,  28  N.  E.  Rep.  930.  173 


§  1223.]  REMEDIES  FOR   ENFORCING  A   MORTGAGE. 

Under  the  statutes  of  these  States,  an  equitable  suit  for  foreclosure 
affords  complete  remedy  against  all  persons  liable  for  the  debt,  and 
at  the  same  time  for  the  recovery  of  a  judgment  for  any  deficiency 
there  may  be  after  the  sale,  and  therefore  there  is  no  occasion  for 
a  suit  at  law ;  and  to  prevent  a  multiplicity  of  suits,  the  court  in 
which  the  foreclosure  suit  is  pending  is  given  complete  control  over 
all  the  remedies  for  the  collection  of  the  debt,  even  after  all  the 
relief  asked  for  in  that  suit  is  exhausted.  An  application  to  prose- 
cute a  suit  at  law  is  addressed  to  the  sound  discretion  of  the  court. ^ 
Leave  to  prosecute  should  not  be  granted  ex  parte  when  the  defend- 
ant is  within  reach.^  Such  leave  may  be  granted  after  the  action 
has  been  commenced. ^  If  persons  against  whom  a  judgment  for 
deficiency  might  have  been  had  in  the  foreclosure  suit  have  not 
been  made  parties  to  it,  a  subsequent  action  at  law  might  properly 
be  refused.*  If  no  judgment  for  a  deficiency  is  asked  for,  a  satis- 
factory reason  for  a  separate  suit  must  be  shown.^  The  fact  that  a 
person  liable  for  the  debt  was  not  within  the  jurisdiction  of  the  court 
when  the  foreclosure  suit  was  commenced  would  doubtless  be  suffi- 
cient reason  for  allowing  a  separate  suit  against  him  for  a  deficiency.^ 
Upon  application  for  leave  to  sue  for  a  deficiency  after  judgment  of 
foreclosure,  the  court  in  the  exercise  of  its  discretion  will  consider 
the  equitable  rights  of  the  defendant  which  he  cannot  plead  in  an 
action  at  law.'^ 

When  a  suit  at  law  is  pending  at  the  time  of  commencing  the 
foreclosure  suit,  and  there  are  advantages  in  testing  in  that  ac- 
tion the  validity  of  a  defence,  the  court  will  permit  its  prosecu- 
tion,^ and  it  will  be  allowed  to  proceed  when  it  is  necessary  in 
this  way  to  protect  the  plaintiff's  rights.^  A  new  suit  after  the 
commencement  of  the  foreclosure  suit  would  not  generally  be 
permitted  until  the  remedy  upon  the  decree  obtained  has  been  ex- 
hausted.^^ 

In  the  same  States,  if  a  judgment  at  law  has  already  been  ob- 
tained before  the  filing  of  the  bill  to  foreclose,  no  proceedings  can 

1  Equitable  Life  Ins.   Co.  v.  Stevens,  63        ^  Bartlett  v.  McNeil,  60  N.  Y.  53. 

N.  Y.  341,   1    N.  Y.  Weekly  Dig.  465,  63  "  United  States  L.  Ins.  Co.  v.  Poillon,  7 

N.  Y.  341  ;  Scofield  v.  Doscher,  72  N.  Y.  N.  Y.  Supp.  834.^ 

491.  8  Suydam  v.  Bartle,  9  Paige,  294  ;  Com- 

2  Goodrich  v.  White,  39  Mich.  489.  stock  v.  Drohan,  8  Hun,  373,  71  N.  Y.  9. 

3  Earl  V.  David,  21  Hun,  527.  ^  Thomas  l'.  Brown,  9  Paige,  370.     And 
*  Suydam  v.  Bartle,  9  Paige,  294;  Com-  see  Engle  v.  Underbill,  3  Edw.  249. 

stock  V.  Drohan,  8  Hun,  373 ;  Campbell  v.  "  Nichols  v.  Smith,  42  Barb.  381 ;  Sco- 
Smiih,  71  N.  Y.  26,  27  Am.  Rep.  5.  field  v.  Doscher,  72  N.  Y.  491. 

^  Equitable  Life  Ins.  Co.  v.  Stevens,  63 
N.  Y.  341. 

174 


PERSONAL   REMEDY   BEFORE   FORECLOSURE.      [§§  1224,  1225. 

be  had  upon  this  until  the  remedy  upon  the  judgment  has  been 
exhausted.^  A  bill  which  shows  that  judgment  has  been  obtained 
on  one  of  the  mortgage  notes  and  nearly  paid,  but  does  not  show 
that  an  execution  had  been  issued  and  returned  unsatisfied,  cannot 
be  maintained  unless  a  decree  as  to  that  note  be  waived.^  The  court 
would  not  make  a  decree  against  a  defendant  when  it  appears  that 
tiie  execution  has  not  been  returned  unsatisfied,  although  he  has 
allowed  it  to  be  taken  as  confessed  against  him.-^  On  the  other 
hand,  after  a  decree  has  been  entered  in  a  foreclosure  suit,  proceed- 
ings at  law  to  recover  the  debt  are  prohibited  unless  leave  of  court 
be  obtained.* 

1224.  A  decree  of  foreclosure  before  sale  is  no  bar  to  a  suit 
upon  the  mortgage  debt  while  the  decree  is  under  the  control  of  the 
court  rendering  it,  for  the  decree  or  the  sale  under  it  may  be  set 
aside.  Of  course  an  action  so  commenced  may  be  defeated  by  the 
subsequent  sale  of  the  property  and  satisfaction  of  the  debt  from 
the  proceeds.  Until  that  happens  the  debt  remains  precisely  the 
same  ;  and  if  there  be  no  sale,  or  the  sale  be  set  aside,  the  action 
may  be  prosecuted  to  judgment.^  Until  the  sale  is  consummated 
there  is  no  absolute  satisfaction.  When  the  sale  is  complete  it 
relates  back  to  the  day  of  sale,  and  any  proceedings  then  pending 
upon  the  note  or  other  debt  are  then  defeated.^ 

1225.  Express  covenant  to  pay.  —  The  form  of  mortgage  used 
in  England  almost  always  contains  an  express  covenant  to  repay 
the  money,  and  frequently  no  note  or  bond  is  used  in  connection 
with  the  mortgage.  The  loan  is  then  a  specialty  debt,  and  the 
mortgagee  has  a  personal  remedy  by  action  upon  the  covenant." 
This  covenant  is  extended  also  to  the  payment  of  interest.  When 
the  mortgage  is  executed  by  a  trustee,  it  is  usual  for  the  equitable 
owner  to  execute  the  personal  covenants,  so  that  the  trustee  may 
incur  no  personal  liability.^  This  personal  remedy  upon  the  cove- 
nant the  mortgagee  may  enforce  at  the  same  time  that  he  proceeds 
with  his  remedy  against  the  land  by  a  foreclosure  suit,  or  by  sale 

1  See  Shufelt  v.  Shufelt,  9  Paige,  137,  ^  Morgan  v.  Sherwood,  53  111.  171.  See 
37  Am.    Dec.    381 ;    North  River    Bank  r.    §  950. 

Rogers,  8  Paige,  648.  6  Morgan  v.  Sherwood,  53  111.  171. 

2  Dennis  v.  Hemingway,  Walker  (Mich.)  ^  See  §§  72,  678 ;  Mathew  v.  Blackmore, 
Ch.  387.  1  H   &  N.  762,  26  L.J.  Ex.  150;  Browne 

3  Grosvenor  v.  Day,  Clark  (N.  Y.),  109;  v.  Price,  4  C.  B.  N.  S.  598,  L.  J.  C.  P. 
Shufelt  V.  Shufelt,  9  Paige,  137,37  Am.  290;  Frank  j;.  Pickle,  2  Wash.  T.  55,  3  Pac. 
Dec.  381.  Rep.  584. 

*  In  New  York :  2  R.  S.  191,  §  155.  8  j  Prideaux  Conv.  570,  7th  ed. 

175 


§  1225.]  REMEDIES   FOR   ENFORCING   A   MORTGAGE. 

under  the  power  ;  or  he  may  use  the  personal  covenant,  after  he  has 
realized  what  he  can  from  the  land,  for  the  deficiency.^ 

Although  there  be  no  note  or  bond  or  other  distinct  obligation 
which  the  mortgage  secures,  yet  if  the  mortgage  itself  contains  an 
express  covenant  for  the  payment  of  a  sum  of  money,  the  mort- 
gagor thereby  becomes  liable  to  a  personal  action  for  the  debt ;  ^ 
unless  the  covenant  implies  that  there  is  no  personal  liability,  as 
in  the  case  of  a  trustee  covenanting  for  the  repayment  out  of  the 
money  that  may  come  into  his  hands  from  the  mortgaged  prop- 
erty, or  from  money  that  he  may  otherwise  receive  in  such  official 
capacity.'^  But  an  ordinary  mortgage  or  deed  of  trust  containing  no 
covenant  for  the  payment  of  a  debt  is  not  an  evidence  of  indebt- 
edness.* 

If  there  be  no  personal  obligation  and  no  personal  covenant  in 
the  mortgage,  then  the  only  remedy  is  against  the  property  mort- 
gaged.^ The  proviso  or  condition  in  a  mortgage  that  tlie  deed 
shall  be  void  if  the  mortgagor  pay  a  sum  of  money,  or  perform 
some  other  act,  is  no  ground  for  a  personal  action  ;^  and  neither  is 
a  mere  acknowledgment  or  recital  of  the  consideration  or  of  the  debt 
without  an  express  covenant  to  pay."  It  has  been  held,  however, 
that  the  mortgagee  may  recover  against  the  mortgagor  upon  proof 
of  his  parol  agreement  to  pay  the  mortgage  debt.^ 

A  covenant  for  the  payment  of  the  debt  may  be  implied  from 
a  stipulation  for  payment  on  a  certain  day,  or  from  an  admission 
of  liability  for  the  payment  of  it.^  When  the  debt  is  not  evi- 
denced by  a  note,  but  the  mortgage  contains  a  recital  that  the  mort- 
gagor is  "justly  indebted"  in  a  certain  sum,  the  mortgagee  may 
maintain  an  action  upon  the  debt  without  first  foreclosing  the  mort- 
gage, although  the  mortgage  contains  the  further  covenant  that  if, 

1  Brown  v.  Cascaden,  43  Iowa,  103.  cage,  140  111.  361,  29  N.  E.  Rep.  892 ;  Baum 

-  Elder  v.  Rouse,  15  Wend.  218.  v.  Tonkin,  110  Pa.  St.  569. 

3  Mathew  ti.  Blaekniore,  1  II.  &  N.  762.  So   by   statute   iu   Indiana:    Acts    1881, 

*  Schifferstein  v.  Allison,  123  111.  662,  15  §  713  of  Civil  Code. 

N.  E.  Rep.  948  ;    Scott    v.  Fields,  7  Watts,  «  Smith  v.  Stewart,  6  Blackf.  162  ;  Drum- 

360  ;  Fidelity  Co.  v.  Miller,  89  Pa.  St,  26  ;  mond  v.  Richards,  2  Munf.  337. 

Baum  V.   Tonkin,   110  Pa.  St.  569,  1  Atl.  ^  Scott  u.  Fields,  7  Watts,  360  ;  Fidelity 

Rep.    535 ;    Reap   v.   Battle   (Pa.),  26  Atl.  Ins.  &  Trust  Co.  v.  Miller,  89  Pa.  St.  26 ; 

Rep.  439.  Henry  v.  Bell,  5  Vt.  393. 

5  §677;   Culvert;.  Sisson,  3  N.  Y.  264 ;  **  Tonkin  v.  Baum,   114    Pa.   St.  414,  7 

Weed  V.  Covill,  14  Barb.  242 ;   Coleman  v.  Atl.  Rep.  185. 

Van  Rensselaer,  44  How.  Pr.  368 ;  Gaylord  ^  Hart  v.  Eastern  Union  Railway  Co.  7 

V.  Knapp,  15  Hun,  87  ;   Spencer  v.  Spencer,  Exch.  246,  8  Exch.  116;  Marryat  v,  Mar- 

95  N.  Y.  353;  Halderman  ;;.  Woodward,  22  ryat,  28  Beav.  224;  Saunders  v.  Milsome, 

Kans.  734;  Weil  v.  Churchman,  52  Iowa,  L.  R.  2  Eq.   573.     But  it  is  provided    by 

253,  3  N.  W.  Rep.  38  ;  Von  Camp  v.  Chi-  statute  in  several  States  that  no  covenant 

for  payment  shall  be  implied.     §  678. 

176 


PERSONAL   REMEDY    BEFORE    FORECLOSURE.  [§  1226. 

from  any  cause,  said  property  should  fail  to  satisfy  the  debt,  the 
mortgagor  will  pay  the  deficiency.^ 

1226.  Circumstances  that  exclude  personal  remedy.  —  The 
holder  of  a  mortgage  may  be  debarred  from  resorting  to  the  per- 
sonal liability  of  the  mortgagor  by  reason  of  equities  or  agreements 
between  the  parties  of  which  the  holder  has  knowledge ;  as  when 
the  owner  of  land,  having  mortgaged  it,  subsequently  sold  the  equity 
of  redemption  by  a  deed  which  stipulated  that  the  grantee  should 
assume  and  pay  the  mortgage,  and  took  back  a  second  mortgage  to 
himself  reciting  this  stipulation.  The  assignee  of  the  second  mort- 
gage, who  also  took  an  assignment  of  the  first  mortgage,  was  not 
allowed  to  sue  the  first  mortgage  note.^ 

A  mortgagee  will  lose  his  right  to  sue  the  mortgagor  for  the  debt 
by  so  dealing  with  the  mortgaged  property  as  to  put  it  out  of  his 
power  to  restore  the  property  upon  a  tender  of  full  payment.  Thus 
he  loses  his  right  by  releasing  the  security  to  a  subsequent  purchaser 
of  the  property.  If  a  mortgagee  concurs  with  a  purchaser  of  the 
equity  of  redemption  in  a  sale  of  the  property,  and  allows  the  pur- 
chaser to  receive  the  purchase-money,  he  cannot  afterwards  sue  the 
original  mortgagor  for  the  debt.^ 

When  the  mortgagor,  with  the  knowledge  of  the  mortgagee,  sells 
the  mortgaged  estate  to  one  who  assumes  the  payment  of  the  mort- 
gage debt,  his  relation  to  the  mortgagee  is  thenceforth  that  of  a 
surety  of  the  mortgage  debt.  The  property  is  moreover  the  pri- 
mary fund  for  the  payment  of  the  debt,  and  a  release  to  the  pur- 
chaser, or  an  extension  of  the  time  of  payment,  may  discharge  the 
mortgagor.* 

When  a  mortgage  is  made  to  secure  the  debt  of  another,  and  it 
does  not  by  its  terms  or  otherwise  impose  any  personal  liability 
upon  the  mortgagor,  he  is  not  personally  bound  for  the  debt,  and 
there  can  be  no  general  execution  against  him.^ 

No  personal  judgment  can  be  rendered  against  the  wife  of  the 
mortgagor,  when  it  is  not  alleged  that  the  debt  is  one  for  which  her 
separate  estate  is  liable.*' 

1  Newbury  v.  Rutter,  38  Iowa,  119.  Deland  v.  Mershon,  7  Iowa,  70,  was  a  case 

2  Swett  V.  Sherman,  109  Mass.  231.  in  which  one  of  the  mortgagors  was  person- 
'•^  Palmer  v.  Hendrie,  28  Beav.  341,  27    ally  liable.     New  Orleans  Canal  &  Banking 

Beav.  349.  Co.  v.  Hagan,  1  La.  Ann.  62. 

^  §§  740-742.  6  McGlaughlin   v.   O'Kourke,    12    Iowa, 

^  Chittenden  v.  Gossage,  18  Iowa,  1.57.    459. 
VOL.  II.                  12  277 


§§  1227,  1228.]   REMEDIES  FOR  ENFORCING  A  MORTGAGE. 

III.  Perso7ial  Remedy  after  Foreclosure. 

1227.  Suit  for  deficiency  after  a  sale  under  power.  —  If  an 
action  at  law  on  the  debt  be  pending  at  the  time  of  a  sale  under 
the  mortgage,  there  can  be  no  judgment  if  the  proceeds  of  the 
sale  equal  or  exceed  the  whole  mortgage  debt ;  but  if  the  pro- 
ceeds be  insufficient  to  pay  the  debt,  there  may  be  judgment  for 
the  balance  after  deducting  the  proceeds  of  sale.^  Where  suit  is 
brought  upon  certain  instalments  of  a  note,  and  subsequently  the 
mortgaged  property  is  sold  for  a  less  sum  than  the  whole  mort- 
gage debt,  the  mortgagee  is  not  obliged  to  apply  the  proceeds  of 
the  sale  to  the  payment  of  the  instalments  first  due,  and  sought 
to  be  recovered  in  the  action  at  law.  He  has  the  right  to  appro- 
priate the  amount  so  received  to  the  payment  of  either  instal- 
ment.^ The  holder  of  the  mortgage  being  entitled  to  recover  the 
full  amount  of  the  mortgage  debt,  if  there  be  a  deficiency  after 
foreclosure  of  the  mortgage,  either  by  suit  or  under  a  power  of  sale, 
he  may  maintain  an  action  on  the  debt  for  what  remains  due  ;  ^ 
and  a  judgment  for  the  deficiency  does  not  open  the  sale  and  au- 
thorize the  debtor  to  redeem.*  A  sale  under  a  power  bars  the 
equity  of  redemption  as  effectually  as  does  a  foreclosure  and  sale  by 
decree  of  court. 

1228.  Suit  at  law  may  be  maintained  for  a  deficiency  after 
a  sale  under  a  decree  in  equity,  if  the  plaintiff  has  not  taken  a 
judgment  in  the  foreclosure  suit  for  any  deficiency  there  may  be 
after  the  sale  of  the  property.^  The  foreclosure  operates  as  a  pay- 
ment of  the  debt  to  the  amount  received  from  the  sale,  or  to  the 
value  of  the  property  in  case  of  a  foreclosure  without  sale.'^ 

If  the  mortgage  provides  that  the  whole  debt  shall  become  due 
upon  default  in  the  payment  of  any  instalment  of  principal  or  in- 
terest, a  suit  at  law  may  be  maintained  for  the  balance  due  upon 

1  See    §§    950-953,    and    chapter    xl.  ;    But  if  a  foreclosure  is  had  in  New  York, 
Wing  V.  Hayford,  124  Mass.  249.  and  a  personal  judgment  is  sought  against 

2  Draper  v.  Mann,  117  Mass.  439.  the  defendant  in  another  State,  prior  per- 

3  Marston  v.  Marston,  45  Me.  412.  mission  of  the  New  York  court  is  not  a  ne- 
*  Weld  V.  Eees,  48  111.  429.  cessarj  condition  precedent  to  the  mainte- 
^  See   §§    1709-1721 ;    Omaly   v.    Swan,    nance  of  an  action  against  a  resident  of  such 

3  Mason,  474;  Globe  Ins.  Co.  v.  Lansing,  other  State  for  the  unpaid  balance  of  the 

5  Cow.  380,  15  Am.  Dec.  474;  Lansings,  mortgage  debt.  Williams  r.  Follett,  17  Colo. 

Goelet,  9  Cow.  346  ;  Porter  v.  Pillsbury,  36  51,  28  Fac.  Rep.  330. 

Me.  278 ;  Stevens  v.  Dufour,  1  Blackf.  387  ;  ^  §  953  j  Johnson  v.  Candage,  31  Me.  28 ; 

Watson  V.  Hawkins,  60  Mo.  550.     In  New  Hunt  v.    Stiles,  10  N.  H.  466;  Bassett  v. 

York,  prior  permission  to  bring  such  action  Mason,  18  Conn.  131  ;  Duval  v.  McLoskey, 

must  be  obtained  of  the  court  in  which  the  1  Ala.  708. 
foreclosure  proceedings   are   had ;  §  1351. 

178 


SALE  OF  PREMISES  ON  EXECUTION  FOR  MORTGAGE  DEBT.   [§  1229. 

the  mortgage  note  after  foreclosure,  though  the  note  by  its  terms  be 
not  due.i 

Where  a  sale  of  the  whole  of  the  mortgaged  premises  is  made 
in  satisfaction  of  the  first  instalment  of  the  mortgage,  the  usual 
clause  of  the  decree,  allowing  the  plaintiff  to  apply  for  a  further 
orde*r  of  sale  upon  the  falling  due  of  the  subsequent  instalment,  and 
for  an  execution  for  any  deficiency,  becomes  inoperative,  and  is  no 
bar  to  a  personal  action  against  the  mortgagor  for  the  subsequent 
instalment.  After  the  sale  of  all  the  property,  the  only  remedy 
remaining  is  the  enforcing  of  the  personal  liability"  of  the  mort- 
gagor upon  a  note  or  instalment  of  debt  subsequently  falling  due, 
and  there  could  be  no  further  order  of  sale,  and  therefore  nothing 
on  which  there  could  properly  be  a  further  decree.  The  only  rem- 
edy is  by  suit  at  common  law.^  This  cannot  be  maintained  until 
the  debt  is  due  and  payable  by  its  terms.^ 

IV.  Sale  of  Mortgaged  Premises  on  Execution  for  Mortgage  Debt. 

1229.  Generally  a  mortgagee  cannot,  upon  a  judgment  recov- 
ered for  the  debt  secured  by  a  mortgage,  levy  the  execution  upon 
the  mortgaged  property,  though  it  may  be  levied  upon  any  other 
property  of  the  debtor.^  Such  a  proceeding  would  amount  to  a 
foreclosure  in  a  way  not  contemplated  by  the  parties  or  provided  for 
by  law.  The  lev}'  would  therefore  be  ineffectual,  and  would  leave 
the  mortgage  as  it  stood  before,'^  subject  to  redemption.*^  The 
mortgagee  is  just  where  he  began.' 

A  first  mortgagee  may  sue  his  mortgage  debt  and  levy  execution 
upon  the  mortgagor's  right  to  redeem  a  second  mortgage  of  the 
same  land ;  for  in  such  case  he  does  not  violate  the  contract  con- 
tained in,  and  the  relations  created  by,  the  mortgage  deed.'^     And 

1  Gregory  v.  Marks,  8  Biss.  44.  50  Miss.  213.     Indiana  :  R.  S.  1888,  §  1105  ; 

■2  Bliss  V.  Weil,  14  Wis.  35,  80  Am.  Dec.  Linville  v.  Bell,  47  Ind.  547.     North  Caro- 

766.  Una :  Camp  v.  Coxe,  1   Dev.  &  Bat.  L.  52. 

3  Danforth  v.  Coleman,  23  Wis.  528.  Kentucky :  Goring  v,  Shreve,  7   Dana,  64 ; 

*  Hill  V.  Smith,  2  McLean,  446.    Massa-  Waller  v.  Tate,  4  B.  Mod.  529.    Alabama : 

chusetts :  Atkins  v.   Sa\V3'er,  1    Pick.  351,  Powell  v.   Williams,  14  Ala.  476,  48  Am. 

II  Am.  Dec.  188;  Washburn  v.  Goodwin,  Dec.  105;  Boswell  v.  Carlisle,  55  Ala.  554; 

17  Pick.  137.     New  York:  Code  Civ.  Pro.  Barker    v.   Bell,   37    Ala.   354.     Missouri: 

§  1432;  Tice  v.  Annin,  2  Johns.  Ch.  125,  Young  v.  Ruth,  55  Mo.  515.     North  Caro- 

130,  per  Kent,  C,  who  expressed  the  opinion  Una :  Code  of  Remedial  Justice  1876,  §  1432. 

that  the  true  and  only  remedy  for  the  mis-  ^  Young  v.  Ruth,  55  J\Io.  515;  Lumley 

chief  is  for  the  court  of  equity  to  prevent  v.  Robinson,  26  I\Io.  364. 

the  mortgagee  from  proceeding  at  law   to  '  Powell   v.    Williams,    14   Ala.  476,  48 

sell  the  equity  of  redemption.     Delaplaine  Am.  Dec.  105;  Boswell  r.  Carlisle,  55  Ala. 

V.  Hitchcock,  6  Hill,  14;  Trimin  v.  Marsh,  554. 

3    Lans.    509.     Mississippi :  Carpenter    v.        '  Thornton  v.  Pigg,  24  Mo.  249. 
Bowen,  42   Miss.  28;  Davis  v.   Hamilton,        ^  Johnson  u.  Stevens,  7  Cush.  431. 

179 


§  1229.]  REMEDIES   FOR   ENFORCING   A   MORTGAGE. 

for  the  same  reason  the  indorsee  of  one  of  two  notes  secured  by 
mortgage,  to  whom  no  assignment  of  the  mortgage  has  been  made, 
may  levy  upon  the  equity  of  redemption  to  satisfy  a  judgment  re- 
covered by  him  on  the  note.^  The  purchaser  in  such  case  takes 
subject  to  the  lien  of  the  mortgage.^ 

Doubts  have  even  been  expressed  whether  a  mortgagee  could 
sell  under  execution  for  any  other  debt  due  him.^  But  these 
doubts  were  not  well  founded  ;  for  upon  such  a  sale  the  sum  bid  is 
the  value  of  the  land  above  the  mortgage  debt,  just  as  it  is  in  case 
of  a  sale  made  upon  an  execution  obtained  by  a  third  person.^  If 
a  stranger  purchases  at  such  sale,  the  relations  of  the  mortgagor 
and  mortgagee  are  not  disturbed  any  more  than  they  are  when  the 
sale  is  upon  an  execution  obtained  by  a  stranger.  And  if  the  mort- 
gagee purchases,  the  effect  is  equally  in  the  one  case  as  in  the  other 
to  extinguish  the  mortgage  debt.^ 

In  some  States,  however,  it  is  held  that  the  mortgaged  property 
may  be  sold  under  an  execution  issued  upon  a  judgment  for  the 
mortgage  debt.^  In  such  case,  not  merely  the  equity  of  redemp- 
tion is  sold  but  the  entire  mortgaged  estate,  so  that  the  purchaser 
takes  the  premises  free  of  the  mortgage,'^  though  the  price  ob- 
tained is  not  sufficient  to  pay  the  mortgage  debt.  The  debt,  how- 
ever, is  extinguished  only  to  the  amount  of  the  purchase-money 
received.^  Such  sale  is,  of  course,  a  waiver  of  the  mortgage,  which 
cannot  afterwards  be  foreclosed  ;  or  it  may  be  regarded  as  operat- 
ing as  a  foreclosure,  with  the  same  rights  of  redemption  in  the 
debtor  and  his  creditors  as  arise  upon  a  sale  under  a  decree  of  fore- 

1  Crane  v.  March,  4  Pick.  131,  16  Am.        In  Arkansas  it  seems  that  the  equity  of 

Dec.  329 ;  Andrews  v.  Fiske,  101  Mass.  422.  redemption  may  be  sold  on  execution   for 

"  Whitmore  v.  Tatum,  54  Ark.  457,  16  the  mortgage  debt,  and  the  purchaser  takes 

S.  W,  Rep.  198.  subject  to  the  lien  of  the  mortgage.     Rice 

3  Camp    V.    Coxe,    1    Dev.  &  Bat.    52 ;  ;;.  Wilburn,  31  Ark.  108.     This  was  a  sale 

Thompson  v.  Parker,  2  Jones  Eq.  475.  by  a  vendor  for  purchase-money,  and  was 

*  §§  665.  subject  to  bis  lien.     In  Whitmore  v.  Tatum, 

'^  Per  Rodman,  J.,  in  Barnes  v.  Brown,  54  Ark.  457,  16  S.  W.  Rep.   198,  the  sale 

71  N.  C.  507,  510.  was  for  an  instalment  of  the  mortgage  debt, 

6  Cottingham  v.  Springer,  88  111.  90;  but  this  distinction  seems  not  to  have  been 
Fitch  V.  Pinckard,  5  111.  69 ;  Lydecker  i^.  considered.  There,  of  course,  the  equity  of 
Bogert,  38  N.  J.  Eq.  136  ;  Lanahan  v.  Law-  redemption  alone  was  sold.  Only  the  inter- 
ton  (N.  J.  Eq.),  23  Atl.  Rep.  476.  est  of  the  mortgagor  passed  by  such  an  exe- 

">  Youse    V.   M'Creary,   2    Blackf.    243;  cution  sale,  and  the  interest  of  the  mort- 

Freeby  v.  Tupper,  15  Ohio,  467  ;  Hollister  gagee  was  affected  no  further  than  the  price 

V.Dillon,  4  Ohio  St.  197;  Fosdick  r.  Risk,  15  paid  for  the  equity  of  redemption  went  to 

Ohio,  84;  Pierce  y.  Potter,  7  Watts,  475.  diminish    the   mortgage   debt.     This  view 

8  Deare  v.  Carr,  3  N.  J.  Eq.  513;   Pierce  rests  upon  the  authority  of  Jackson  v.  Hull, 

V.  Potter,  7  Watts,  475.  10  Johns.  481. 

180 


SALE   OF   PREMISES   ON  EXECUTION   FOR   MORTGAGE   DEBT.      [§  1230. 

closure.^  If,  instead  of  a  sale,  the  mortgagee  levy  his  execution  on 
the  land  mortgaged  for  the  same  debt,  and  if  the  debtor  neglects 
to  redeem,  the  estate  becomes  absolute  in  the  mortgagee  notwith- 
standing the  mortgage.^  A  mortgagee  may  watve  his  lien  on  the 
real  estate,  and  levy  an  execution  issued  upon  a  judgment  recovered 
on  his  mortgage  debt  upon  the  same  property,  just  as  he  might 
upon  any  other  property  of  his  debtor.^ 

If  upon  such  execution  sale  the  mortgagee  himself  finally  pur- 
chases the  property,  and  afterwards  seeks  to  levy  his  execution  upon 
other  land  of  the  mortgagor  in  order  to  make  up  a  deficiency,  the 
mortgagor  is  not,  ipso  facto,  entitled  to  an  injunction  to  restrain 
him  from  selHng  such  other  land,  on  the  ground  that  the  purchase 
of  the  equity  of  redemption  extinguished  the  debt,  but  the  mortga- 
gor may  have  the  sale  enjoined  until  it  shall  have  been  determined 
whether  the  mortgage  debt  has  been  paid,  and  how  much  still  re- 
mains to  be  satisfied.* 

In  those  States  in  which  it  is  provided  by  statute  that  execu- 
tions shall  be  levied  upon  real  estate  by  sale  only  when  the  prop- 
erty is  subject  to  mortgage,  it  may  well  be  that  a  mortgagee  cannot 
levy  his  execution  by  sale  of  the  equity  raised  by  his  own  mortgage 
given  to  secure  payment  of  the  same  debt;  for  he  cannot  waive  his 
security  and  at  the  same  time  treat  it  as  still  subsisting  and  con- 
stituting the  foundation  of  an  equity.  But  the  holder  of  a  junior 
mortgage  may  in  such  case  sell  his  debtor's  equity  growing  out  of 
a  prior  mortgage.^ 

1230.  But  an  execution  for  the  mortgage  debt  may  be  levied 
upon  any  other  land  of  the  debtor,  or  upon  his  personal  pi'operty, 
in  the  same  manner  as  any  other  debt.^ 

Other  property  of  the  debtor  may  be  attached  in  a  suit  at  law 
upon  the  mortgage  debt,  or  a  bill  in  equity  may  be  maintained  to 
reach  and  apply  in  payment  of  such  debt  property  of  the  debtor 
which  cannot  be  come  at  to  be  attached  or  taken  on  execution.''^ 

After  a  redemption  from  a  mortgage  sale,  a  judgment  for  the 
deficiency  may  be  levied  upon  the  same  property,  although  the 
debtor  has  other  property  subject  to  execution.^ 

1  Cottingham  v.  Springer,  88  111.  90  ;  «  §  665  ;  Roosevelt  i'.  Carpenter,  28  Barb. 
Sharts  v.  Await,  73  Ind.  304.  426  ;    Simnions  Hardware  Co.  v.  Brokaw, 

2  Crooker  v.  Frazier,  52  Me.  405 ;  Porter    7  Neb.  405. 

V.  King,  1  Me.  297.  ^  Tucker  v.  McDonald,  105  Mass.  423. 

3  Lord  V.  Crowell,  75  Me.  399.  »  Cauthorn  v.  Indianapolis  &  Vincennes 
*  Lydecker  v.  Bogert,  38  N.  J.  Eq.  136.       R.  R.  Co.  58  Ind.  14. 

6  Forsyth  i;.  Rowell,  59  Me.  131. 

181 


§  1231.]  REMEDIES    FOR   ENFORCING   A   MORTGAGE. 

V.    Remedy  as  affected  by  Bankruptcy. 

1231.  Although  a  discharge  in  bankruptcy  will  prevent  a 
judgment  for  a  deficiency  on  the  note  or  debt,  it  will  not  prevent  a 
judgment  of  foreclosure.^  Neither  will  the  foreclosure  suit  be  con- 
tinued to  await  a  discharge  in  bankruptcy,  because  the  discharge,  if 
had,  will  not  affect  the  mortgage  lien.^  The  lien  of  the  mortgage 
is  not  affected  by  the  proceedings.  The  assignee  takes  the  property 
subject  to  all  the  legal  and  equitable  rights  of  the  mortgagee  and 
of  others.^  The  assignee  takes  only  the  rights  that  the  debtor  him- 
self had,  and  must  recognize  all  the  equities  of  other  parties  which 
the  debtor  would  be  held  to  recognize  in  a  court  of  equity.  Thus 
an  agreement  by  the  debtor  to  give  a  mortgage  ruAj  be  treated  as  a 
specific  lien  upon  the  land ;  and  a  mortgage  made  in  pursuance  of 
the  agreement,  although  made  just  previous  to  the  debtor's  bank- 
ruptcy, so  that  by  itself  it  would  be  open  to  objection  as  a  fraudu- 
lent preference,  by  reference  to  the  agreement,  may  be  sustained  as 
a  valid  security.*  And  so  a  mortgage  given  a  short  time  prior  to 
the  mortgagor's  bankruptcy,  but  in  renewal  of  a  security  which 
was  not  a  preference  under  the  bankrupt  act,  is  not  open  to  that  ob- 
jection,^ Adjudication  alone  does  not  divest  the  bankrupt's  title, 
but  this  remains  in  him  until  the  appointment  of  an  assignee. 
Therefore,  where  one  was  adjudged  a  bankrupt,  but  no  assignee 
was  appointed,  and  no  further  proceedings  had,  for  the  reason  that 
the  debtor  compromised  with  his  creditors,  giving  notes  secured  by 
a  mortgage,  it  was  held  that,  when  a  year  afterwards  he  again  be- 
came involved  and  an  assignee  was  appointed,  the  mortgage  was 
valid  and  might  be  foreclosed.^ 

Inasmuch  as  a  mortgage  taken  by  a  surety  inures  to  the  benefit 
of  the  principal  creditor,  the  surety  may  assign  the  mortgage  to 
such  creditor;  and  the  subsequent  discharge  of  both  the  surety  and 
the  principal  debtor  does  not  destroy  the  lien  of  the  mortgage,  or 
affect  the  mortgagee's  right  to  foreclose  it."  But  even  without  such 
an  assignment  a  court  of  bankruptcy  will  enforce  the  mortgage 
for  the  benefit  of  the  creditor  to  whom  the  surety  has  become 
bound.^ 

1  See  §  1438 ;  Roberts  v.  Wood,  .38  Wis.  ^  Burnhisel  v.  Firman,  22  Wall.  170. 
60;  Brown  r.  Hoover,  77   N.  C.   40;  OH-  ^  Robinson  f.  Plall,  8  Benedict,  61. 
phint  V.  Eckeriey,  36  Ark.  69.  7  Carlisle  v.  Wilkins,  51  Ala.  371. 

2  Toler  V.  Passmore,  62  Ga.  263.  »  In  re  Pierce,  2  Lowell,  343 ;  In  re  Jay- 

3  Gibson  v.  Warden,  14  Wall.  244.  cox,  8  N.  Bank.  R.  241. 

4  Hewitt  V.  Northup,  9  Hun,  .543 ;  Bur- 
dick  V.  Jackson,  15  N.  Bank.  R.  318. 

182 


REMEDY   AS   AFFECTED   BY    BANKRUPTCY.  [§  1232. 

If  proceedings  to  foreclose  are  commenced  after  the  mortgagor 
has  filed  his  petition  in  bankruptcy,  although  no  judgment  can  be 
had  against  him  personally,  a  decree  may  be  rendered  against  the 
property  .1 

After  the  assignee  has  taken  actual  possession  of  the  mortgaged 
estate,  the  mortgagee  cannot  by  an  action  of  ejectment  disturb  his 
possession.  The  possession  of  the  assignee  is  the  possession  of  the 
court  in  bankruptcy,  and  if  the  mortgagee  would  enter  he  must 
first  obtain  permission  of  that  court.  If  the  mortgagee  be  already 
in  possession,  he  cannot  be  disturbed  by  the  assignee,  except  upon 
redemption  of  the  mortgage.  If  the  assignee,  for  the  reason  that 
the  incumbrance  is  greater  than  the  value  of  the  property,  does  not 
assume  possession  of  it,  then  the  bankruptcy  proceedings  do  not 
prevent  the  mortgagee  from  recovering  possession  of  the  property 
from  a  third  person  not  connected  with  the  assignee.  No  permis- 
sion from  the  bankruptcy  court  is  necessary  to  authorize  the  mort- 
gagee in  such  case  to  maintain  an  action  of  ejectment.^  Although 
all  the  propert}'^  and  rights  of  the  bankrupt  pass  to  the  assignee  by 
operation  of  law,  and  become  vested  in  him  as  soon  as  he  is  ap- 
pointed, he  is  not  bound  to  take  possession  of  all  the  property.  If 
the  property  be  so  incumbered  as  to  be  of  an  onerous  or  unprofita- 
ble character,  or  if  it  is  liable  to  become  a  burden  rather  than  a 
profit  to  the  estate,  the  assignee  is  not  bound  to  take  the  property 
into  possession,  or  to  take  measures  to  sell  it;  ^  but  rather  it  is  his 
duty  not  to  do  so.  If  he  elects  not  to  take  the  property,  it  remains 
in  the  bankrupt.  If  he  does  not  elect  to  take  possession  of  the  prop- 
erty within  a  reasonable  time,  he  is  deemed  to  have  elected  to  aban- 
don it.  The  title  of  the  bankrupt  to  the  equity  of  redemption  is 
good  against  all  the  world  except  the  assignee,  as  the  presumption  is 
that  the  property  was  regarded  as  onerous,  and  that  the  assignee 
elected  not  to  take  it  into  possession.* 

1232.  In  what  court  the  mortgage  lien  may  be  enforced.  — 
Although  it  is  now  generally  held  that  the  state  courts  may,  with 
the  assent  of  the  assignee,  be  employed  not  only  to  ascertain  the 
amount  of  a  mortgage  lien,  but  to  enforce  it  as  well,  it  was  formerly 
held  that  the  only  proper  tribunal  for  these  purposes  was  the  dis- 
trict court  in  bankruptcy  ;  and  that,  if  the  creditor  remained  out- 
side this  court,  he  did  so  at  the  risk  of  being  refused  the  right  to 
enforce  his  lien  in   the  state  court.^     The  commencement  of  pro- 

1  Cockrill  V.  Johnson,  28  Ark.  193.  *  Ainory  v.  Lawrence,  3  Cliff.  523. 

2  Eyster  v.  Gaff,  2  Colo.  228.  ^  Blum  v.  Ellis,  73  N.  C.  293.     Judge 
8  McHenry  v.  La  Socie'te  Franyaise,  95    Settle  in  this  case  said:  "Indeed,  when  we 

U.  S.  58.  183 


§  1232.]  REMEDIES   FOR  ENFORCING    A   MORTGAGE. 

ceedings  in  bankruptcy  at  once  gives  to  the  court  of  bankruptcy 
full  and  exclusive  jurisdiction  over  all  the  bankrupt's  property,  and 
it  retains  this  jurisdiction  so  long  as  the  proceedings  in  bankruptcy 
are  pending.  It  matters  not  that  these  proceedings  are  in  a  dis- 
trict and  State  other  than  that  where  the  property  is  situated ;  the 
courts  of  the  State  where  the  property  is  do  not  thereby'  acquire 
any  rights  over  it.^ 

Therefore,  if  proceedings  to  foreclose  a  mortgage  are  instituted 
in  a  state  court  after  an  adjudication  of  bankruptcy,  they  will, 
upon  motion,  be  stayed  until  these  proceedings  are  closed.^  The 
bankruptcy  court  may  order  the  assignee  to  sell  the  property  sub- 
ject to  the  mortgage,  and  thus  leave  the  mortgage  to  be  enforced 
against  the  property  in  the  hands  of  the  purchaser.  After  such 
sale,  it  would  seem  that  proceedings  to  foreclose  would  be  no  longer 
stayed.  But  on  the  other  hand,  the  court  sitting  in  bankruptcy 
may  authorize  the  assignee  to  redeem  the  mortgage  ;  or  may  order 
the  entire  property  to  be  sold  free  from  the  mortgage  lien,  and  that 
the  proceeds  be  paid  into  court,  in  which  case  the  validity  of  the 
mortgage  is  there  investigated  in  determining  the  distribution  of 
the  proceeds,  and  the  purchaser  takes  the  estate  discharged  of  the 
mortgage.^ 

The  state  courts,  however,  have  prima  facie  jurisdiction  to  fore- 
close mortgages,  although  the  suits  for  the  purpose  are  commenced 
after  the  adjudication  in  bankruptcy.^  The  provisions  of  the  bank- 
rupt law,  that  the  property  covered  by  a  mortgage  shall  be  sold 
in  such  manner  as  the  bankruptcy  court  shall  direct,  are  for  the 
benefit  and  protection  of  the  unsecured  creditors  represented  by 
the  assignee,  and  he  may,  for  himself  and  them,  waive  such  bene- 
fit, and  permit  the  property  to  be  sold  in  a  suit  in  a  state  court.^ 
If  the  assignee  submits  himself  to  the  jurisdiction  of  a  state  court 
he  is  bound  by  its  judgment.''  The  jurisdiction  of  the  state  courts 
of  suits  for  the  settlement  of  conflicting  claims  to  property  belong- 

behold  the  obscurity  in  which  this  subject  25  Mich.  476,   12  Am.   Rep.  291.     In  like 

has  been  involved  by  the  conflicting  deci-  manner   bankruptcy   stays  proceedings    in 

sions  of  different  courts,  we  are  inclined  to  a  state  court  to  enforce  a  mechanic's  lien ; 

think  that  it  would  have  been  better  had  Clifton  y.  Foster,  103  Mass.  233,  4  Am.  Rep. 

Congress  withheld  entirely  from  state  tri-  539 ;  or  to  set  aside  a  fraudulent  convey- 

bunals  all  questions  touching  the  bankrupt,  ance.     Gilbert  v.  Priest,  65  Barb.  444,  over- 

his  creditors,  and  his  assets."  ruling  63  Barb.  329. 

1  Markson  v.  Haney,  47  Ind.  31.  *  Broach  v.   Powell,  79  Ga.  79,  3  S.  E. 

2  Levy  V.  Haake,  53  Ala.  267.  Rep.  763. 

3  Markson  v.  Haney,  47  Ind.  31;   New-  &  Mays  v.  Fritton,  20  Wall.  414;  In  re 
man  v.   Fisher,  37   Md.  259 ;    Brigham  v.  Moller,  7  Benedict,  726. 

Claflin,  31  Wis.  607  ;    Voorhies  v.  Frisbie,        «  Mays  v.  Fritton,  20  Wall.  414. 
184 


REMEDY    AS   AFFECTED   BY    BANKRUPTCY.  [§  1233. 

ing  to  tlie  estate  of  tlie  bankrupt  is  not  divested, ^  The  mortgagee 
may,  with  leave  of  the  bankruptcy  court,  institute  foreclosure  pro- 
ceedings in  the  state  court  ;^  or  the  assignee  may  sue  in  a  state 
court  to  collect  the  assets.^  Objection  that  leave  was  not  given  by 
the  bankruptcy  court  to  file  a  bill  of  foreclosure  will  not  be  sus- 
tained if  made  a  year  and  a  half  after  the  bill  was  filed,  and  when 
the  party  objecting  had  in  the  mean  time  appeared  and  answered, 
especially  when  the  premises  were  at  the  time  in  the  possession  of 
a  receiver  appointed  in  a  former  suit  in  the  same  court.*  The 
homestead  of  a  bankrupt  never  comes  within  the  jurisdiction  of  the 
bankruptcy  court ;  and  therefore  a  creditor  having  a  lien  upon  that 
alone  may  enforce  it  by  suit  while  the  bankruptcy  proceedings  are 
pending,  without  obtaining  leave  of  that  court.^ 

The  federal  courts  have  exclusive  jurisdiction  "  of  all  matters 
and  proceedings  in  bankruptcy."  ^  These  matters  include  all  things 
treated  of  or  affected  by  the  legislation  upon  the  subject  of  bank- 
ruptcy. It  is  therefore  held  that  a  state  court  has  no  jurisdic- 
tion to  cancel  a  mortgage  valid  under  the  laws  of  the  State,  upon 
the  ground  that  it  was  made  in  contravention  of  the  federal  bank- 
rupt law." 

1233.  Proceedings  in  bankruptcy  against  the  owner  of  the 
equity  do  not  suspend  a  suit  already  commenced  in  a  state 
court  for  the  foreclosure  of  the  mortgage,  and,  unless  restrained 
by  injunction  from  the  United  States  court  in  bankruptcy,  the 
plaintiff  may  proceed  to  judgment  and  sale  of  the  premises,  and 
the  purchaser  acquires  a  good  title  against  the  parties,  including 
any  assignee  who  may  afterwards  be  appointed.^  Upon  the  prin- 
ciple that  a  decree  of  foreclosure  is  binding  upon  one  who  purchases 
the  equity  of  redemption  or  acquires  any  interest  in  it  pending  the 
suit  for  foreclosure,  it  is  held  that  an  assignee  in  bankruptcy  ap- 
pointed pending  such  suit  is  barred  by  a  decree  against  the  mort- 
gagor.    The  assignee  stands  as  any  other  grantee  of  the  mortgagor 

1  Eyster  v.  Gaff,  91  U.  S.  521,  525  ;  Je-  ^  ciaflin  v.  Houseman,  93  U.  S.  130. 

rome  v.  McCarter,  94  U.  S.  734.  *  Jerome  v.  McCarter,  94  U.  S.  734. 

-  McHenry  v.  La  Socie'te  Francaise,  &c.  ^  In  re  Sinnett,  4  Sawyer,  250. 

95  U.  S.    58;    Miller   v.  Hardy,    isi    Ind.  «  pj.  g.  u.  S.  §  711. 

13,  29  N.  E.  Rep.  776.  If  in  such  case  the  ^  Brewster  v.  Dryden,  53  Iowa,  657,  6 
bankruptcy  court  authorizes  its  assignee  N.  W.  Rep.  16.  And  see  Hecht  v.  Spring- 
to  abandon  all  claims   on  the  lands  upon  stead,  51  Iowa,  502. 

condition   that  the  mortgagee  releases  the  *  Lenihan  v.  Ilamann,  55  N.  Y.  652,  14 

estate  from  further  liability,  this  gives  the  Abb.  (N.  S.)  274;   McGready  v.  Harris,  54 

state    court   jurisdiction    to    foreclose,    as  Mo.  137.     In  the  latter  case  there  had  been 

against  all  persons  concerned.  no  adjudication  prior  to  the  sale. 

185 


§  1233.]  REMEDIES   FOR   ENFORCING   A   MORTGAGE. 

would  stand  who  had  acquired  title  after  the  commencement  of  the 
foreclosure  suit.^ 

If  the  assignee  in  bankruptcy  does  not  assume  possession  of 
an  estate  mortgaged  by  the  bankrupt,  proceedings  to  foreclose  the 
mortgage  whenever  commenced  may,  by  his  tacit  consent,  go  on  in 
the  state  court.^ 

Upon  the  institution  of  proceedings  in  bankruptcy,  and  the  ap- 
pointment of  an  assignee,  the  bankrupt's  property  comes  under 
the  jurisdiction  of  the  national  courts,  and  the  state  courts  can 
act  no  further  in  relation  to  it  while  such  proceedings  are  pend- 
ing, except  with  the  consent  of  the  bankruptcy  court  or  of  its 
officer,  the  assignee,  in  whom  the  property  is  vested  by  the  as- 
signment. A  suit  to  foreclose  a  mortgage  upon  the  bankrupt's 
property,  if  brought  subsequently,  should  be  brought  in  a  court  of 
the  United  States  sitting  in  bankruptcy,  and  the  assignee  should 
be  made  a  party  to  it.  This  court  may  take  the  entire  adminis- 
tration of  the  bankrupt's  estate,  and  may  ascertain  and  liquidate 
all  liens  thereon,  and  for  this  purpose  may  restrain  the  holder  of 
a  mortgage  or  other  lien  from  proceeding  in  any  suit  to  enforce 
such  lien ;  and  it  is  generally  proper  for  the  coui't  to  do  so  when 
the  value  of  the  property  exceeds  the  amount  secured  by  the  lien, 
or  when  the  amount  or  validity  of  the  lien  is  in  doubt.^  A  mort- 
gagee or  trustee  under  a  deed  of  trust  will,  upon  the  application 
of  the  assignee,  be  enjoined  from  selling  under  a  power  of  sale.* 
If  the  foreclosure  suit  is  already  pending  in  a  state  court  at  the 
time  the  bankruptcy  proceedings  are  commenced,  it  may  be  al- 
lowed to  proceed  upon  making  the  assignee  a  party  to  it.  In  the 
case  of  a  voluntary  assignment  of  the  mortgaged  property  after 
the  commencement  of  a  suit  to  foreclose,  it  is  not  necessary  to 
bring  in  the  assignee  as  a  party  to  the  suit ;  but  if  the  assign- 
ment is  by  operation  of  law,  as  in  cases  of  bankruptcy  or  under 
the  insolvent  acts,  the  assignee  should  be  made  a  party  before  fur- 
ther proceedings  are  had.  If  he  is  not  made  a  party,  the  foreclos- 
ure is  of  no  effect  as  to  him,  and  his  equity  of  redemption  remains 
unimpaired.^ 

1  Eyster  v.  Gaff,  91  U.  S.  521  ;  Stout  v.  ^  Sedgwick  v.  Cleveland,  7  Paige,  287, 
Lye,  103  U.  S.  G6  ;  Sedgwick  v.  Grinnell,  9  290;  Anon.  10  Paige,  20  ;  Lowry  v.  Mor- 
Ben.  429.  rison,  11    Paige,  327;   Deas  v.   Thorne,  3 

2  Hatcher  v.  Jones,  53  Ga.  208.  Johns.    544 ;    Springer    v.   Vanderpool,    4 
^  Zh  re  Iron  Mountain  Co.  of  Lake  Cham-    Edw.   362;    Burnham    v.   De    Bevorse,    8 

plain,    5    Blatclif.    320;    In   re    Sacchi,    10  How.  Pr.  159;  Winslow  r.  Clark,  47  N.  Y. 

Blatchf.  29.  261,  263;  Russell  v.  Clark,  7  Cranch,  69; 

*  Dooley  v.  Va.  F.  Ins.  Co.  2   Hughes,  In  re  Wynne,  4  N.  Bank  R.  23 ;    Eyster  v. 

482.  Gaff,  2  Colo.  228,  239. 

186 


REMEDY   AS   AFFECTED   BY    BANKRUPTCY.       [§§  1234,  1235. 

1234.  If  the  bankruptcy  proceedings  are  pending  in  a  State 
other  than  that  in  which  the  mortgaged  property  is  located, 
although  the  bankruptcy  court  may  exercise  extra-territorial  juris- 
diction in  collecting  the  estate  and  adjusting  the  claims  of  creditors, 
yet  matters  affecting  the  real  estate  of  the  bankrupt  are  of  a  local 
character,  and  the  rights  of  parties  must  be  determined  by  the  local 
courts.  Therefore  it  is  held  that  a  suit  to  foreclose  a  mortgage 
on  the  bankrupt's  propert}^  situate  in  another  State,  may  be  com- 
menced after  he  is  adjudicated  a  bankrupt,  and  prosecuted  in  the 
State  where  the  land  is  situated.  The  mortgagee  is  entitled  to 
have  a  foreclosure  of  his  mortgage,  and,  as  he  cannot  have  any  rem- 
edy in  the  District  Court  of  the  United  States  in  which  the  bank- 
ruptcy proceedings  are  pending,  he  is  allowed  to  proceed  in  the 
courts  of  the  State  where  the  lands  are.  The  assignee  is  protected 
in  his  rights  by  being  made  a  party. ^ 

1235.  The  bankruptcy  court  may  order  a  sale  subject  to  the 
mortgage.  As  already  observed,  the  bankruptcy  court  may  allow 
the  mortgagee  to  foreclose  his  mortgage  in  the  usual  way  in  a  state 
court,  or  may  take  upon  itself  the  duty  of  ascertaining  and  enforcing 
the  lien  by  a  sale  of  the  mortgaged  property.  It  may  also  have  the 
mortgaged  premises  sold  subject  to  the  lien,  and  leave  the  mort- 
gagee to  proceed  to  a  foreclosure  against  the  purchaser ;  or  it  may 
direct  a  release  of  the  mortgaged  premises  to  the  mortgagee  in  sat- 
isfaction of  the  debt.2 

If  the  mortgagee  goes  into  the  bankruptcy  court,  that  court  must 
take  possession  of  the  mortgaged  property  and  sell  it  ;  and  in  that 
case  this  court  must  determine  the  order  of  priority  of  different 
liens  upon  the  property,  and  the  rights  of  the  mortgagor  under 
any  claims  he  may  set  up,  as,  for  instance,  his  right  to  a  home- 
stead exemption.  When  the  homestead  of  the  debtor  has  been 
sold  as  a  part  of  the  mortgaged  property,  the  court  has  jurisdic- 
tion to  order  the  bankrupt  to  deliver  possession  to  the  purchaser 
upon  the  bankrupt's  refusal  to  surrender  the  property  to  the  pur- 
chaser.2 

The  District  Court  in  bankruptcy  has  no  jurisdiction  of  a  sum- 
mary petition  by  a  mortgagee  against  the  assignee  to  order  a  sale 
of  the  property  when  it  appears  that  the  title  of  the  applicant  **  is 
in  dispute,  or  that  the  estate  is  in  the  actual  possession  of  a  third 

1  Whitridge  v.  Taylor,  66  N.  C.  273.  In  Rep.  539 ;  Broach  v.  Powell,  79  Ga.  79,  3 
this  case  the  assignee  accepted  service  and    S.  E.  Rep.  763. 

was  willing  the  case  should  proceed.  ^  In    re   Belts,   4   Dill.    93,  7    Reporter, 

2  In  re  Ellerhorst,  2  Sawyer,  219.     And    522. 

see  Clifton  v.  Foster,  103  Mass.  233,  4  Am.        *  In  re  Casey,  10  Blatchf.  376. 

187 


§  1236.]  REMEDIES  FOR   ENFORCING   A   MORTGAGE. 

person  claiming  title ;  as,  for  instance,  when  it  is  in  the  possession 
of  receivers  appointed  by  a  state  court.^ 

1236.  If  a  mortgagee  desires  to  prove  his  claim  against  the 
mortgagor's  estate  in  bankruptcy,  he  may  release  his  security  to 
the  assignee  and  prove  for  the  whole  of  his  claim  ;  or  he  may  have 
the  property  sold  nnder  direction  of  the  bankruptcy  court,  and 
prove  for  any  balance  of  his  claim  remaining  unsatisfied  ;  or  he 
may  instead  have  his  security  valued,  and  prove  for  the  balance  after 
deducting  the  value  of  the  property .^  But  the  mortgagee  need 
not  take  either  of  these  courses.  He  may  rest  upon  his  security,  in 
which  case  the  discharge  of  the  bankrupt  mortgagor  constitutes  no 
defence  to  a  subsequent  action  to  foreclose  the  mortgage,^  so  far  as 
the  mortgaged  property  is  concerned,  but  would  be  a  bar  to  any 
personal  judgment  against  the  bankrupt. 

The  fact  that  the  mortgagee  has  proved  his  claim  in  bankruptcy 
does  not  prevent  his  foreclosing  his  moi-tgage  in  a  state  court  upon 
leave  granted  by  the  bankruptcy  court.^ 

In  Illinois,  where  foreclosure  may  be  had  by  scire  facias,  the 
recovery  of  a  judgment  in  such  suit  is  no  defence  to  a  bill  in  equity 
to  foreclose  the  same  mortgage.^  The  mortgagee  may  use  both 
these  remedies  and  all  others  as  well,  but  of  course  can  have  but 
one  satisfaction. 

^  Bradley  v.  Healey,  1  Holmes,  451,  and  rupt  Act  is  equally  applicable  to  remedies 

cases  cited;  Knight  v.  Cheney,  5  N.  Bank,  as  affected  by  the  insolvent  acts  of  the  sev- 

E.  305.     And  see  Hayes   v.  Dickinson,  9  eral  States,  under  which  there  are  very  few 

Hun,  277  ;  Smith  v.  Mason,  Wall.  419.  reported  decisions. 

-  Bankrupt  Act,  §  1075.  The  proof  of  the  debt   as  unsecured  is 

Although   the   United   States  Bankrupt  not  a  waiver  of  a  mortgage  given  to  secure 

Act  has  been  repealed,  the  sections  of  this  it  by  a  person   other   than   the   bankrupt. 

work  relating  to  remedies  upon  mortgages  National  Bank  v.  Wood,  53  Vt.  491. 

as  affected  by  that  act  have  been  retained  ^  Pierce  v.  Wilcox,  40  Ind.  70 ;  Wicks  v. 

in  the  present  edition,  not  only  because  they  Perkins,  1  Woods,  383  ;  Price  v.  Amis,  58 

are  of  use  in  determining  rights  under  past  Ga.  604. 

proceedings,  but  because  they  still  apply  to  *  Societe   D'Epargnes    v.   McHenry,   49 

unfinished  proceedings  under  this  act;  and  Cal.  351. 

because,  moreover,  much  of  what  has  been  ^  Erickson  v.  Rafferty,  79  111.  209. 

said  about  remedies  as  affected  by  the  Bank- 

188 


CHAPTER   XXVIII. 


FORECLOSURE   BY   ENTRY   AND   POSSESSION. 


I.  Nature  of  the  remedy,  1237,  1238. 
II.  Statutory  provisions,  1239-1245. 

III.  The  entry,  1246-1257. 

IV.  The  possession,  1258. 

V.  The  certificate  of  witnesses,  1259, 1260. 
VI.  The  certificate  of  the  mortgagor,  1261. 


VII.  When    the     limitation    commences, 

1262. 
VIII.  Record  of  the  certificate,  1263. 
IX.  Effect   of  the  foreclosure  upon  the 

mortgage  debt,  1264. 
X.  Waiver   of    entry    and    foreclosure, 
1265. 


I.  Nature  of  the  Remedy. 

1237.  Foreclosure  by  means  of  the  mortgagee's  entering 
upon  the  premises  and  holding  them  for  a  limited  time  seems  to 
follow  naturally  from  the  principle  established  in  equity,  that  after 
forfeiture  of  the  condition,  although  the  mortgagee  may  enter,  yet 
the  mortgagor  shall  be  allowed  within  a  reasonable  time  to  redeem.^ 
The  entry  serves  to  give  notice  to  the  mortgagor  that  his  right  of 
redemption  will  be  lost  unless  he  discharges  the  obligations  of  his 
deed.  The  mortgagee  immediately  receives  the  rents  and  profits, 
which,  as  part  of  his  security,  should  go  to  him  after  the  mortga- 
gor's default.  This  default  continuing,  the  property  is  applied  to 
the  discharge  of  the  debt  by  becoming  the  absolute  estate  of  the 
mortgagee.  The  length  of  possession  generally  required  to  perfect 
the  mortgagee's  title  to  the  property  makes  the  remedy  a  slow  one 
for  obtaining  money  in  discharge  of  a  mortgage  debt.  But  the 
remedy  is  inexpensive,  and  is  ready  at  hand  to  be  applied  by  the 
mortgagee  himself,  while  the  mortgagor  cannot  complain  that  it  is 
an  oppressive  one. 

1238.  Where  used.  —  This  mode  of  foreclosure  is  in  use  in 
Maine,  New  Hampshire,  Massachusetts,  and  Rhode  Island,  and  is 
the  usual  remedy  in  these  States  to  secure  the  discharge  of  the 
mortgage  out  of  the  property,  except  in  case  of  power  of  sale  mort- 
gages, which,  by  reason  of  the  promptness  of  the  remedy  afforded 
by  them,  have  of  late  come  into  very  general  use.  The  statutory 
provisions  of  these  States  in  respect  to  the  entry  and  the  evidence 
of  possession,  though  similar,  are  in  important  details  unlike,  and 

1  For  the  mode  of  obtaining  possession  by  process  of  law,  see  §§  1276-1316. 

189 


§§  1239,  1240.]      FORECLOSURE   BY   ENTRY   AND   POSSESSION. 

therefore  a  brief  statement  will  be  made  of  these  provisions  ;  but 
the  general  rules  governing  the  subject,  being  of  universal  appli- 
cation, will  be  stated  under  the  general  divisions  of  the  following 
sections. 

II.  Statutory  Provisions. 

1239.  In  Maine  ^  the  mortgagee  may  obtain  possession  for  the 
purpose  of  foreclosure,  either  by  process  of  law  or  by  entering 
peaceably  and  openl}^  if  not  opposed,  in  the  presence  of  two  wit- 
nesses, whose  certificate  of  the  fact  and  time  of  such  entry,  signed 
and  sworn  to  by  them  before  a  justice  of  the  peace,  must  be  re- 
corded in  the  registry  of  deeds,  where  the  mortgage  should  be  re- 
corded, within  thirty  days  after  the  entry  is  made  ;  entry  may  also 
be  made  with  the  consent  in  writing  of  the  mortgagor  or  other 
owner,  in  which  case  such  consent  must  be  recorded  in  the  same 
manner  as  the  certificate,  of  witnesses.  Possession  obtained  in 
either  of  these  modes  and  continued  for  the  three  following  years 
forecloses  the  right  of  redemption.  The  mortgagor  and  mortgagee 
may,  however,  in  the  mortgage  agree  upon  a  less  time,  but  not 
less  than  one  year,  in  which  the  mortgage  shall  be  foreclosed.^  The 
entry  must  be  actual  though  made  with  consent.^ 

1240.  Foreclosure  by  advertisement.  —  Another  mode  of  fore- 
closure without  entry,  but  based  on  the  same  principle  of  notice 
to  the  mortgagor,  is  provided  for  in  JNIaine.  The  mortgagee  gives 
public  notice  in  a  newspaper  published  and  printed  in  whole  or 
in  part  in  the  county  where  the  premises  are  situated,^  if  any,  or,  if 
not,  in  the  state  paper,  three  weeks  successively,  of  his  claim  by 
mortgage,  describing  the  premises  intelligibly,^  naming  the  date   of 

1  R.  S.  1883,  ch.  90,  §§  3-6.  Mortgages  be  inserted  in  the  notice  of  foreclosure, 
of  real  and  personal  property  may  be  fore-    Stowe  v.  Merrill,  77  Me.  550. 

closed  in  equity.  Laws  1891,  ch.  91 ;  Reed  ^  Jones  v.  Bowler,  74  Me.  310. 
v.  Reed,  75  Me.  264.  Although  the  Revised  *  Welch  w.  Stearns,  74  Me.  71.  A  fore- 
Statutes,  ch.  96,  in  terms  authorized  the  closure  is  fatally  defective  if  the  certificate 
Supreme  Court  to  take  cognizance,  as  a  recites  that  the  notice  was  given  in  a  news- 
court  of  equity,  of  "suits  for  the  redemp-  paper  "published,"  instead  of  "printed," 
tion  and  foreclosure  of  mortgaged  estates,"  in  the  county  where  the  premises  are  situ- 
it  was  held  that  the  specific  provisions  of  ated.  Hollis  v.  HoUis,  84  Me.  96,  24  Atl. 
the  statute  for  the  foreclosure  of  mortgages  Rep.  581;  Blake  v.  Dennett,  49  Me.  102; 
precluded  any  jurisdiction  in  equity,  and  Bragdon  v.  Hatch,  77  Me.  433,  1  Atl.  Rep. 
that  the  language  of  the  statute  quoted  as  140. 

to  foreclosure  in  equity  was  inadvertently  ^  xhe  description  should  be  sufficient  to 

used.     Chase  v.  Palmer,  25  Me.  341.  enable  those  interested  in  the  premises  to 

2  Such  agreement  inserted  in  a  mortgage  identify  them  with  reasonable  certainty, 
binds  the  mortgagee  without  his  signature  On  this  ground  the  following  was  held  in- 
to the  mortgage.     Such  agreement  need  not  sufficient:  "On  the  22d  day  of  June,  1850, 

Lewis  Dela,  of  Portland,  mortgaged  to  the 

190 


STATUTORY   PROVISIONS.  [§  1240. 

the  mortgage,  and  stating  that  the  condition  of  it  is  broken,  by  rea- 
son whereof  he  claims  foreclosure  ;  ^  a  copy  of  this  printed  notice, 
with  the  name  and  date  of  the  newspaper  in  which  it  was  last  pub- 
lished, is  recorded  in  each  registry  of  deeds  in  which  the  mortgage 
is  or  ought  to  be  recorded,  within  thirty  days  after  the  last  publi- 
cation of  it.2  Instead  of  such  publication  an  attested  copy  of  the 
notice  may  be  served  on  the  mortgagor  or  his  assignee,  if  in  the 
State,  by  the  sheriff  or  his  deputy,  by  delivering  it  to  him  in  hand 
or  leaving  it  at  his  place  of  last  and  usual  abode,  when  the  notice 
with  the  sheriff's  return  is  recorded  within  thirty  days  after  ser- 
vice ;  and  in  all  cases  the  certificate  of  the  register  of  deeds  is  |?r»n(^ 
facie  evidence  of  the  fact  of  such  entry,  notice,  publication  of  fore- 
closure, and  of  the  sheriff's  return. ^ 

If  the  premises  are  not  redeemed  within  three  years  after  the 
first  publication  or  the  service  of  notice,  or  within  such  time,  not 
less  than  one  year,  as  the  parties  have  agreed  upon,  after  the  first 
publication,  or  after  the  service  of  the  notice,  the  right  of  redemp- 
tion is  foreclosed.* 

Under  this  statute,  notice  by  a  mortgagee  after  he  has  assigned 
his  mortgage  is  ineffectual.'^  It  should  then  be  given  by  the  as- 
signee. Notice  by  the  assignee  to  be  effectual  must  be  given  after 
his  assignment  has  been  recorded  ;  if  the  notice  be  given  before 
the  assignment  is  recorded,  and  the  person  entitled  to  redeem  has  no 
actual  notice  of  the  assignment,  the  mortgage  will  not  be  foreclosed 
at  the  expiration  of  three  years  from  the  time  of  publication.*'  The 
mortgage  without  the  record  of    the    assignment    is  notice  to  the 

undersigned   certain   property   particularly  notice  published  in  three  successive  weekly 

described  in  the  deed  situated  at  the  corner  issues   of  a  newspaper,  and   recorded   the 

of   Fore   and   India   streets,  in   this  city."  next  day  after  the  last  publication,  is  a  coin- 

Dela  V.  Stanwood,  61  Me.  51.  pliance  with  the  statute.     Wilson  r.  Page, 

1  A  notice  stating  that  "the  condition  76  Me.  279;  Stowe  v.  Merrill,  77  Me.  .550. 
had  been  broken,  and  now  the  mortgagees  Evidence  that  a  notice  was  given  in  a 
give  notice  of  the  same,  and  that  they  claim  a  newspaper  "published"  in  the  county  is 
foreclosure  of  said  mortgage,"  is  sufficient,  not  evidence  of  a  notice  in  a  newspaper 
It  may  be  inferred,  though  not  declared,  "printed"  in  a  county.  Bragdon  y  Hatch, 
that  the  foreclosure  is  claimed  by  reason  of  77  Me.  433. 

the  breach  of  condition.     Pearce  v.  Savage,  It  must  appear  that  the  notice  was  in  a 

45  Mo.  90.     A  misnomer  contained  in  a  re-  "  newspaper  printed  in  the  county."     Blake 

cital  of  the  deed  excepting  a  small  portion  v.  Dennett,  49  Me.  102. 

of  the  premises,  and  repeated  in  a  notice  of  3  'pije  certificate  of  the  mortgagee  is  not 

foreclosure,  does  not  invalidate  the  notice,  sufficient  evidence   of    publication    of    the 

Wilson  V.  Page,  76  Me.  279.  notice.     Bragdon  v.  Hatch,  77  Me.  433. 

2  It  is  essential  that  the  "date  of  the  *  R.  S.  1883,  ch.  90,  §§  5,  6 ;  Acts  1893, 
newspaper   in   which   the   notice   was   last  ch.  168. 

published  "  should  be  recorded.     HoUis  v.        ^  Gushing  v.  Ayer,  25  Me.  383. 
liollis,  84    Me.   96,  24  Atl.  Rep.  581.     A        G  Reed  v.  Elweli,  46  Me.  270. 

191 


§§  1241,  1242.]      FORECLOSURE   BY   ENTRY   AND   POSSESSION. 

owner  of  the  equity  that  the  title  is  in  the  mortgagee,  and  he  may 
act  upon  this  assumption,  and  disregard  all  claims  by  other  per- 
sons ;  ^  whether,  by  a  subsequent  record  of  the  assignment,  the  fore- 
closure would  be  complete  in  three  years  from  the  time  of  record,  is 
questionable.^  The  notice  must  describe  the  premises  so  intelligibly 
that  those  entitled  to  redeem  may  know  with  reasonable  certainty 
what  premises  are  intended.^  The  publication  of  it  is  no  bar  to  a 
subsequent  writ  of  entry  to  foreclose  the  mortgage  ;  *  and  it  would 
seem  to  be  no  bar  to  an  open  and  peaceable  entry  by  the  mortgagee 
for  this  purpose. 

1241.  In  New  Hampshire  ^  a  mortgage  may  be  foreclosed  by 
peaceable  entry,  and  continued  actual  peaceable  possession  for  the 
space  of  one  year,^  and  by  publishing  in  some  newspaper  printed 
in  the  same  county,  if  any  there  be,  otherwise  in  some  newspaper 
printed  in  some  adjoining  county,  three  weeks  successively,  a  notice 
stating  the  time  at  which  such  possession  for  condition  broken  com- 
menced, the  object  of  the  possession,  the  name  of  the  mortgagor  and 
mortgagee,  the  date  of  the  mortgage,  and  a  description  of  the  prem- 
ises, the  first  publication  to  be  six  months  at  least  before  such  right 
to  redeem  would  be  foreclosed. 

1242.  Foreclosure  may  also  be  effected  by  a  mortgagee  al- 
ready in  possession  of  the  mortgaged  premises  b}'  publishing  in 
some  newspaper  printed  in  the  same  count}^  if  any  there  be,  other- 
wise in  some  newspaper  printed  in  an  adjoining  county,  thi*ee  weeks 
successively,  a  notice  stating  that  from  and  after  a  certain  day,  which 
shall  be  specified  in  the  notice,  and  not  more  than  four  weeks  from 

1  Mitchell  V.  Burnham,  44  Me.  286.  the  whole  of  the  same  year.    Bartlett  v.  San- 

2  Reed  v.  Elwell,  46  Me.  270.  born,  64  N.  H.  70.     Doe,  C.  J.,  said  :  "  The 

3  Chase  v.  McLellan,  49  Me.  375.  meaning  of  our  statute,  settled  by  practice 
*  Concord  Union    Mut.  F.   Ins.     Co.  v.    and  general  understanding,  does  not  sustain 

Woodbury,  45  Me.  447.    And  see   Stewart  the  sufficiency  of  the  fictitious  and  presumed 

V.  Davis,  63  Me.  539.  possession  in  this  case.     For  some  purposes, 

°  P.  S.  1891,  ch.  139,  §  14.     Entry  may  possession  held  by  the  mortgagor,  or  any  one 

also  be  made  by  process  of  law,  in  which  claiming  under  him  by  title  subsequent  to 

case  no  publication  of  notice  is  necessary,  the  mortgage,  is  presumed  to  be  in  subordi- 

and   foreclosure   is   complete   after  a   con-  nation  to  the  mortgage,  and   not  adverse, 

tinued    actual    possession    for    one    year.  Howard   v.   Hildreth,   18  N.  H.   105,  107; 

§  1278.     Foreclosure  may  also  be  had  by  a  Tripe  v.  Marcy,  39  N.  H.  439  ;  Hodgdon  v. 

bill  in  equity,  which  is  the  mode  to  be  pre-  Shannon,  44  N.  H.  572, 578 ;  Bellows  v.  Rail- 

ferred  when  the  matters  between  the  parties  road,  59  N.  H.  491,  492.     But  the  presump- 

are  complicated.     Aiken  v.  Gale,  37  N.  H.  tion  is  not  conclusive  for  all  purposes." 

501,  510.  If  the  lot  be  wild  and  unoccupied,  all  the 

6  The  mortgagee's  possession  must  be  ac-  possession  for  foreclosure  that  is  practicable 

tual.     His  possession  is  constructive  and  not  is  a  compliance  with  the  statute.     Green  v. 

actual  if  the  mortgagor's  second  grantee  be  Cross,  cited  in  Green  v.  Fettiugill,  47  N.  H. 

in  actual  and  exclusive  possession  during  375,  379. 

192 


STATUTORY    PROVISIONS.  [§  1248. 

and  after  the  last  day  of  publication,  such  possession  of  the  prem- 
ises will  be  held  for  the  purpose  of  foreclosing  the  right  of  the  mort- 
gagor and  all  persons  claiming  under  him  to  redeem  the  same, 
for  condition  broken,  —  stating  the  name  of  the  mortgagor  and  of 
the  mortgagee,  the  date  of  the  mortgage,  and  a  description  of  the 
premises  ;  and  by  retaining  actual  peaceable  possession  of  the  prem- 
ises for  one  year  from  and  after  the  day  specified  in  the  printed 
notice. 

The  aflfidavit  of  the  party  making  an  entry,  and  of  the  witnesses 
to  it,  as  to  the  time,  manner,  and  purpose  of  said  entry,  and  a  copy 
of  the  published  notice,  verified  by  afiidavit  as  to  the  time,  place, 
and  mode  of  publication,  recorded  in  the  registry  of  deeds  for  the 
county  in  which  the  lands  lie,  are  evidence  of  the  entry,  possession, 
and  publication.^ 

1243.  The  provisions  of  the  statute  must  be  strictly  fol- 
lowed in  order  to  effect  a  change  of  title  bj'  foreclosure,  and  the 
proof  that  these  provisions  have  been  followed  must  be  such  as 
the  statute  makes  competent.  The  affidavit  of  one  witness  to  the 
entr}',^  without  the  affidavit  of  the  party  making  the  entry,  is 
not  evidence  of  the  entry.  When  a  copy  of  the  published  notice, 
verified  by  affidavits  properly  recorded,  is  introduced  in  evidence, 
it  is  not  necessary  to  produce  the  original  notice,  or  the  papers  in 
which  it  was  published.'^  It  is  not  necessary  that  knowledge  of 
the  published  notice  should  be  brought  home  to  the  party  inter- 
ested."* Even  notice  of  the  mortgagee's  entry  and  possession,  under 
the  statute  requiring  publication  of  notice,  is  insufficient  without 
publication.^  The  published  notice  must  show  that  possession  was 
taken  for  condition  broken,  and  that  the  object  of  such  possession  is 
to  foreclose  the  mortgage.^  A  mistake  in  the  notice  that  the  entry 
was  for  the  purpose  of  foreclosing  "  the  right  in  equity  of  the  mort- 
gagee "  is  fatal,  as  it  is  liable  to  mislead,  and  the  statute  must  be 
strictly  pursued."     The  acknowledgment    in  writing   by  the  mort- 

1  P.  S.  1891,  ch.  139,  §  16.     The  record  ^  Ashuelot  R.  R.  Co.  v.  Elliot,  52  N.  H. 

of  the  affiJavits  is  not  a  part  of  the  process  387;  Demiiig  v.  Comings,  11    N.    H.   474, 

of  foreclosure,  but  only  a  mode  of  preserv-  484. 

ing  the  evidence  of  it.     Thompson  i\  Ela,  ^  Green   v.   Davis,   44   N.  H.   71.     The 

58  N.  H.  490.  notice   merely   stated   that   on   August   5, 

-  Wendell  v.  Abbott,  43  N.  H.  68.      And  1856,  the  mortgagee  took  quiet  possession 

see  Storer  u.  Little,  41  Me.  69.  of  the  premises  by  entering  on  the  same, 

^  Farrar  v.  Fessenden,  39  N.  H.  268.  and  therefore  claims  a  foreclosure   of  the 

*  Howard  v.  Handy,  35  N.  H.  315,  323,  mortgage  for  condition  broken. 

375.  ^  Abbot  v.  Banfield,  43  N.  H.  152,  155. 

VOL.  II.                 13  193 


§  1244.]  FORECLOSURE   BY   ENTRY   AND   POSSESSION. 

gagor  of  the  mortgagee's  entry  and  possession   is  not  evidence   of 
actual  possession  or  of  a  foreclosure,  as  against  a  stranger.^ 

1244.  In  Massachusetts  ^  the  morto:a£cee  after  breach  of  the 
condition  may  recover  possession  by  action,  or  may  make  an  open 
and  peaceable  entry  on  the  mortgtiged  premises ;  and  such  pos- 
session continued  peaceably  for  three  years  forever  forecloses  the 
light  of  redemption.  To  make  such  entry  effectual,  a  certificate 
in  proof  thereof  must  be  made  on  the  mortgage  deed  and  signed 
by  the  mortgagor  or  the  person  claiming  under  him  ;  or  a  certifi- 
cate of  two  competent  witnesses  to  prove  the  entry  must  be  made 
and  sworn  to  before  a  justice  of  the  peace;  and  such  certificate 
must  within  thirty  days  after  the  entry  be  recorded.^  Prior  to 
the  statute  of  1785  an}^  peaceable  entry  made  by  the  mortgagee, 
by  himself,  without  the  presence  of  witnesses  and  without  process 
of  law,  was  suflficient,  provided  an  actual  entry  was  made  for  the 
purpose  of  foreclosure,'^  followed  by  open  and  continued  posses- 
sion. The  statute  of  1785,  and  the  subsequent  one  of  1798,  made 
no  provision  for  the  recording  of  a  certificate  of  entrj^  and  it  was 
necessary  either  that  the  mortgagor  should  have  actual  notice  of 
the  entry  or  that  possession  should  be  continued.  The  record  of 
a  memorandum  of  the  entry  availed  nothing  ;  actual  notice  only 
would  supply  the  want  of  peaceable  possession;^  although  an  en- 
tr}'^  in  the  presence  of  witnesses  was  one  of  the  prescribed  modes 
of  foreclosing,  there  was  no  provision  made  for  taking  or  preserv- 
ing the  evidence.  Under  these  statutes  the  fact  of  entry,  which 
constituted  the  commencement  of  the  time  of  foreclosure,  could 
be  proved  by  any  competent  evidence.  The  testimony  of  the  wit- 
nesses of  the  entry  to  the  fact  and  purpose  of  it  was  the  proof 
ordinarily  made.^  Although  no  certificate  by  them  was  required, 
yet  it  was  the  common  practice  to  take  such  a  certificate,  as  a 
means  of    preserving  the    evidence,   which,   in    the  lapse  of    time, 

1  Worster  v.  Great  Falls  Manuf.  Co.  41         3  p,  g_  i882,  ch.  181,  §§  1,  2. 

N.  H.  16.  4  Whitney  v.  Guild,  11  Gray,  496  ;  New- 

2  The  Supreme  Judicial  Court  has  juris-  all  v.  Wright,  3  Mass.  138,  3  Am.  Dec.  98; 
diction  in  equity  to  foreclose  mortgages.  Boyd  ij.  Shaw,  14  Me.  58.  Statute  of  1 78.5, 
P.  S.  1882,  ch.  150,  §  2.  But  this  jiirisdic-  ch.  22,  §  2,  provided  that  the  mortgagor 
tion  is  limited  to  cases  where  there  is  not  might  redeem,  "  unless  the  mortgagee  or 
a  plain,  adequate,  and  complete  remedy  at  person  claiming  under  him  hath,  by  process 
the  common  law;  and  consequently  fore-  of  law,  or  by  open  and  peaceable  entry 
closure  in  equil;y  can  seldom  be  had.  A  made  in  the  presence  of  two  witnesses,  taken 
mortgage  of  a  railroad  franchise,  and  prop-  actual  possession  thereof,  and  continued  that 
ei  ty  incidental  to  its  exercise,  is  within  the  possession  peaceably  three  years." 

equity  jurisdiction  of  the  court,  the  remedy        ''  Tiiayery.  Smith,  17  Mass.  429  ;  Skinner 

at  law  being  inadequate.     Shaw  c.  Norfolk    v.  Brewer,  4  Pick.  468. 

Co.  11.  K.  Co.  5  Grav,  162.  o  Gordon  v.  Lewis,  1  Sumn.  525. 

194 


STATUTORY   PROVISIONS.  [§  1244. 

would  be  apt  to  pass  out  of  the  memory  of  the  witnesses.  Such 
certificate  verified  by  the  witnesses  was  competent  evidence ;  and 
although  they  might  not  be  able  to  recall  the  facts  stated  in  the 
certificate,  their  testimony  that  they  signed  the  certificate,  and 
that  they  should  not  have  put  their  names  to  it  except  to  certify 
their  knowledge  of  the  facts  stated,  was  held  to  be  a  sufficient  veri- 
fication.^ 

An  entry  by  the  mortgagee  upon  condition  broken  was  presumed 
to  be  for  the  purpose  of  foreclosure,  unless  the  contrary  appeared ;  ^ 
but  no  such  presumption  followed  an  entry  before  condition  broken  ;  ^ 
and  if  the  possession  was  commenced  before  condition  broken  and 
continued  afterwards,  either  actual  or  constructive  notice  to  the 
mortgagor  of  the  purpose  of  the  mortgagee  to  hold  for  a  foreclosure 
was  necessary  in  order  to  constitute  a  commencement  of  the  limi- 
tation of  the  right  to  redeem.*  If  the  mortgagee  entered  under  a 
lease  or  by  other  lawful  means,  and  afterwards  undertook  to  hold  as 
mortgagee  for  the  purpose  of  foreclosure,  it  was  held  that  he  must 
give  notice  of  his  intention  to  the  party  entitled  to  redeem,  in  order 
that  the  latter  might  know  when  the  limitation  of  his  right  to  re- 
deem began.'^ 

The  object  of  the  open  and  peaceable  entry,  and  of  the  continued 
possession  under  it,  was  to  give  the  mortgagor  such  notice  that  he 
might  know  when  commenced  the  limitation  of  the  three  years, 
beyond  which  his  right  of  redemption  would  cease. 

Notice  to  the  mortgagor  being  the  material  thing,  it  was  no  objec- 
tion, after  an  open  and  peaceable  entry  such  as  would  necessarily 
give  him  actual  notice  had  once  been  made,  that  the  possession 
was  not  continued  by  the  mortgagee  personally.  He  might  occupy 
by  a  tenant,  and  as  his  tenant  the  mortgagor  might  remain  in 
possession.^ 

These  decisions  under  the  statutes  in  force  before  the  Revised 
Statutes  of  1836  introduced  the  system  of  giving  notice  of  the  entry 
by  requiring  a  record  of  the  certificate,  though  not  directly  applicable 
now,  yet  serve  to  illustrate  the  force  and  effect  of  the  present  law, 
which,  being  generally  the  same  in  the  several  States  in  which  this 
mode  of  foreclosure  prevails,  will  be  stated  under  the  appropriate 
divisions  of  the  subject  in  subsequent  sections. 

1  Crittenden  v.  Rogers,  8  Gray,  452;  Am.  Dec.  71;  Pomeroy  v.  Winship,  12 
Smith  V.  Johns,  3  Gray,  .517.  Mass.  514,  7  Am.  Dec.  91. 

2  Taylor  v.  Weld,  5  Mass.  109,  121  ;  Had-        *  Scott  v.  McFarland,  13  Mass.  309. 
ley  V.   Houghton,   7  Pick.  29;  Skinner   v.        ^  Ayres  r.  Waite,  10  Gush.  72. 
Brewer,  4  Pick.  468.  6  Hadley  v.  Houghton,  7  Pick.  29. 

3  Erskine   v.   Townsend,  2  Mass.  493,  3 

195 


§§  1245-1247.]      FORECLOSURE   BY   ENTRY   AND   POSSESSION. 

1245.  In  Rhode  Island^  the  right  of  redemption  is  barred  unless 
payment  of  the  debt  and  interest  is  made  within  three  years  next 
after  the  mortgagee  or  other  person  claiming  under  him,  either  by 
process  of  law,^  or  by  peaceable  and  open  entry  made  in  the  pres- 
ence of  two  witnesses,  has  taken  actual  possession  of  the  mortgaged 
estate,  and  continued  the  same  during  said  term.  When  possession 
is  taken  in  the  presence  of  witnesses,  they  must  give  a  certificate  of 
such  possession  being  taken  ;  and  the  person  delivering  possession 
must  acknowledge  before  a  justice  of  the  peace  within  the  town 
where  the  estate  lies  that  the  same  was  voluntarily  done,  which  cer- 
tificate and  acknowledgment  must  be  recorded  in  the  office  of  the 
town  clerk  of  such  town.^ 

The  possession  must  be  continued  "  during  said  term."  It  must 
be  accompanied  throughout  by  a  right  on  the  part  of  the  mortgagor 
to  redeem,  and  to  maintain  a  bill  for  that  purpose.  But  after  the 
owner  of  the  equity  of  redemption  has  surrendered  possession,  an 
absolute  conveyance  by  him  to  a  third  person  of  a  portion  of  the 
premises  is  not  such  an  interruption  of  possession  as  will  prevent 
the  completion  of  the  foreclosure  in  three  years  from  the  entry. ^ 

III.    The  Entry. 

1246.  In  general.  —  As  already  stated,  under  the  earlier  laws 
open  and  visible  entry  in  the  presence  of  witnesses  was  solely  for  the 
purpose  of  giving  notice  to  the  mortgagor  that  his  right  of  redeeming 
would  be  gone  in  three  years.  The  entry,  like  a  judgment,  fixed 
the  time  from  which  the  three  years  began  to  run,  and  at  the  same 
time  gave  notice  of  it.  After  the  adoption  of  the  system  of  certify- 
ing and  recording  the  entry,  the  registration  of  the  certificate  became 
full  constructive  notice  to  all  persons  of  the  fact  and  date  of  the 
entry,  of  the  cause  and  the  purpose  of  it.  The  entry  and  possession 
under  it  thus  became  of  much  less  consequence  than  the  certificate, 
which,  being  properly  made  and  recorded,  effects  the  foreclosure. 

1247.  The  entry  should  be  made  by  the  person  holding  the 
legal  title  to  the  mortgage  or  by  his  authorized  agent.  An  entry 
made  by  an  agent  of  the  mortgagee  without  express  authority  may 
be  subsequently  ratified  by  him  and  made  effectual.  Where,  after 
an  entry  by  an  attorney  claiming  to  act  for  the  mortgagee,  the  latter 
paid  taxes  on  the  premises  assessed  in  his  name,  and  he  and  his  heirs 

1  Foreclosure  may  be  had  also  by  a  bill        3  P.  S.  ch.  176,  §§  4,  5. 
in  equity.     P.  S.  ch.  176,  §  14.  *  Daniels  v.  Mowry,  1  R.  I.  151. 

-  This  is  ejectment,  or  trespass  and  eject- 
ment.   See  chapter  xxix. 

196 


THE   ENTRY.  [§§  1248,  1249. 

claimed  to  be  and  were  generally  recognized  as  the  owners,  and  it 
appeared  that  the  attorney  had  the  mortgage  in  his  possession  at  the 
time  of  the  entry,  it  was  held  that  these  facts  were  sufficient  evi- 
dence, nearly  forty  years  having  elapsed,  of  the  attorney's  authority 
to  make  the  entry. ^  An  entry  made  by  an  attorney  or  officer  of  a 
corporation  without  legal  authority  may  be  made  the  act  of  the  cor- 
poration by  express  ratification,  or  by  a  recital  of  it  in  a  subsequent 
agreement  or  deed  executed  by  the  corporation  to  the  owner  of  the 
equity .2  A  person  holding  two  mortgages  upon  the  same  land  may 
enter  under  the  first ;  his  possession  is  under  that  only,  and  redemp- 
tion may  be  had  from  that  without  redeeming  from  the  second.^ 

1248.  Upon  the  death  of  the  mortgagee,  the  entry  should  be 
made  by  his  executor  or  administrator.*  His  heirs  at  law  cannot 
make  an  effectual  entry,  as  the  mortgage  is  personal  assets  and  goes 
to  the  personal  representative.  The  mortgagor's  right  to  redeem 
remains  unaffected  by  such  an  entry,  unless  possession  under  it  be 
continued  so  long  that  the  statute  of  limitations  may  be  pleaded  in 
favor  of  the  right  to  i-edeem.^  After  the  foreclosure  is  complete,  the 
legal  estate  vests  in  the  heirs,  subject,  like  other  real  estate  of  the 
deceased,  to  be  used  for  the  purposes  of  administration  ;  but  until 
the  title  is  thus  made  complete  in  the  heirs,  they  can  do  nothing 
with  the  mortgage  or  with  the  premises  covered  by  it. 

Although  a  mortgagee  cannot  make  an  effectual  entry  after  he 
has  assigned  all  his  interest  in  the  mortgaged  premises,  even  if  he 
remains  in  possession,^  yet,  after  he  has  quitclaimed  to  a  third  person 
his  interest  in  a  portion  of  them,  his  entry  is  sufficient  to  foreclose 
the  mortgage  as  to  all  the  premises  covered  by  it,  even  that  portion 
in  the  possession  of  his  grantee.'^ 

1249.  It  is  the  mortgagee's  right  to  foreclose  the  whole  estate 
embraced  in  the  mortgage;  but  where  the  owner  of  the  equity  has 
conveyed  a  part,  there  may  be  a  possession  and  foreclosure  of  the 
part  not  conveyed,  though  nothing  be  done  to  foreclose  the  rest,  and 
the  mortgage  will  be  paid  to  the  extent  of  the  value  of  the  land 
taken .^  A  mortgagor,  however,  cannot  under  any  circumstances,  ex- 
cept with  the  consent  of  the  holder  of  the  mortgage,  have  a  part  of 
the  mortgaged  premises  estimated  in  payment  of  his  debt ;  and  it 

1  Barnes  v.  Boardman,  149  Mass.  106,  21  Cheney,  14  Pick.  399,  404  ;  Smith  v.  Dyer, 
N.  E.  Rep.  308.  16  Mass.  18. 

2  Cutts  V.  York  Manuf.  Co.  18  Me.  190.  ^  Sisson  v.  Tate,  109  Mass.  330;  Call  v. 

3  Gerrish  v.  Black,  122  Mass.  76.       ^  Leisner,  23  Me.  25. 

*  Gibson  V.  Bailey,  9  N.  H.  168;  Fifield  ^  Raymond   v.   Raymond,  7  Cush.   605; 

V.  Sperry,  20  N.  H.  338.  Colby  v.  Poor,  15  N.  H.  198. 

5  Ilaskins   i'.    Hawkes,    108   Mass.   379  ;  8  Green  v.  Cross,  45  N.  H.  574,  582. 
Palmer  v.   Stevens,  11   Cush.  147;    Fay  v. 

197 


§§  1250,  1251.]       FORECLOSURE   BY    ENTRY    AND   POSSESSION. 

would  seem  that  without  the  mortgagor's  consent  tliere  could  be  no 
foreclosure  of  a  part  of  the  premises,  and  that  so  long  as  he  has  a 
right  to  redeem  any  part  he  may  redeem  the  whole.^ 

1250.  Assignment  of  the  entry.  —  An  entry  made  by  a  holder 
of  the  mortgage  inures  to  the  benefit  of  any  one  to  whom  it  may  be 
assigned  during  the  time  limited  for  redemption.  If  after  an  entry 
the  mortgage  be  assigned  at  the  request  of  the  mortgagor  to  a  friend 
of  his  to  hold  for  his  benefit,  the  foreclosure  is  not  postponed  or 
prevented  unless  the  mortgage  be  in  fact  paid.  Where  one  at  the 
request  of  the  mortgagor,  after  the  foreclosure  had  been  running- 
more  than  two  years,  paid  the  amount  due  and  took  an  assignment 
of  it,  orally  agreeing  with  the  mortgagor  to  hold  the  mortgage  sub- 
ject to  his  claim  for  the  amount  paid,  and  to  permit  the  mortgagor 
to  sell  the  land  in  lots,  paying  over  the  proceeds,  and  to  allow  the 
mortgagor  to  redeem  at  any  time  by  paying  the  amount  so  advanced 
with  interest,  it  was  held  that  the  foreclosure  was  not  stopped.^ 
Even  if  a  purchaser  from  a  mortgagor,  after  an  entry  by  the  mort- 
gagee, pays  him  the  amount  of  the  mortgage  and  enters  into  posses- 
sion, the  foreclosure  may  still  go  on  and  be  perfected  under  an 
agreement  with  the  mortgagee  that  he  should  hold  the  mortgage 
and  consummate  the  foreclosure.^  Although  one  of  the  notes  has 
been  transferred  to  a  third  person,  an  entry  by  the  holder  of  the 
mortgage  is  considered  as  made  for  that  as  well  as  for  the  note  held 
by  him,  and  will  operate  as  payment  of  both,  if  the  premises  be  of 
sufficient  value;*  if  not  of  sufficient  value,  the  notes,  in  the  absence 
of  any  agreement  to  the  contrary,  would  be  paid  i^ro  rata.  On 
completion  of  the  foreclosure  the  mortgagee  would  hold  a  propor- 
tionate interest  in  the  land  in  trust  for  the  holder  of  the  other  note. 

1251.  A  second  mortgagee  may  enter  and  take  possession  for 
the  purpose  of  foreclosure,  as  against  all  subsequent  mortgages  and 
the  equity  of  redemption.^  The  second  mortgagee  may  lose  his 
estate,  if  he  does  not  redeem  it  from  the  first  mortgage ;  but  as 
against  every  other  title  the  foreclosure  is  as  perfect  as  if  the  first 
mortgage  did  not  exist.  The  entries  under  the  two  mortgages  are 
not  inconsistent.  The  second  mortgagee  holds  a  constructive  pos- 
session, which  is  all  that  is  required,  and  his  certificate  of  entry  is 
notice  to  all  subsequent  parties,  and  will  bar  their  rights  after  such 
possession  has  continued  for  three  years.^ 

1  SpriDji^i'.  Haines,  21  Me.  126.     And  see  *  Haynes  v.  Wellington,  25  Me.  458. 
Treat  v.  Pierce,  53  Me.  71.  6  Lincoln  v.  Emerson,  108  Mass.  87. 

2  Capen  v.  Eichardson,  7  Gray,  364.  ^  Palmer  v.  Fowley,  5  Gray,  545.     And 

3  Cutts  V.  York  Manuf.  Co.  18  Me.  190.  see  Cavis  v.  McClarv,  5  N.  H.  529. 

198 


THE   ENTRY.  [§§  1252,  1253. 

A  first  mortgagee  has  the  right  to  retain  possession  of  the  estate 
for  the  purpose  of  foreclosing  against  the  original  mortgagor  and  all 
persons  claiming  under  him.  But  a  second  mortgagee  has  also  a 
right  to  foreclose  against  the  right  to  redeem  from  his  mortgage,  so 
that  a  foreclosure  of  both  mortgages  may  be  going  on  at  the  same 
time.  If  the  first  mortgagee,  after  having  taken  possession  for  the 
purpose  of  foreclosure,  takes  a  third  mortgage  or  a  conveyance  of 
the  equity  of  redemption  from  the  mortgagor,  the  second  mortgagee 
is  still  entitled  to  such  a  judgment  for  possession  of  the  mortgaged 
premises  as  will  enable  him  to  foreclose  the  riglit  which  the  first 
mortgagee  has  of  redeeming  from  the  second  mortgage,  subject  to 
the  prior  right  of  the  first  mortgagee  to  hold  possession  for  the 
purpose  of  foreclosing  his  mortgage.^ 

A  subsequent  mortgagee  has  only  an  equity  of  redemption  as  to 
prior  mortgagees.  He  may  enter  and  take  possession  of  the  mort- 
gaged premises  as  against  the  mortgagor,  but  is  himself  liable  to 
be  ousted  of  his  possession  by  the  entry  of  a  prior  mortgagee.  A 
first  mortgagee  after  entry  may  authorize  the  mortgagor  to  occupy 
as  his  agent ;  but  the  death  of  the  first  mortgagee  is  a  revocation  of 
such  authority,  and  the  mortgagor  cannot  by  virtue  of  his  agency 
afterwards  hold  the  premises  against  a  second  mortgagee.^  A  mort- 
gagor who  gives  a  second  mortgage  containing  full  covenants  of 
warranty,  and  subsequently  acquires  title  to  the  first  mortgage  after 
possession  taken  under  it,  cannot  ho^d  possession  against  the  second 
mortgagee,  because  he  is  estopped  by  the  covenants  of  warranty.^ 

1252.  A  married  "woman  cannot  enter  to  foreclose  a  mort- 
gage of  land,  the  equity  of  redemption  of  which  is  held  by  her 
husband.  The  statutes  removing  the  disabilities  of  married  women 
do  not  allow  the  adverse  relation  of  debtor  and  creditor  to  exist 
between  husband  and  wife.  She  could  not  maintain  a  writ  of  entry 
against  her  husband,  and  the  process  of  foreclosure  by  entry  and 
possession  is  equally  adverse.^  Her  right  to  enforce  a  forfeiture  of 
the  land  in  this  way  revives  so  soon  as  a  conveyance  of  it  is  made 
by  her  husband. 

1253.  The  mortgagee  may  enter  at  any  time  after  breach  of 
the  condition,^  and  he  does  not  lose  the  right  by  bringing  an  action 
to  foreclose ;  but  he  may  take  possession  during  the  two  months 
allowed  to  the  mortgagor  under  the  conditional  judgment  to  pay 

1  Cronin    v.    Hazeltine,   3    Allen,    324  ;  ^  Lincoln  v.  Emerson,  108  Mass.  87. 
Doten   V.  Hair,    16  Gray,  149;   Palmer  v.  *  Tucker  v.  Fenno,  110  Mass.  311. 
Fowley,  5  Gray,  545  ;    George  v.  Baker,  3  ^  See  chapter  xxv. ;  Shepard  v.  Richard- 
Allen,  326.  son,  145  Mass.  32,  11  N.  E.  Rep.  738. 

■^  Lincoln  v.  Emerson,  108  Mass.  87. 

199 


§§  1254-1256.]      FORECLOSURE   BY   ENTRY   AND   POSSESSION. 

the  amount  due.^  If  a  writ  of  possession  be  subsequently  issued 
upon  such  judgment,  and  possession  delivered  to  the  mortgagee  by 
virtue  of  the  writ,  then  the  previous  entry  is  waived  by  the  entry 
under  the  writ.^ 

1254.  An  entry  upon  a  part  of  the  land  mortgaged  by  one 
general  description  is  sufficient ;  ^  and  when  several  distinct  and  de- 
tached parcels  in  the  same  county  are  mortgaged  in  one  deed  for 
the  performance  of  one  condition,  an  entry  upon  any  one  is  a  good 
entry  upon  the  whole.*  Even  if  the  mortgagor  remains  in  posses- 
sion of  a  part  of  the  premises,  and  does  various  acts  of  ownership, 
such  as  blasting,  quarrying,  and  carrjang  away  stone,  he  does  not 
defeat  the  entry  and  possession  of  the  mortgagee.  These  acts  are 
held  to  be  done  in  subordination  to  the  title  of  the  mortgagee,  whom 
the  mortgagor  cannot  disseise.^  The  recording  of  the  evidence  of 
entry  is  notice  to  all  persons  of  the  relation  the  mortgagor  holds 
to  the  property  ;  and  he  is  conclusively  prevented  from  holding  ad- 
versely to  the  mortgagee. 

1255.  In  making  the  entry  the  mortgagee  should  have  the 
mortgage  deed  with  him,  to  enable  the  witnesses  to  certify  that  the 
entry  is  made  under  that  particular  mortgage;  but  if  they  certify 
that  the  entry  is  made  under  the  mortgage,  the  certificate  is  conclu- 
sive of  the  identity  of  the  mortgage,  whether  the  witnesses  have 
any  proper  knowledge  of  it  or  not.^ 

1256.  An  entry  is  peaceable  if  not  opposed  by  the  mortgagor 
or  other  person  claiming  the  premises.  If  it  be  opposed,  the  mort- 
gagee must  resort  to  his  action  at  law  to  recover  possession.  Though 
forcibly  repelled,  he  cannot  resort  to  the  process  of  forcible  entry 
and  detainer.''  The  remedies  are  confined  to  those  specifically  given 
by  statute. 

1  Mann  v.  Earle,  4  Gray,  299.  countie ;    by  such  entrie  he  shall  have  as 

2  Fay  V.  Valentine,  5  Pick.  418  ;  Fletcher  good  a  possession  and  seizin  of  all  the  lands 
r.  Cary,  103  Mass.  475,  480.  and   tenements   whereof   he   hath   title   of 

2  Lennon  y.  Porter,  5  Gray,  318  ;  Spring  entrie,  as   if   he   had   entered   indeed   into 

V.  Haines,  21   Me.  126;  Colby  v.  Poor,  15  every  porcell."     Litt.   Sec.  417.      "If  the 

N.  H.  198.  lands  lie  in  several  counties,"  says  Coke, 

*  Bennett  v.  Conant,  10  Cush.  163;  "there  must  be  several  actions,  and  con- 
Green  V.  Pettiugill,  47  N.  H.  375,  93  Am.  sequently  several  entries."  Coke,  Litt- 
Dec.  444 ;  Shapley  v.  Rangeley,  1  Wood.  &  252  h. 

M.  213.      "If  a   man  hath  cause  to  enter  ^  Hunt  v.  Hunt,  14  Pick.  374,  25  Am. 

into   any   lands    or    tenements   in    diverse  Dec.  400. 

townes  in  one  same  countie,  if  he  enter  into  ^  gge  Skinner  v.  Brewer,  4  Pick.  468. 

one  porcell  of  lands  or  tenements  which  are  '^Walker     v.    Thayer,    113     Mass.    36; 

in  one  towne,  in  the  name  of  all  the  lands  Hastings  v.  Pratt,  8  Cush.  121 ;  Larned  v. 

or  tenements  into  which  he  hath  right  to  Clarke,  8   Cush.  29 ;    Gerrish  v.  Mason,  4 

enter  within  all  the   townes   of  the  same  Gray,  432. 

200 


THE  POSSESSION.  [§§  1257,  1258. 

1257.  The  entry  is  sufficiently  open  if  made  in  the  presence 
of  two  competent  witnesses,  whose  certificate  is  sworn  to  and  duly 
recorded  within  thirty  days  in  the  registry  of  deeds  for  the  county 
where  the  land  lies.i  Even  though  the  entry  be  made  in  the  night- 
time, and  purposely  in  secret,  it  is  sufficient  if  the  certificate  of  the 
entry  be  duly  sworn  to  and  recorded.^  No  publicity  need  be  given 
to  the  entry  other  than  the  record  of  it.  Although  the  mortgagee 
be  already  in  occupation  of  the  premises,  he  may  make  an  entry 
in  the  presence  of  witnesses,  for  the  purpose  of  foreclosure,  without 
giving  other  notice  of  it  than  recording  the  certificate.  After  a 
breach  of  the  condition  has  given  the  mortgagee  the  right  to  enter, 
it  is  for  the  mortgagor  to  find  out  from  the  registry  whether  he  has 
entered.^ 

The  entry  is  valid  although  the  mortgagee  is  owner  of  the  equity 
of  redemption,  subject  to  a  second  mortgage,  and  although  the  sec- 
ond mortgagee  does  not  know  of  the  entry  until  after  the  expira- 
tion of  the  three  years.* 

After  a  breach  of  the  condition  of  a  mortgage,  an  entry  by  the 
mortgagee  upon  the  premises  is  presumed,  in  the  absence  of  evi- 
dence to  the  contrary,  to  have  been  for  the  purpose  of  foreclosure.^ 

IV.  The  Possession. 
1258.  The  possession  taken  is  a  constructive  rather  than  a 
literal  one.  The  formal  entry  being  made,  the  law  presumes  that 
possession  continues  unless  its  interruption  be  proved.  The  mort- 
gagor may  be  permitted  to  remain  in  occupation  without  in  any 
way  defeating  the  operation  of  the  entry  ;  and  the  mortgagee  need 
not  take  the  rents  and  profits.  The  mortgagor  holds  in  subordina- 
tion to  his  mortgagee's  paramount  right.  His  possession  is  the  pos- 
session of  the  mortgagee,  and  not  adverse.^  Even  under  a  statute 
requiring  "  actual  possession  "  by  the  mortgagee,  "  actual  occupa- 
tion "  by  him  is  not  required.     The  occupation  may  continue  in  the 

1  Thompson  v.  Kenyon,  100  Mass.  108.  ^  EHjg  j,_  Drake,  8  Allen,  161  ;  Fletcher 

2  Ellis  V.  Drake,  8  Allen,  161;  Hobbs  v.  v.  Gary,  103  Mass.  475;   Swift  v.  Mendell, 
Fuller,  9  Gray,  98.  8  Cush.  357;  Bennett  v.  Conaut,  10  Gush. 

3  Davis  V.  Rodgers,  64  Me.  159;  Ghase  163;  Thompson  v.  Vinton,  121   Mass.  139; 
V.  Marston,66  Me.  271.  Porter  v.  Hubbard,  134  Mass.  233;  Morse 

*  Tompson    v.  Tappan,    139    Mass.  506,  v.  Bassett,  132  Mass.  502 ;   Tarbell  y.  Page, 

1  N.  E.  ]{ep.  924.  155   Mass.    256;    Deming  v.   Gomings,   11 

5  Walker    v.    Thayer,    113    Mass.    36;  N.  H.  474;    Howard  v.  Handy,  35  N.  H. 

Ayres  v.    Waite,    10  Gush.    72;    Taylor  v.  315,  323;    Gibson  v.  Bailey,  9  N.  H.  168, 

Weld,  5  Mass.  109;  Whitney  w.  Guild,  11  172;    Kittredge  v.   Bellows,  4  N.  H.  424; 

Gray,  496;    Hunt  v.  Stiles,  20  N.  H.  466,  Hurd  v.   Goleman,  42  Me.  182;    Ghase  v. 

468,  Marston,  66  Me.  271. 

201 


§  1259.]  FORECLOSURE   BY   ENTRY   AND   POSSESSION. 

mortgagor,  who  will  be  regarded  as  a  tenant  at  will  of  the  mortga- 
gee, in  whom  is  the  possession.  It  is  only  necessary  that  the  pos- 
session of  the  mortgagor  or  other  tenant  should  not  be  adverse.^  In 
Maine,  however,  the  possession  required  is  equivalent  to  an  actual 
possession.2  The  mortgagee's  formal  entry  does  not  amount  to 
anything  without  continued  possession  for  three  years.^ 

The  legal  possession  is  in  the  mortgagee  although  the  mortgagor 
is  in  actual  possession,  and  the  title  to  the  crops  growing  or  after- 
wards raised  upon  the  premises  is  in  the  mortgagee.  If  after 
entry  the  mortgagee  of  a  farm  makes  an  arrangement  with  the 
mortgagor  by  which  the  latter  is  to  can-y  on  the  farm,  but  instead 
of  doing  so  he  sells  the  equity  of  redemption,  and  the  purchaser 
takes  possession  without  the  knowledge  of  the  mortgagee,  and  raises 
and  gathers  the  crops,  and  delivers  a  portion  of  them  to  a  creditor 
who  had  notice  of  the  mortgagee's  claim,  the  mortgagee  may  take 
possession  of  the  crops  so  delivered,  without  incurring  liability  to 
an  action  of  tort  for  a  conversion.^ 

A  mortgagee  in  possession,  under  a  certificate  of  entry  for  a 
breach  of  the  condition,  has  a  sufficient  title  to  the  land  to  enable 
him  to  maintain  an  action  of  trespass  for  damages  done  to  the 
mortgaged  property  by  the  tearing  down  and  carrying  away  a 
dwelling-house.^ 

V.   The  Certificate  of  Witnesses. 

1259.  What  it  must  state.  —  The  purpose  of  the  certificate 
being  to  give  notice  to  all  persons  concerned  that  the  mortgagee 
has  entered  for  foreclosure,  its  allegation  must  be  definite,  and  must 
cover  all  the  matters  necessary  to  effect  this  change  of  title.  The 
mortgage  to  be  foreclosed  must  be  identified.  The  fact  of  entry 
and  the  date  of  it^  are  the  most  essential  particulars.  The  purpose 
of  it  should  be  declared ; "'  but   the  manner  in  which   the  entry  is 

1  Palmer  v.  Fowley,  5   Gray,  545,  546  ;  is  held  that  a  statement  that  the  purpose 

Swift  V.  Mendel],  8  Gush.  357  ;  Gilman  ;;.  of  the  entry  is  to  foreclose  the  mortgage  is 

Hidden,  5  N.  H.  30.  essential,  though  the  mortgagee's  intention 

'■^  Ghamberlain  v.  Gardiner,  38  Me.  548.  to  foreclose  may  clearly  appear.     Morris  v. 

3  Chase  v.  Marston,  66  Me.  271  ;  Jarvis  Day,  37  Me.  386.     The  certificate  in  this 

I'.  Albro,  67  Me.  310.  case  concluded   thus:    "The   condition  of 

*  Porter  v.  Hubbard,  134  Mass.  233.  said  mortgage  having  been  broken,  the  said 

^  Tarbell  ik  Page,  155  Mass.  256.  Day  claims  to  foreclose  the  same.     We,  the 

^  Snow  V.  Pressey,  82  Me.  552,  20  Atl.  subscribers,   at   the   request  of   said    Day, 

Rep.  78.  went  with  him  on  all  the  premises  described 

"  In  Massachusetts  the  purpose  of  the  in  the  mortgage   deeds,  on    the   sixteenth 

entry,   after   a   breach    of    the    condition,  day  of  May,  a.  d.  1839,  and  saw  him  enter 

would  be  presumed  to  be  for  the  purpose  of  and  take  peaceable  possession  of  the  prem- 

foreclosure.     See  §  1257.     But  in  Maine  it  ises."    This  was  held  ineffectual  to  estab- 

202  lish  a  foreclosure. 


THE    CERTIFICATE    OF   WITNESSES.  [§  1260. 

made  is  not  of  material  importance  so  far  as  the  certificate  goes. 
The  omission  to  state  in  terms  that  the  entry  was  "open  and  peace- 
able "  does  not  make  the  certificate  defective  ;  ^  it  is  enough  to  state 
that  it  was  made  in  the  presence  of  two  witnesses.  It  seems,  how- 
ever, that  it  is  open  to  the  mortgagor  to  prove  that  the  entry  was 
not  in  fact  open  and  peaceable  if  this  be  not  alleged  in  the  certifi- 
cate,2 

1260.  The  certificate  duly  made  and  recorded  is  conclusive 
evidence  of  the  acts  and  statements  of  the  mortgagee  with  refer- 
ence to  the  entry,  and  its  allegations  of  any  fact  necessary  to  estab- 
lish foreclosure  as  of  an  actual  entry  having  been  made  cannot 
be  controlled  by  oral  evidence. ^  The  certificate  cannot  be  con- 
tradicted by  proof  that  the  mortgagee  did  not  actually  go  upon  the 
lands.  If  it  omit  to  state  any  essential  fact,  it  cannot  be  cured  by 
subsequent  testimony  of  witnesses.  All  the  facts  necessary  to  the 
foreclosure  must  appear  by  the  certificate,  which  is  the  only  proper 
evidence  of  them.^  The  certificate  is  not,  however,  conclusive 
evidence  that  there  has  been  a  breach  of  the  condition  of  the  mort- 
gage. Whether  there  has  been  a  breach  or  not  may  be  shown  by 
parol  evidence.'^ 

The  certificate  of  witnesses  to  prove  the  entry  need  not  be  on 
the  mortgage  deed,  but  may  be  on  a  separate  paper.^  The  signa- 
ture of  a  witness  is  sufficient  if  made  by  his  mark.'^ 

1  Hawkes   v.   Brigham,    16    Gray,   561;    for  the  purpose  of  foreclosure.     The  certifi- 

Thompson  v.  Kenyon,  100  Mass.  108.  cate  is  in  eJfect  a  deposition  in  perpetuam, 

'^  The  form  of  certificate  in  general  use  is    takenex  parte,  which  conclusively  and  finally 

as  follows: —  establishes,  as  between  the  mortgagee  and 

"  We  hereby  certify  that  we   were    this    the   mortgagor,   the    facts   therein   stated. 

day  present  and  saw  ,  the  mortgagee    The  mortgagee  cannot  be  allowed  to  take  a 

named  in  a  certain  mortgage  deed  given  by    deposition  in  a  suit  to  which  he  is  himself  a 

,  dated  ,  and  recorded  ,    party.     Judd  t;.  Tryon,  131  Mass.  345.    The 

make  an  open,  peaceable,  and    unopposed    certificate  may  be  sworn  to  before  a  notary 

entry  on  the  premises  described  in  the  said    public,  though  the  statute  specifies  a  justice 

mortgage,  for  the  purpose  by  him  declared    of  the  peace.     Murphy  v.  Murphy,  145  Mass. 

of  foreclosing  said  mortgage  for  breach  of    224,  13  N.  E.  Eep.  474. 

the  condition  thereof.     In  witness  whereof        ^  Oakham  y.  Rutland,  4  Cush.  172  ;  Swift 

V.  Mendell,  8  Gush.  357  ;  EUis  v.  Drake,  8 
Allen,  161 ;  Thompson  v.  Kenyon,  100  Mass. 
108,  112. 

*  Morris  v.  Day,  37  Me.  386. 
This  should  be  sworn  to.  5  jjin    ^^   More,   40   Me.  515;  Pcttee  v. 

It  is  not  competent  for  the  mortgagee  to     Case,  11  Gray,  478. 
act  as  a  magistrate  in  taking  the  oath  of  the        ^  Bartlett  v.  Johnson,  9  Allen,  530. 
witnesses  to  a  certificate  of   his  own  open,        ''  Thompson  v.  Kenyon,  100  Mass.  108. 
peaceable,  and  unopposed  entry  upon  land 

203 


we  hereto  set  our  hands  this 

di 

of 

"A.  B. 

"  C.  D." 

§§  1261,  1262.]      FORECLOSURE   BY   ENTRY   AND   POSSESSION. 

VI.  The  Certificate  of  the  Mortgagor. 

1261.  When  the  mortgagor  consents  to  the  entry,  and  makes 
a  certificate  ^  of  the  fact,  this  is  conclusive  evidence  of  it.  He  is 
estopped  to  deny  the  fact  of  such  entry.  It  is  of  no  consequence 
that  he  continues  in  occupation  of  the  premises;  for  after  entry  he 
must  hold  as  tenant  of  the  mortgagee,  or  in  subordination  to  his 
right  of  possession.2  After  the  mortgagor  has  conveyed  the  equity 
of  redemption  to  a  third  person,  and  has  no  further  interest  in  it,  he 
cannot  give  a  good  certificate  although  he  remains  in  possession  of 
the  premises.^  If,  however,  he  has  taken  back  a  mortgage  of  the 
premises  on  conveying  them,  he  as  well  as  the  purchaser  should 
consent  to  the  entry .^ 

VII.  When  the  Limitation  commences. 

1262.  The  limitation  of  three  years  commences  after  the 
entry  has  been  made  and  possession  acquired  for  a  breach  of  the 
condition  of  the  mortgage ;  and  as  the  law  does  not  take  notice  of 
fractional  parts  of  a  day,  the  continuance  of  the  possession  com- 
mences the  day  following  that  of  the  entry,  so  that  in  the  compu- 
tation of  the  three  years  that  day  is  excluded.^  The  possession 
commences  on  the  day  of  entry,  although  the  certificate  be  not  re- 
corded till  afterwards.^  If  the  entry  was  before  breach  of  the 
condition,  the  time  limited  for  redemption  does  not  commence  to 
run  until  the  condition  is  broken,  and  notice  in  writing  given  by 
the  mortgagee  that  he  will  from  that  time  hold  the  premises  for  a 
breach  of  the  condition,  or  a  new  and  formal  entry  for  breach  of 
the  condition  is  made.  A  certificate  of  such  notice  or  new  entry 
must  be  recorded .*" 

1  The  following  is  a   usual   form   of  a  betaken;  the  mortgagor's  consent  to  entry- 
mortgagor's  certificate  :  —  and  declaration  that  "  possession  is  hereby 

"  I,  the  within  named  mortgagor,  hereby  given  "  is  not  sufficient,  unless  actual  entry 

acknowledge  and   certify  that               ,  the  was   made.     Chamberlain   v.  Gardiner,  38 

within  named  mortgagee,  has  this  day  made  Me.  548 ;  Storer  v.  Little,  41  Me.  69  ;  Pease 

an  open,  peaceable,  and  unopposed   entry  v.  Benson,  28  Me.  336.     In  Massachusetts 

upon  tlie  premises  described  in  the  within  this  certificate  must  be  made  on  the  mort- 

mortgage,  for  breach  of  the  condition  therein  gage  deed.     P.  S.  1882,  ch.  181,  §  2. 

contained.    Witness  my  hand  this             day  ^  Sisson  r.  Tate,  109  Mass.  230. 

of           .  *  Chase  v.  Gates,  33  Me.  363. 

"A.  B."  5  Fuller  v.  Russell,  6  Gray,  128. 

-  Lawrence    v.   Fletcher,    10   Met.   344;  ^  Thompson  v.  Vinton,  121  Mass.  139. 
Oakham  y.  Rutland,  4  Cush.  172;  Bennett  "  Massachusetts:    P.   S.  ch.   181,  §§  10, 
V.  Conant,  10  Cush.  163,  166;  Swift  v. Men-  11,  adopting  the  law  as  laid  down  in  Pom- 
dell,  8  Cush.  357.  eroy  v.  Winship,  12  Mass.  514,  7  Am.  Dec. 

In  Maine  it  is  held  actual  possession  must  91 ;  Scott  v.  McFarland,  13  Mass.  309,  313  ; 

204 


RECORD   OF   THE   CERTIFICATE.  .       [§  1263. 

If  a  mortgagee  or  his  assignee,  while  a  writ  of  entry  for  the 
foreclosure  of  the  mortgage  is  pending,  enter  for  the  purpose  of 
foreclosure,  and  hold  possession  of  the  premises  until  the  writ  of 
possession  is  issued  in  the  suit,  he  may  justify  his  possession  as  "  by 
process  of  law"  under  the  statute,  as  commencing  at  the  date  of 
such  writ ;  and  the  foreclosure  will  be  complete  in  three  years  from 
that  time.i  If  the  action  for  possession  be  brought  after  an  entry 
in  pais,  and  judgment  is  obtained  and  possession  delivered  upon  the 
execution,  the  three  years  will  run  from  the  time  of  delivery  of 
possession  under  the  execution.^ 

In  Maine,  when  foreclosure  is  effected  under  provision  of  statute 
by  the  publication  of  notice  of  an  entry  to  foreclose,  the  limitation 
of  three  years  for  redemption  runs  from  the  first  publication  of 
notice.^ 

In  New  Hampshire  the  limitation  of  one  year  runs  from  the  time 
of  entry,  if  notice  of  it  is  published  as  provided  by  statute,^ 

The  foreclosure  is  defeated  by  a  tender  or  payment  of  the  amount 
due  on  the  mortgage  before  the  expiration  of  the  three  years.  If 
the  last  day  of  the  three  years  falls  on  Sunday,  a  tender  of  the 
amount  on  the  day  following  is  too  late.-^ 

VIII.  Record  of  the  Oertificate. 
1263.  The  certificate,  whether  made  by  the  mortgagor  or  by 
the  witnesses,  must  be  recorded  within  the  time  specified  by 
statute,  to  render  it  effectual  as  evidence  of  the  entry.  The  record 
of  the  certificate  being  all  the  notice  of  the  entry  required  to  be 
given,  it  is  essential  that  the  record  be  made  as  required,  or  the 
certificate  is  wholly  inoperative.^  If  the  date  of  the  entry  be  not 
stated  the  certificate  is  insufficient,  although  this  be  dated  and  re- 
corded, for  it  is  not  certain  that  the  record  was  made  within  thirty 
days  from  the  time  of  the  entry."  When  so  recorded  it  is  con- 
structive notice  of  the  entry  to  all  persons  who  claim  by  any  title 

Ayres  v.  Waite,  10  Cush.  72,  78  ;  Merriam  2  Pay  v.  Valentine,  5  Pick.  418;  Page  v. 

V.  Merriam,  6  Cush.  91  ;  Erskiue  v.  Towns-  Robinson,  10  Cush.  99,  101. 

end,  2  Mass.  495,  3  Am.  Dec.  71  ;  Hunt  3  R.  S.  1883,  ch.  90,  §§  5,  6.     See  Hol- 

V.  Stiles,  10  N.  H.  466;  Willard  v.  Henry,  brook  v.  Thomas,  38  Me.  256. 

2  N.  H.  120.  4  p.  S.   1891,  ch.  139,  §  14;  Howard  v. 

In  New  Hampshire,  as  already  seen,  there  Handy,  35  N.  H.  315. 

is  a  special  provision  of  statute  for  the  pub-  ^  Haley  v.  Young,  134  Mass.  364. 

lication  of  a  notice  by  a  mortgagee  already  ^  Robbins  v.  Rice,  7  Gray,  202 ;  Souther 

in  possession,   stating  that  from  a  certain  v.  Wilson,  29  Me.  56 ;  Potter  v.  Small,  47 

day  he  will  hold  for  the  purpose  of  fore-  Me.  293. 

closure.     P.  S.  1891,  ch.  139,  §  14.  ■?  Freeman  v.  Atwood,  50  Me.  473. 

1  Hurd  V.  Coleman,  42  Me.  182. 

205 


§§  1264,  1265.]      FORECLOSURE   BY   ENTRY   AND   POSSESSION. 

acquired  subsequently  to  the  mortgage.^  It  is  sufficient  evidence 
of  an  eviction  of  the  holder  of  the  equity  of  redemption  to  enable 
him  to  sustain  an  action  against  his  grantor  for  breach  of  a  cove- 
nant of  warranty."^ 

IX.  Effect  of  the  Foreclosure  upon  the  Mortgage  Debt. 

1264.  The  foreclosure,  when  complete,  operates  as  payment 
of  the  debt  to  the  extent  of  the  value  of  the  land  at  the  time  when 
the  foreclosure  became  absolute.^  It  has  the  effect  of  a  payment, 
and  makes  absolute  the  title  of  the  mortgagee,  although  the  note 
secured  was  void  for  any  reason  ;  as,  for  instance,  a  note  given  for 
the  price  of  intoxicating  liquors  sold  in  violation  of  law,  and  there- 
fore void  by  statute.*  In  such  case,  although  the  mortgage  could 
not  be  enforced,  and  the  owner  of  the  equity  of  redemption  could 
have  defeated  it  at  any  time  before  the  foreclosure  was  completed, 
yet,  the  mortgagee  having  entered  and  kept  possession  till  the  right 
to  redeem  is  foreclosed,  he  then  has  an  absolute  title ;  and  the  land 
is  applied  by  operation  of  law  to  the  payment  of  the  debt. 

X.    Waiver  of  Entry  and  Foreclosure. 

1265.  By  express  or  implied  agreement.  —  An  entry  to  fore- 
close, or  a  foreclosure,  when  completed,  may  be  waived  by  the  express 
agreement  of  the  parties,  or  by  facts  from  which  such  agreement 
may  be  inferred.  It  is  waived  hj  the  mortgagee's  giving  a  bond 
just  before  the  completion  of  the  possession,  with  condition  to  dis- 
charge the  mortgage  upon  payment  of  the  debt  at  a  future  day  ;  ^ 
or  by  giving  an  agreement  that  if  the  debt  be  paid  by  a  certain 
time  no  advantage  shall  be  taken  of  the  foreclosure;*'  or  by  stipu- 
lating in  writing  to  reconvey  whenever  the  debt  should  be  satisfied 
out  of  the  rents  and  profits,  or  in  any  other  way  ; '  or  by  promising 
to  allow  the  mortgagor  six  months  for  redemption  after  the  expi- 
ration of  the  regular  time  limited ;  ^  or  by  a  statement  made  a 
month  before  the  time  of  redemption  would  expire  that  he  would 
give  some  time,  but  would  not  Avait  long  without  taking  advantage 
of  the  mortgage.^ 

1  Lennon  v.  Porter,  5  Gray,  318,  319;  had  purchased  the  liquors  and  paid  for  them 
Robbins  v.  Rice,  7  Gray,  202.  by  an   absolute   conveyance   of   the   land." 

^  Furnas  v.  Durgin,   119  Mass.  500,  20  See  §  617. 

Am.  Rep.  341.  5  Joslin  v.  Wyman,  9  Gray,  63. 

2  See  §  952;  Smith  v.  Packard,  19  N.  H.  ^  McNeil  v.  Call,  19  N.  H.  403,  416,  51 
575.  Am.  Dec.  188. 

4  McLaughlin  v.  Cosgrove,  99    Mass.  4,        "^  Quint  v.  Little,  4  Me.  495. 
per   Mr.   Justice   Chapman.     "  In    a    case        ®  Chase  v.  McCiellan,  49  Me.  375. 
like  the  present,  it  is  as  if  the  mortgagor        ^  Danforth  v.  Roberts,  20  Me.  307. 

206 


WAIVER   OF  ENTRY   AND   FORECLOSURE.  [§  1266. 

In  all  cases,  however,  when  the  waiver  is  not  absolute,  but  is  for 
a  limited  time,  advantage  can  be  taken  of  it  only  within  the  time 
limited. 1  The  condition  of  the  waiver  or  extension  must  be  com- 
plied with .2  An  express  waiver  of  entry,  though  executed  under 
seal,  is  not  effectual  unless  it  is  delivered  to  the  holder  of  the  equity 
of  redemption.^ 

If  the  mortgagor  remains  in  occupation  of  the  mortgaged  prem- 
ises for  many  years  after  the  expiration  of  the  time  of  redemjition, 
and  pays  taxes  upon  them,  and  interest  to  the  mortgagee,  these 
facts  are  consistent  only  with  the  relation  between  the  parties  of 
mortgagor  and  mortgagee,  and  justify  the  conclusion  that  the  mort- 
gage has  not  been  foreclosed.^  Giving  permission  to  the  mortgagor 
to  cut  timber  on  the  mortgaged  land,  and  receiving  stumpage  from 
him,  is  not  inconsistent  with  the  further  prosecution  of  foreclosure 
by  notice  in  the  newspapers  in  the  mode  permitted  by  statute  in 
Maine,  as  this  mode  does  not  involve  the  actual  possession  of  the 
premises  by  the  mortgagor.^ 

1266.  An  assignment  of  a  mortgage  after  an  entry  does  not  of 
itself  stay  the  foreclosure.  The  assignee  takes  all  the  benefits  of 
the  entry  and  possession.^  An  assignment  of  both  the  mortgage 
and  note,  after  the  expiration  of  three  years  from  the  entry,  to  a 
subsequent  mortgagee,  is  no  release  of  the  foreclosure.^ 

Foreclosure  is  not  waived  or  postponed  by  an  assignment  of  the 
mortgage  before  the  expiration  of  the  time  of  redemption  to  one 
who,  at  the  request  of  the  mortgagor,  pays  the  mortgagee  the 
amount  of  the  mortgage,  and  agrees  orally  with  the  mortgagor  to 
hold  the  estate  subject  to  such  advance  for  the  use  of  the  mort- 
gagor, and  to  permit  him  to  sell  the  land  in  lots  and  pay  over  the 
proceeds,  or  to  redeem  on  paying  the  amount  so  advanced  at  any 
time.*^  The  assignee  in  such  case  takes  all  the  legal  rights  of  the 
mortgagee,  and  the  foreclosure  goes  on.  He  holds  the  property 
under  no  resulting  trust,  because  the  consideration  is  wholly  paid 

1  Danforth  v.  Roberts,  20  Me.  307.  amount  due  on   the  first  mortgage  and  in- 

-  Clark  V.  Crosby,  101  Mass.  184.  terest  accrued.     The  mortgagor  had  filed  a 

3  Cutts  V.  York  Manuf.  Co.  14  Me.  326.  bill  in  equity  to  redeem  just  before  the  ex- 

*  Trow  V.  Berry,  113  Mass.  139.  pi  ration  of  the  three  years.     While  the  suit 

5  Smith  V.  Larrabec,  58  Me.  361.  was  pending  the  three  years  expired,  but 

^  Deming    v.   Comings,    11    N.  H.   474;  the  mortgagor  subsequently  abandoned  the 

Hill   V.  More,  40  Me.  515;    Hurd  v.  Cole-  suit.      The   second  mortgagee,  by   the   as- 

man,  42  Me.   182;    Cutts  v.  York  Manuf.  signment,  succeeded  to  all  the  rights  of  the 

Co.  14  Me.  326.  first  mortgagee,  and   held  the  land  by  an 

■  Thompson  v.   Kenyon,  100  Mass.  108.  indefeasible   title   under  a  completed  fore- 

The  assignment  in  this  case  was  by  a  quit-  closure. 

claim  deed  for  a  consideration  equal  to  the  *  Capen  v.  Richardson,  7  Gray,  364. 

207 


§§  1267-1269.]       FORECLOSURE   BY  ENTRY    AND   POSSESSION. 

by  him  ;  and  under  no  express  trust,  because  not  declared  in  writ- 
ing. The  agreement  does  not  constitute  a  mortgage,  because  it 
was  not  made  with  one  from  whom  an  absokite  title  was  taken 
simultaneously. 

But  an  assignment  made  for  the  purpose  of  preventing  a  re- 
demption, as,  for  instance,  if  it  be  made  immediately  before  the 
time  of  redemption  would  expire,  so  that  the  mortgagor  does  not 
know  to  whom  to  make  payment,  may  have  the  effect  to  keep  the 
redemption  open  till  a  tender  can  be  made  to  the  assignee  ;  ^  and 
even  if  it  be  made  without  such  intent,  it  may  have  the  effect  to 
keep  the  equity  open  until  the  mortgagor  can  find  the  assignee  and 
offer  to  perform  the  condition.^ 

1267.  The  waiver,  to  be  effectual,  must  be  by  the  holder 
of  the  mortgage.  One  who  has  not  acquired  any  interest  in  the 
mortgage  cannot  b}^  his  agreement  extend  the  time  of  redemption 
beyond  the  period  when  it  would  otherwise  be  foreclosed  ;2  though, 
if  he  should  afterwards  take  an  assignment  of  the  mortgage,  he 
would  doubtless  be  concluded  by  this,  and  the  foreclosure  opened 
accordingly.  The  assignee  of  a  mortgage  assigned  to  him  by  the 
mortgagee  as  security  for  the  payment  of  a  debt  of  his  may,  after 
entering  with  the  knowledge  of  the  mortgagee  to  foreclose,  waive 
and  release  this  entry  without  the  assent  of  the  mortgagee.  The 
assignee  has  full  control  of  the  remedies  provided  by  law,  and  may 
enter  into  or  relinquish  possession  at  his  discretion.* 

If  after  entry  the  mortgagee  be  put  under  guardianship  as  a 
spendthrift,  the  guardian  has  authority  to  restore  possession  to  the 
mortgagor,  to  hold  as  before  the  entry,  and  to  prevent  a  foreclosure.^ 
Such  restoring  of  possession  will  do  away  with  the  effect  of  the 
entry  and  prevent  foreclosure.^ 

1268.  An  entry  does  not  waive  rights  acquired  under  a  pre- 
vious purchase  at  a  sale  under  a  power.  Where  a  mortgagee 
has  indirectl}'  become  a  purchaser  at  a  sale  made  under  a  power 
contained  in  the  mortgage,  which  gave  him  no  right  to  purchase, 
and  the  sale  is  for  this  reason  voidable,  he  may  enter  to  foreclose, 
and  record  his  certificate  of  entry  without  waiving  or  abandoning 
any  rights  acquired  by  the  purchase.  The  entry  in  itself  does  not 
show  such  intention.' 

1269.  Payment  works  a  waiver.     An  entry  to  foreclose,  as 

1  McNeil  V.  Call,  19  N.  H.  403,  414,  51  *  Cutts  v.  York  Manuf.  Co.  14  Me.  326. 
Am.  Dec.  188.  5  Botham  v.  M'Intier,  19  Pick.  346. 

2  Deming  v.  Comings,  11  N.  H.  474.  ^  Botham  v.  M'Intier,  19  Pick.  346. 
8  Fisher  v.  Shaw,  42  Me.  32.  ''  Learned  v.  Foster,  117  Mass.  365. 

208 


WAIVER  OF  ENTRY  AND  FORECLOSURE.       [§  1270. 

well  as  a  foreclosure  itself,  is  of  course  waived  by  subsequently 
receiving  payment  of  the  mortgage  debt,i  or  of  any  part  of  it ;  ^ 
or  by  receiving  articles  which  the  mortgagor  had  agreed  in  the 
condition  of  the  mortgage  to  furnish  in  support  of  the  mortgagee, 
who  continued  to  reside  with  the  mortgagor  ;3  or  by  receiving 
interest  as  such  on  the  mortgage  debt.*  But  the  mere  fact  that, 
after  the  three  years,  payments  are  made  on  account  of  the  mort- 
gage debt,  will  not  open  the  foreclosure.  Such  payments  may 
have  been  made  because  the  premises  were  not  of  sufiBcient  value 
to  satisfy  the  debt.  The  intention  of  the  parties  to  waive  the 
foreclosure  should  be  shown  by  other  evidence.^  If  the  mort- 
gagee, after  the  expiration  of  three  years  from  his  entry,  at  the 
request  of  the  mortgagor,  conveys  the  premises  to  a  third  person 
by  a  deed  reciting  that  it  is  made  at  the  request  of  the  mortgagor, 
and  is  intended  to  discharge  all  title  acquired  by  the  mortgagee, 
the  grantee  having  paid  the  amount  due  on  the  mortgage,  the 
grantee  takes  a  title  subject  to  redemption  by  the  mortgagor.^ 
But  a  quitclaim  deed  by  a  mortgagee  after  foreclosure  to  one  of 
two  mortgagors,  in  consideration  of  a  sum  equal  to  the  original 
mortgage  debt,  is  not  sufficient  evidence  of  an  opening  of  the  fore- 
closure to  revest  any  title  in  the  other  mortgagor  as  a  joint  owner." 
After  the  foreclosure  there  was  no  privity  between  the  mortgagors. 
The  grantee  had  as  good  a  right  to  purchase  as  a  stranger.  The 
fact  that  he  paid  a  sum  equal  to  that  due  on  the  mortgage  at  that 
time  is  no  presumption  that  the  transaction  was  a  redemption  for 
the  benefit  of  both. 

1270.  If  the  payment  be  made  and  received  under  an  express 
understanding  that  the  foreclosure  is  to  be  opened,  there  can  be 
no  question  that  it  is  opened.^  Facts  and  circumstances  from  which 
an  express  understanding  may  be  clearly  inferred  avail  equally.^ 
But  the  acts  of  the  parties  will  not  have  this  effect  when  they  are 
such  as  to  leave  their  intention  doubtful  in  this  respect,  or  when 
they  may  be  explained  consistently  with  the  right  of  the  mortgagee 
to  retain  the  estate  under  the  foreclosure.^*^ 

1  Robinson  v.  Batchelder,  4  N.  H.  40  ;  receipt  of  part  of  the  money  secured  by  the 
Gould  V.  White,  26  N.  H.  178;  Green  v.  morttrage  is  held  to  waive  the  foreclosure. 
Cross,  45  N.  PI.  574,  577.      •  McNeil  v.  Call,  19  N.  H.  403,  51  Am.  Dec. 

2  And  see  Winchester  v.  Ball,  54  Me.  188;  Deming  v.  Comings,  11  N.  H.  474; 
558.  Moore  v.  Beasom,  44  N.  H.  215. 

3  Willard  i'.  Henry,  2  N.  H.  120.  6  Rangely  v.  Spring,  28  Me.  127. 

*  Trow  V.  Berry,  113  Mass.  139.  7  Crittenden  v.  Rogers,  8  Gray,  452. 

^Lawrence   v.   Fletcher,    10    Met.    344;  8  Dow  y.  Moor,  59  Me.  118. 

Tompson  v.  Tappan,  139  Mass.  506,  1  N.  E.  ^  Stetson  v.  Everett,  59  Me.  376. 

Rep.  [924.      In   New  Hampshire  the  mere  i''  Lawrence  v.  Fletcher,  8  Met.  153. 
VOL.  II.                 14  209 


§§  1271-1273.]      FORECLOSURE   BY   ENTRY   AND   POSSESSION. 

After  a  mortgagee  has  entered  under  a  judgment  in  an  action 
to  foreclose  the  mortgage,  a  release  of  the  judgment  does  not  of 
itself  operate  as  a  waiver  in  law  of  the  foreclosure,  which  will  be 
complete  if  he  retains  continued,  actual  possession  during  the  time 
provided  by  statute  for  the  purpose  of  foreclosing.  His  possession 
is,  by  virtue  of  his  mortgage  title,  established  by  the  judgment,  and 
not  under  the  process.^ 

1271.  The  entry  is  not  waived  by  the  mortgagee's  render- 
ing an  account  charging  himself  with  rent  for  a  period  after  the 
entry  ;  ^  nor  by  his  neglect  or  refusal  to  render  an  account  to  the 
mortgagor  at  his  request  of  the  amount  due  on  the  mortgage.^  If 
a  mortgagee  in  his  answer  made  in  a  suit  in  equity  to  redeem  the 
mortgage  expressly  waives  all  objection  to  redemption,  upon  pay- 
ment of  all  sums  due  upon  it,  he  cannot  afterwards  claim  that  the 
mortgage  had  been  foreclosed  before  the  suit  was  commenced.* 

1272.  Conditional  waiver.  —  A  mortgagee  does  not  waive  a 
foreclosure  which  has  already  become  absolute,  or  extend  the  time 
of  redemjDtion,  by  agreeing  to  allow  the  mortgagor  to  redeem  the 
premises  upon  the  payment  before  a  certain  date  of  an  amount 
equal  to  what  was  due  on  the  mortgage  on  that  day,  if  the  agree- 
ment be  not  fulfilled  by  payment  or  tender  of  the  money  within 
the  time  limited.^  And  so  if  a  surety  or  other  person  in  behalf 
of  the  mortgagor  pays  the  conditional  judgment,  and  takes  an 
assignment  of  it  either  before  or  after  the  lapse  of  the  three  years 
from  the  time  possession  was  taken,  under  an  agreement  with  the 
mortgagor  to  assign  it  to  him  if  he  should  pay  the  amount  within 
a  certain  time,  if  the  agreement  be  not  kept  there  is  no  waiver  of 
the  foreclosure,  which  becomes  perfect  in  the  hands  of  the  as- 
signee.^ And  so  also  an  agreement  by  the  mortgagee  to  sell  his 
foreclosure  title  to  the  mortgagor  for  the  amount  of  the  mortgage 
debt,  to  be  paid  within  a  certain  time,  is  not  sufficient  to  open  the 
foreclosure.^ 

1273.  The  entry  is  not  waived  by  the  mortgagee's  bring- 
ing a  writ  of  entry  against  a  tenant  at  will  of  the  mortgagor,  and 
obtaining  judgment  for  possession,  although  in  such  a  writ  the 
demandant  describes  himself  as  out  of  possession,  and  the  tenant 
as  wrongfully  withholding    possession  from  iiim.      This  is  only  a 

1  Couch  V.  Stevens,  37  N.  H.  169.  ^  Clark  v.  Crosby,  101  Masa.  184. 

2  Hobbs  V.  Fuller,  9  Gray,  98.  «  Worthy  v.  "Warner,  119  Mass.  550. 

3  Sanborn  v.  Dennis,  9  Gray,  208.  ">  Stetson  v.  Everett,  59  Me.  376. 
*  Strong  V.  Blanchard,  4  Allen,  538. 

210 


WAIVER   OF   ENTRY   AND   FORECLOSURE.       [§§  1274,  1275. 

technical  and  formal  admission  made  for  the  purpose  of  enforcing 
a  convenient  remedy.  It  is  no  admission  that  the  mortgagee  is 
out  of  possession,  or  that  he  waives  the  benefit  of  his  formal  en- 
try.^ Even  the  bringing  of  a  writ  of  entry  against  the  owner  of 
the  equity  of  redemption  for  the  purpose  of  foreclosure  is  not  an 
abandonment  of  the  possession  previously  taken  ;2  but  if  a  condi- 
tional judgment  be  entered  and  a  writ  of  possession  issue,  under 
which  the  mortgagee  is  put  in  possession,  this  is  a  waiver  of  a  pre- 
vious entry.3  'pj^g  bringing  of  an  action  of  trespass  for  waste 
against  the  mortgagor  is  not  an  abandonment  of  a  previous  entry 
to  foreclose.*  A  mortgagee  after  commencing  a  foreclosure  by  pub- 
lication under  the  statutes  of  Maine  may  enter  and  take  possession 
of  the  premises  without  waiving  the  proceedings  to  foreclose  ;  ^  and 
if  he  is  ousted  of  his  possession  after  such  entry  he  may  maintain  a 
writ  of  entry  at  common  law,  and  obtain  judgment  for  possession, 
without  waiving  the  foreclosure  commenced  by  publication.^ 

1274.  A  recovery  of  judgment  for  the  mortgage  debt  or  any 
part  of  it  after  foreclosure,  on  the  ground  that  the  value  of  the 
premises  at  the  time  of  the  foreclosure  was  less  than  the  sum  due, 
opens  the  foreclosure."  A  recovery  of  judgment  against  the  mort- 
gagor for  rent  of  the  premises  during  the  three  years  after  entry 
operates,  like  a  recovery  of  judgment  for  the  debt,  to  open  the 
foreclosure.^ 

After  foreclosure  is  complete,  a  promise  or  agreement  made  by 
the  mortgagee  to  receive  the  debt  and  release  the  land  cannot  be 
enforced  unless  made  on  a  legal  and  sufficient  consideration.^ 

1275.  If  by  accident  or  mistake  the  time  of  redemption  goes 
by,  the  person  entitled  to  redeem  must  not  delay  in  seeking  relief. 
Ordinarily  the  foreclosure  of  a  mortgage  by  entry  and.  three  years' 
possession  is  conckisive,  both  in  law  and  equity,  and  will  not  be 
disturbed  without  good  cause  shown.  Where  a  bill  in  equity  to 
redeem  was  brought  on  the  day  before  foreclosure  would  have  be- 
come absolute,  and  by  reason  of  being  brought  in  the  wrong  county 

1  Fletcher  v.  Gary,  103  Mass.  475.  *  Page  v.  Robinson,  10  Gush.  99. 

2  §1287;  Beavin  I'.  Gove,  102  Mass.  298  ;        6  Concord   Union   Mut.    F.    Ins.    Go.    v. 
Deveus  v.  Bower,  6   Gray,   126;  Mann  v.    Woodbury,  45  Me.  447,  4.53. 

Earle,  4  Gray,  299 ;  Merriam  v.  Merriam,  6  ^  Stewart  v.  Uavis,  63  Me.  .539. 

Gush.  91  ;  Fletcher  v.  Gary,  103  Mass.  475  ;  ^  Massachusetts,  P.  S.  1882,  ch.  181,  §  42. 

Page  V.  Robinson,  10  Gush.  99  ;  Dorrell  v.  Suit  to  redeem  must  be  brought  within  one 

Johnson,  17  Pick.  263.  year  after  the  recovery  of  the  judgment. 

'^  Fay  V.  Valentine,  5  Pick.  418;  Smith  »  Morse  v.  Merritt,  110  Mass.  458. 

V.  Kelley,  27  Me.  237,  46  Am.  Dec.  595;  »  Smalley  v.  Hickok,  12  Vt.  153. 
Tufts  V.  Maines,  51  Me.  393.  - 

211 


§  1275.]  FORECLOSURE   BY   ENTRY   AND   POSSESSION. 

was  dismissed,  and  there  was  no  tender,  or  agreement  to  extend 
the  time  of  redemption,  the  court  refused  to  open  the  foreclosure 
on  a  new  bill  brought  nearly  a  year  after  the  dismissal  of  the  for- 
mer one.^ 

1  Webb  V.  Nightingale,  14  Allen,  374. 

212 


CHAPTER   XXIX. 


rOKECLOSURE    BY   WRIT   OF   ENTRY. 


I.  Nature  of  and  where  used,  1276-1279. 
II.  Who  may  maintain,  1280-1289. 
III.  Against    wliom    the    action    may    be 
brought,  1290,  1291. 


IV.  The    pleadings    and    evidence,    1292- 
1295. 
V.  The  defences,  1296-1305. 
VI.  The  conditional  judgment,  1306-1316. 


I.  Nature  of  and  where  used. 

1276.  The  process  of  foreclosure  by  a  writ  of  entry  as  used 
in  Massachusetts  and  Maine,  although  in  form  a  suit  at  law,  is  in 
effect  a  bill  in  equity.  When  used  for  this  purpose  the  technical 
rules  applicable  to  this  action  at  common  law  are  not  in  all  respects 
followed,  A  judgment  does  not  necessarily  give  possession  ;  it 
provides  for  this  only  upon  the  default  of  the  owner  of  the  equity 
of  redemption  to  perform  the  condition  of  the  mortgage  within  a 
specified  time.  The  amount  due  on  the  mortgage  for  which  condi- 
tional judgment  is  entered  is  ascertained  according  to  equity  and 
good  conscience,  and  by  the  same  rules  as  this  amount  is  deter- 
mined in  a  bill  in  chancery  to  redeem  the  same  mortgage ;  inso- 
much that  such  conditional  judgment  is  conclusive  evidence,  on  the 
hearing  of  a  subsequent  bill  to  redeem  the  same  mortgage,  of  the 
amount  due  on  it.i 

This  process  is  used  only  in  those  States  in  which  foreclosure  is 
effected  by  entry  in  pais  and  possession. 

1  Holbrook  v.  Bliss,  9  Allen,  69 ;  Fletcher  and  enter  up  judgment  for  the  just  debt  and 

V.    Gary,   103   Mass.   475,  479;  Palmer   v.  damages,  and  to  award  execution  accord- 

Fowley,  5  Gray,  545 ;  Sparhawk  v.  Wills,  iugly ;  only  in  real  actions  upon  mortgage, 

5  Gray,  423,427;  Walcutt  v.  Spencer,  14  or  bargain  and  sale,  with  defeasance,  the 

Mass.  409  ;  Amidown  v.  Peck,  11  Met.  467  ;  judgment  to  be  conditional  that  the  mort- 

Peck  V.  Ilapgood,  10  Met.  172;  Doten  v.  gagor  or  vendor,  or  his  heirs,  executors,  or 

Hair,  16  Gray,  149.     In  Massachusetts,  by  administrators,  do   pay  unto   the  plaintiff 

the  Prov.  Stat,  of  10  Wm.  III.  ch.  14,  entitled  such  sum  as  the  court  shall  determine  to  be 

"An  act  for  hearing  and  determining  of  justly  due    thereupon,  within  two  months' 

cases  in  equity,"  the  courts,  in  all  cases  of  time  after  judgment   entered   up   for   dis- 

"  forfeiture  of  estates  on  condition,  executed  charging  of  such  mortgage  or  sale  ;  or  that 

by  deed  of  mortgage,  or  bargain  and  sale,  the   plaintiff  recover  possession  of   the  es- 

with  defeasance,"  were  empowered  "to  mod-  tate   sued   for,   and   execution  be   awarded 

erate  the  rigor  of  the  law,  and,  on  consider-  for  the  same."    Prov.  Stat.  (ed.  1726)  109. 

ation  of  such  cases  according  to  equity  and  This  was  reenacted  in  1785.     St.  1785,  ch. 

good  conscience,  to  chancer  the  forfeiture,  22,  §  1. 

213 


§§  1277-1279.]      FORECLOSURE   BY   WRIT   OF  ENTRY. 

1277.  In  Massachusetts  1  and  Maine,^  instead  of  possession 
obtained  by  entry,  the  mortgagee  may  recover  possession  by  writ 
of  entry,  declaring  on  his  own  seisin,  stating  that  it  is  in  mortgage ; 
and  if  it  appears  that  he  is  entitled  to  possession  for  breach  of  the 
condition,  the  court  on  motion  of  either  party  awards  a  conditional 
judgment,  if  the  defendant  be  the  mortgagor  or  any  one  claiming 
under  him,  that  if  he  within  two  months  after  the  judgment  pays 
to  the  plaintiff  the  sum  found  due  on  the  mortgage  with  interest 
and  costs  the  mortgage  shall  be  void  ;  otherwise  that  the  plaintiff 
shall  have  his  execution  for  possession.  If  but  part  of  the  mort- 
gage money  is  due,  or  the  condition  of  the  mortgage  be  for  the 
doing  of  any  other  thing,  the  terms  of  the  judgment  are  varied  as 
the  case  may  require.^ 

The  action  may  be  brought  by  an  assignee  of  the  mortgagee, 
and  after  his  death  by  bis  executor  or  administrator.  It  may  be 
brought  against  whoever  is  tenant  of  the  freehold,  and  the  mort- 
gagor may  in  all  cases  be  joined  as  a  defendant,  whether  he  then 
has  any  estate  in  the  premises  or  not ;  but  he  is  not  liable  for  costs 
when  be  has  no  estate,  and  makes  no  defence  to  the  suit.  Posses- 
sion obtained  in  this  way  must  be  continued  for  three  years  to  fore- 
close the  right  of  redemption. 

1278.  In  New  Hampshire,  also,  possession  may  be  obtained  by 
a  writ  of  entry  ;  and  when  so  obtained  no  notice  by  publication,  as 
in  the  case  of  an  entry  in  pais,  is  necessary.  Actual  possession 
continued  one  year  completes  the  foreclosure.^  The  process  should 
be  against  the  party  in  possession  claiming  title.^  The  judgment 
is  conditional,  that  if  the  mortgagor  shall  pay  the  sum  found  due 
within  two  months  after  judgment  rendered,  with  interest,  the  judg- 
ment shall  be  void,  otherwise  a  writ  of  possession  shall  issue.^ 

1279.  In  Rhode  Island,  instead  of  a  writ  of  entry  for  obtaining 
possession  of  tbe  mortgaged  premises,  an  action  of  ejectment,  or  of 
trespass  and  ejectment,  is  used  for  the  purpose.  In  such  action, 
where  a  right  of  redemption  is  shown,  the  court  ascertains  the  sum 
due  on  the  mortgage,  and  renders  a  conditional  judgment,  that  if 
the  mortgagor,  his  heirs,  executors,  administrators,  and  assigns,  shall 
pay  to  the  plaintiff,  or  deposit  in  the  clerk's  office  for  him,  the  sum 

1  P.  S.  ch.  181,  §§  1-11.  foreclosure  is  ineffectual  without  such  rec- 

2  R.  S.  1883,  ch.  90,  §§  8,  9,  10,  13.  ord.     Bird  y.  Keller,  77  Me.  270. 

3  See  Stewart  i;.  Clark,  11  Met.  384,  389;  «  P.  S.  1891,  ch.  139,  §  14;  Downer  v. 
Holbrook   v.   Bliss,   9   Allen,  69,  73.     An  Clement,  11  N.  H.  40. 

abstract  of  the  writ  of  possession,  with  the        ^  Green  v.  Cross,  45  N.  H.  574,  578. 
time  of  obtaining   possession,  must  be  re-        ^  P.  S.  1891,  ch.  229,  §  8. 
corded.    Maine :  R.  S.  1883,  ch.  90,  §  3.    A 

214 


WHO   MAY   MAINTAIN.  [§§  1280,  1281. 

adjudged  due,  witliin  two  months  from  the  entry  of  the  judgment, 
with  interest,  then  the  mortgage  shall  be  void,  otherwise  that  the 
plaintiff  shall  have  his  writ  of  possession.^ 

II.    Who  may  maintain. 

1280.  A  legal  interest  in  the  realty  is  essential  to  sustain  a 
writ  of  entry  to  foreclose  a  mortgage.  The  action  must  therefore 
be  bi'ought  by  the  mortgagee,  or  his  assignee,  or  by  the  personal 
representatives  of  the  holder  of  the  mortgage  upon  his  decease. 
The  plaintiff  must  hold  the  legal  estate  at  the  time  he  brings  the 
action,  and  it  is  immaterial  that  he  holds  the  title  for  the  benefit  of 
another ;  a  cestui  que  trust  cannot  maintain  the  action.^  If  the 
plaintiff  be  the  assignee  of  the  mortgage,  he  must  show  a  formal 
assignment  of  the  mortgage  to  himself.  An  equitable  assignment 
merely  is  not  sufficient.  Therefore  one  who  holds  a  mortgage  note 
by  indorsement  alone,  without  an  assignment  of  the  mortgage,  can- 
not maintain  the  action  in  his  own  name.  He  has  at  most  only  a 
resulting  trust  in  the  mortgage  title.^  The  mortgagee  after  such 
indorsement,  although  holding  only  a  barren  fee  without  beneficial 
interest,  is  presumed,  in  the  absence  of  any  agreement,  or  anything 
to  indicate  the  intention  of  the  parties,  to  hold  such  title  in  trust  for 
the  indorsee,  to  whom  it  w^ould  be  of  value  ;*  and  the  mortgagee 
might  maintain  a  writ  of  entry  to  foreclose  for  the  benefit  of  such 
assignee  at  his  request.  An  assignee  of  the  debt  merely  has  the 
right  to  use  the  name  of  the  mortgagee  in  a  writ  of  entry  to  enforce 
the  mortgage,  and  is  not  required  to  resort  to  a  court  of  equity 
for  that  purpose,  unless  the  mortgagee  refuses  to  permit  his  name  to 
be  used.^  In  some  States  the  mere  transfer  of  the  note  is  held  to 
carry  with  it  the  mortgage  security,  and  the  right  to  enforce  that ; 
but  the  remedy  in  those  States  is  an  equitable  one  and.  not  by  writ 
of  entry. 

1281.  After  assignment.  —  Although  a  mortgagee  who  has  for- 
mally assigned  his  mortgage  cannot  proceed  to  foreclose  it,  and  a 
judgment  obtained  by  him  would  be  nugatory ,6  yet,  if  the  assignee 
reindorse  and  redeliver  the  mortgage  with  the  assignment  cancelled, 

1  P.  S.  1882,  ch.  216,  §  7.  such  case  the  same  rules  of  law  are  appli- 

2  Sotnes     V.    Skiuner,    16    Mass.    348;  cable  to  the  assessment  of  the  amount  of 
Young  17.  Miller,  6  Gray,  152,  154.  the    conditional  judgment   that   would   be 

3  Johnson  v.  Brown,  31  N.  H.  405;  applicable  if  the  debt  and  mortgage  were 
Young  V.  Miller,  6  Gray,  152,  154.  owned  by  the  mortgagee. 

4  Johnson  r.  Brown,  31  N.  H.  405.  6  Call  v.  Leisner,  23  Me.  25  ;    Gould  v. 
6  Holmes   v.   French,    70   Me.   341.      In    Newman,  6  Mass.  239. 

215 


§  1282.]  FORECLOSURE   BY   WRIT    OF   ENTRY. 

it  never  having  been  recorded,  he  may  still  maintain  the  action.^ 
By  the  cancellation  of  the  assignment  it  is  rendered  useless  and 
ineffectual  to  the  assignee,  and  the  mortgage  remains  in  full  force 
and  effect  in  the  mortgagee,  who  alone  has  any  interest  in  it,  or 
any  right  to  enforce  it, 

1282.  A  mortgagee  who  has  made  an  assignment  absolute  in 
form,  but  really  intended  as  security  for  a  debt,  may  nevertheless 
maintain  an  action  to  foreclose  the  mortgage,  where  the  nature  of 
the  transaction  is  shown  by  an  acknowledgment  by  the  assignee 
that  he  has  "  received  full  satisfaction  for  the  debt  secured  by  the 
above  assignment."  This  acknowledgment  relates  back  to  the 
time  of  the  making  of  the  assignment,  and  is  conclusive  evidence  of 
an  agreement  then  made  by  the  assignee  to  reassign.  The  acknow- 
ledgment is  a  defeasance  of  the  assignment,  and  the  whole  trans- 
action a  mortgage  of  a  mortgage.^ 

The  mortgagee  who  holds  the  legal  title  under  the  mortgage  may 
maintain  the  writ  in  his  own  name  alone,  although  the  security  is 
partly  for  the  benefit  of  other  persons  mentioned  in  the  deed;  as 
where  a  father  conveys  his  homestead  to  his  son,  and  takes  a  mort- 
gage back  in  his  own  name,  to  secure  the  maintenance  of  himself 
and  wife,  and  also  the  payment  to  other  children  of  certain  sums  as 
their  portion  of  their  father's  estate.  He  may  maintain  the  action, 
although  the  object  of  it  be  wholly  to  enforce  the  payment  of  the 
sums  due  to  his  children.^ 

A  mortgagee  who  has  assigned  his  mortgage  and  note  as  col- 
lateral security  for  a  debt  of  his  own,  and  upon  paying  this  has  re- 
ceived a  reassignment  of  the  mortgage,  may  maintain  a  writ  of 
entry  to  foreclose  it,  although  the  note  was  lost  while  in  the  hands 
of  the  assignee.*  It  does  not  matter  that  the  assignee  of  the  mort- 
gage also  purchases  the  equity  of  redemption  on  execution  against 
the  mortgagor;  as  the  mortgage  does  not  merge,  and  the  mortgagee 
has  a  remaining  right,  he  may  recover  possession  of  the  land  by 
writ  of  entry,  without  making  actual  entry .^ 

A  deed  by  the  mortgagee,  whether  a  warranty  or  quitclaim,  passes 
his  title  in  the  same  way  that  an  assignment  would;  and  although 
the  notes  secured  by  the  mortgage  are  not  transferred  at  the  same 
time,  the  grantee  may  maintain  a  writ  of  entry  to  foreclose  the  mort- 

1  Howe  V.  Wilder,  11  Gray,  267.  3  Northy  v.  Northy,  45  N.  H.  141. 

2  Coffin  V.  Loiing,  9  Allen,  154.     But  it  *  Ward  v.  Gunn,  12  Allen,  81. 
would  seem  that  the  nature  of  the  transac-  ^  Xuttle  v.  Brown,  14  Pick.  514. 
tion  in  such  case  could  not  be  shown  by 

parol.     Lincoln  v.  Parsons,  1  Allen,  388. 

216 


WHO   MAY   MAINTAIN.  [§  1283. 

gage,  and  on  producing  the  notes  may  have  a  conditional  judg- 
ment.' 

If  tlie  mortgage  be  assigned  wliile  a  writ  of  entry  is  pending,  the 
assignee  may,  hy  virtue  of  his  assignment,  prosecute  the  suit  in  the 
name  of  tiie  mortgagee  for  his  own  benefit  to  final  judguient,  and 
enter  under  the  writ  of  possession  when  it  is  issued  in  the  same 
manner  as  the  mortgagee  might  have  done.^ 

An  assignee  may  bring  his  action  for  possession,  although  the 
assignment  to  him  has  not  been  recorded  at  the  time  ;  but  it  would 
seem  that  before  trial  of  the  action  it  must  be  recorded,^  in  order 
to  authorize  its  introduction  in  evidence. 

1283.  One  of  two  or  more  joint  mortgagees  or  assignees  of  a 
mortgage  cannot  alone  maintain  a  writ  of  entry  to  foreclose  the 
mortgage.  All  the  persons  having  a  legal  interest  in  the  mortgage 
must  join  in  enforcing  it.*  If  it  be  held  by  them  in  trust,  the 
abandonment  of  the  trust  by  one  of  them  does  not  vest  the  title  in 
the  others,  without  deed  or  legal  process ;  though,  on  the  death  of 
one,  the  survivors  succeed  to  the  rights  and  remedies  to  which  all  of 
them  were  before  jointly  entitled.^  If,  however,  a  mortgage  be 
given  to  secure  separate  debts  or  obligations,  each  mortgagee  is  en- 
titled to  enforce  his  rights  in  his  own  name;  as,  for  instance,  a  mort- 
gage given  for  the  support  of  a  father  and  mother,  "  each  and  sever- 
ally," may  be  enforced  by  the  father  alone.*"  When  a  mortgage  is 
given  to  secure  several  debts,  the  obvious  purpose  is  to  give  to  each 
security  for  his  particular  debt.  If  the  mortgagees  hold  separate 
notes  secured  by  the  same  mortgage,  each  has  a  right  to  enforce  his 
claim  under  the  mortgage,  and  there  is  of  course  no  right  of  sur- 
vivorship.' In  New  Hampshire  it  is  held  that  the  action  must  be 
brought  in  the  names  of  all  the  holders  of  the  several  notes.^ 

Two  mortgages  given  by  the  same  mortgagor  at  the  same  time,  to 
two  mortgagees  severally,  make  them  tenants  in  common,  and  their 
rights  ai'e  the  same  as  if  one  mortgage  had  been  made  to  both,  to 
secure  to  each  his  separate  debt.  Either  of  them  may  enforce  his 
mortgage  by  separate  suit,  or  both  may  join  in  one  suit,  just  as  they 
might  in  a  chancery  suit.^ 

1  Ruggles  v.  Barton,  13  Gray,  506.  5  Blake  v.  Sanborn,  8  Gray,  154;    Bur- 

-  §  808  ;  Hard  v.  Coleman,  42  Me.  182.       nett  i-.  Pratt,  22  Pick.  556. 
■^  Wolcott  I'.  Winchester,  15   Gray,  461,        ^  Gilson  v.  Gilson,  2  Allen,  115. 
466.  "  Burnett  v.  Pratt,  22  Pick.  556. 

*  Webster  v.  Vandeventer,  6  Gray,  428.  '^  Noyes  v.  Barnet,  57  N.  |I.  605 ;  John- 
See  Dewey  v.  Brown,  2  Pick.  387 ;  Aiken  son  v.  Brown,  31  N.  H.  405 ;  Page  v. 
V.  Gale,  37  N.  H.  501.  Pierce,  26  N.  H.  317. 

9  Cochran  v.  Goodell,  131  Mass.  464. 
217 


§§  1284,  1285.]      FORECLOSURE   BY   WRIT   OF   ENTRY. 

If  a  mortgage  be  made  to  an  unincorporated  association,  or  to  a 
firm  by  a  corporate  or  firm  name,  a  writ  of  entry  to  foreclose  it 
must  be  brought  in  the  names  of  the  individuals  who  compose  the 
firm  or  do  business  under  such  general  name.^ 

1284.  Two  mortgages  of  the  same  land  made  by  the  same 
mortgagor,  and  held  by  the  same  assignee,  though  given  at  different 
times  to  different  persons,  may  be  embraced  in  one  suit  of  fore- 
closure, and  a  conditional  judgment  for  the  amount  of  both  debts 
may  be  entered.^  The  judgment  should  properly  specify  the  amount 
due  on  each  mortgage  as  well  as  the  aggregate  amount  due,  so  that 
the  rights  of  any  intervening  third  party  might  be  determined.  If 
the  two  mortgages  embraced  distinct  parcels  of  land,  or  the  debts 
were  due  from  different  persons,  they  cannot  be  united  in  one  suit, 
and  consolidated  in  one  judgment.^ 

1285.  A  second  mortgagee  may  maintain  an  action  to  foreclose 
his  mortgage  against  the  owner  of  the  equity  of  redemption,  although 
such  owner  also  holds  the  first  mortgage.  The  judgment  in  such 
case  would  be  valid  and  effectual  to  foreclose  the  second  mortgage 
as  against  all  titles  subsequent  to  it,  but  qualified  as  to  disturbing 
the  possession  under  the  prior  mortgage.  The  first  mortgagee  has 
the  right  to  hold  the  estate  under  his  mortgage  for  the  purpose  of 
foreclosure  as  against  the  second  mortgagee  ;  but  the  second  mort- 
gagee has  the  right  to  such  possession  as  will  enable  him  to  fore- 
close as  against  the  right  to  redeem  his  second  mortgage.  The  fore- 
closure of  both  mortgages  may  go  on  at  the  same  time :  the  first 
mortgagee  having  such  possession  as  will  operate  to  foreclose  against 
the  right  of  the  second  mortgagee  to  redeem ;  and  the  second  mort- 
gagee having  such  constructive  possession  as  will  operate  to  foreclose 
against  the  right  to  redeem  the  estate  from  his  mortgage.  The  pos- 
session of  each  operates  according  to  his  rights.^ 

In  such  case  it  is,  of  course,  immaterial  that  the  owner  of  the 
equity  of  redemption,  besides  holding  the  first  mortgage,  holds  a 
third  mortgage  or  any  other  interest  in  the  property.  Under  the 
execution  the  second  mortgagee  may  be  put  tempoi-arily  in  posses- 
sion without  an  actual  ouster  of  the  first  mortgagee,  and  such  pos- 
session will  foreclose  all  titles  subsequent  to  the  second  mortgage.^ 

1  Pomeroy  v.  Latting,  2  Allen,  221.  nin  v.  Hazletine,  3  Allen,  324;  Doten  v. 
The  mortgage  in  this  case  was  to  "The  Hair,  16  Gray,  149;  Cochran  v.  Goodell, 
Copake  Iron  Works,"  a  partnership.  131  Mass.  464.     See  Palmer  v.  Powley,  5 

2  Pierce  v.  Balkam,    2  Cush.  374.     See,  Gray,  545. 

also,  Grant  r.^ialway,  122  Mass.  135.  5  Cronin    v.    Hazletine,    3    Allen,    324; 

3  Peck  V.  Hapgood,  10  Met.  172.  George  v.  Baker,  3  Allen,  326. 
*  Kilborn  v.  Robbiiis,  8  Allen,  466;  Cro- 

218 


WHO   MAY  MAINTAIN.  [§§  1286,  1287. 

It  is  all  the  same  whether  the  first  mortgagee  be  in  possession  under 
an  entry  m  pais,  or  by  virtue  of  a  writ  of  possession  issued  under  a 
conditional  judgment  for  foreclosure.^ 

A  mortgagee  of  a  remainder  or  reversion  may  in  like  manner 
maintain  such  action  during  the  lifetime  of  the  tenant  of  the  par- 
ticular estate.^  In  such  case  the  tenant  cannot  be  dispossessed,  but 
the  officer  may,  under  the  execution,  deliver  possession  as  against 
the  mortgagor,  so  as  to  divest  him  of  all  his  legal  title  in  the  land. 
One  joint  owner  of  the  equity  of  redemption,  on  receiving  an  as- 
signment of  the  mortgage,  may  maintain  a  writ  of  entry  and  re- 
cover a  conditional  judgment  against  the  other.^ 

1286.  Homestead,  right.  —  This  action  may  be  maintained  and 
judgment  may  be  rendered  thereon  and  formal  possession  taken, 
although  there  be  an  outstanding  estate  of  homestead.  The  entry 
thus  made  is  sufficient  to  bar  the  right  in  equity  to  redeem  the 
reversionary  estate  after  the  expiration  of  three  years,  though  sub- 
ject to  the  full  enjoyment  of  the  homestead  estate.^ 

If  the  homestead  right  has  been  released  in  the  mortgage,  it  is 
no  defence  to  the  writ  of  entry  to  foreclose  the  mortgage  that  the 
estate  is  sufficient  to  satisfy  the  mortgage  without  having  recourse 
to  the  homestead.^  "  The  power  of  a  court  of  chancery  to  compel 
a  mortgagee  to  resort  in  the  first  instance  to  one  of  several  estates 
mortgaged  is  exercised  only  for  protection  of  the  equities  of  dif- 
ferent creditors  or  incumbrancers,  or  of  sureties,  and  not  for  the 
benefit  of  the  mortgagor.  As  against  him,  the  mortgagee  has  the 
right  to  enforce  the  contract  between  them  according  to  its  terms, 
and  is  not  obliged  to  elect  between  different  remedies  or  securities. 
The  right  of  homestead,  created  by  our  statutes,  is  certainly  entitled 
to  no  higher  degree  of  favor  than  the  courts  have  always  accorded 
to  the  common  law  right  of  dower.  The  case  cannot  be  distin- 
guished in  principle  from  the  ordinary  one  in  which  a  wife,  who 
has  joined  by  way  of  releasing  dower  in  the  mortgage  of  her  hus- 
band, is  held  to  pay  the  whole  mortgage  debt  as  a  condition  of 
asserting  her  right  of  dower  against  the  mortgagee."^ 

1287.  A  mortgagee  who  has  entered  to  foreclose  in  the  pres- 
ence of  witnesses,  and  still  remains  in  possession,  may  nevertheless 
maintain' a  writ  of  entry  against   the   mortgagor  to  foreclose    the 

1  Amidown  v.  Peck,   11    Met.  467,  469;  3  Aiken  v.  Gale,  37  N.  H.  501. 
Walcutt  V.  Spencer,  14  Mass.  409.  «  Doyle  v.  Coburn,  6  Allen,  71. 

2  Pennimany.  Hollis,  13Mass.4'J9;  Colby  &  Searle  v.  Chapman,  121  Mass.  19.     See 
V.  Poor,  15  N.  H.  198;  Palmer  v.  Fowley,  5  §§  731,  1632. 

Gray,  545 ;  Bartlett  v.  Sanborn,  64  N.  H.  ^  Per  Gray,  C.  J.,  in  Searle  v.  Chapman, 
70,  6  Atl.  Kep.  486.  121  Mass.  19. 

219 


§§  1288,  1289.]      FORECLOSURE   BY    WRIT    OF   ENTRY. 

mortgage  ;  ^  and  such  previous  possession  is  not  waived  or  aban- 
doned by  the  commencement  of  the  action,^  though  it  is  upon  de- 
livery of  possession  to  the  mortgagee  upon  an  execution  issued  on 
the  judgment  obtained  in  such  action. ^ 

The  fact  that  a  mortgage  contains  a  power  of  sale  is  no  objec- 
tion to  a  foreclosure  by  writ  of  entry.  The  power  of  sale  is  merely 
a  cumulative  remedy  which  does  not  interfere  with  a  foreclosure  by 
action,  or  by  entry  and  possession."^ 

1288.  If  the  holder  of  the  mortgage  die  before  entry  for  con- 
dition broken,  the  mortgage,  being  personal  assets,  goes  to  his 
executor  or  administrator,  who  alone  can  maintain  an  action  upon 
it.  His  heirs  have  no  such  interest  as  will  give  them  any  right 
of  possession.^ 

1289.  When  right  of  action  accrues.  —  Unless  it  is  expressly 
stipulated  that  the  mortgagor  may  remain  in  possession,  or  the 
necessary  implication  from  the  deed  is  that  he  may  do  so,  the  mort- 
gagee may  at  once,  before  breach  of  the  condition,  and  without 
previous  notice  of  the  suit,  maintain  a  writ  of  entry  for  the  posses- 
sion.6  xhe  provisions  or  conditions  in  the  mortgage  deed  may  be  such 
that  they  will  necessarily  imply  a  covenant  that  the  mortgagor 
may  occupy  so  long  as  he  fulfils  these  conditions,  and  they  may  thus 
constitute  a  good  bar  to  a  writ  of  entry  at  common  law  to  obtain 
possession  ;  ^  thus,  where  the  mortgage  recited  that  the  mortgagee 
liad  conveyed  the  premises  to  the  mortgagor  "  for  the  future  main- 
tenance and  support"  of  the  former,  and  that  the  mortgagor  had 
"  at  the  same  time  reconveyed  the  same  to  the  mortgagee  as  security 
for  such  maintenance  and  support,"  the  condition  being  that  the 
mortgagor  should  support  the  mortgagee,  it  was  held  to  be  a  neces- 
sary implication  from  these  recitals  that  the  mortgagor  should 
retain  possession  so  long  as  he  performed  the  acts,  the  performance 

1  Trustees  v.  Connolly,  157  Mass.  272;  closure  by  publication.     Burgess  ir.  Stevens, 

Beavin  ?•.  Gove,  102  Mass.  298 ;  Merriam  76  Me.  559. 

V.  Merriam,  6  Cush.  91  ;  Devens  v.  Bower,  3  Fletcher  v.  Gary,  103  Mass.  475. 

6  Gray,  126;  Page  v.  Kobinson,  10  Cush.  *  Furbish  r.  Sears,  2  Cliff.  454;  Trustees 

99;    Mann    v.   Earle,   4    Gray,    299,    300;  v.  Connolly,  157  Mass.  272. 

Massachusetts:  P.  S.  ch.  181,  §§  1,  11.  =  Smith  v.  Dyer,  16  Mass.  18;  Dewey  v. 

'■'  Page  V.  Robinson,  10  Cush.  99.     But  Van  Deusen,  4  Pick.  19  ;  Shelton  v.  Atkins, 

in   Maine,    where   a   foreclosure  was  com-  22  Pick.  71.     See  G.  S.  of  Mass.  ch.  96,  §  9, 

menced  by  publication,  and  afterwards,  the  ch.  140,  §  7. 

attorney,   fearing   that   this    might    prove  ^  See  §702;  Hobart  f.  Sanborn,  13  N.  H. 

ineffectual,  brought  suit  on   the  mortgage  226,  38  Am.  Dec.  483  ;  Dearborn  v.  Dear- 

and   obtained    a   conditional    judgment,  it  born,  9  N.  H.  117  ;  Lackey  v.  Holbrook,  11 

was  held  that  the  foreclosure  by  suit  oper-  Met.  458;  Newall  v.  Wright,  3  Mass.  138, 

ated  as    a  waiver  of    the  attempted  fore-  155,  3  Am.  Dec.  98. 

"  Bean  v.  Mayo,  5  Me.  89. 

220 


AGAINST  WHOM   THE   ACTION   MAY   BE   BROUGHT.      [§§  1290,  1291. 

of  which  the  mortgage  was  given  to  secure.^  In  the  absence,  how- 
ever, of  anything  in  the  mortgage  to  show  that  the  mortgagor  is 
entitled  to  possession,  it  cannot  be  shown  by  parol  evidence  that 
it  was  agreed  by  the  parties  that  the  mortgagor  should  retain 
possession  .2 

The  demandant  is  not  obliged  to  give  the  tenant  notice  to  quit 
before  commencing  the  action.^ 

III.  Against  whom  the  Action  may  he  brought. 

1290.  The  action  is  brought  against  the  tenant  of  the  free- 
hold, who  is  a  necessary  party  defendant.*  Action  cannot  be  main- 
tained against  a  tenant  at  will  or  for  years,  if  he  is  willing  to  give 
up  possession  of  the  pi-emises.^  If,  however,  such  tenant  refuses  to 
yield  possession  when  it  is  demanded  of  him,  he  may  be  regarded 
as  a  disseisor,  and,  as  against  the  mortgagee,  the  tenant  of  the  free- 
hold.^ On  this  ground  the  action  may  be  maintained  against  a  pur- 
chaser of  the  equity  of  redemption  after  he  has  conveyed  it  away 
again,  but  still  retains  possession  and  refuses  to  yield  it  on  demand  ; 
but  the  judgment  will  be  for  possession  in  the  ordinary  form,  and 
not  a  conditional  judgment  J 

The  fact  that  the  mortgagors  were  blind,  and  their  father  lived 
with  them,  and  was  the  only  manager  and  efficient  agent  on  the 
premises,  which  he  cultivated  and  improved,  does  not  make  him  a 
tenant  of  the  land  or  liable  to  the  action.^ 

1291.  A  wife  who  has  signed  the  mortgage  merely  in  release 
of  dower  need  not  be  joined  in  the  suit ;  ^  but  if  the  husband  and 
wife  mortgage  her  real  estate  and  continue  in  possession  till  condi- 
tion broken,  they  are  rightly  sued  together. ^'^  A  widow  to  whom 
dower  has  been  assigned  in  the  mortgaged  premises,  though  wrong- 
fully, is  a  tenant  of  the  freehold  if  in  possession.^! 

The  action  cannot  be  maintained  against  the  mortgagor  alone 
after  he  has  conveyed  the  estate  to  a  third  person,  and  the  latter 

1  Wales  V.  Mellen,  1  Gray,  512.  See  maintained  against  a  tenant  at  will.  Keith 
§668.  V.  Swan,   11   Mass.  216;  Fales  v.  Gibbs,  5 

2  Colraan  v.  Packard,  16  Mass.  39.  Mason,  462. 

3  Trustees  v.  Connolly,  157  Mass.  272;  6  Johnson  v.  Phillips,  13  Gray,  198; 
Smith  r.  Johns,  3  Gray,  517,  519.  Wheelwright    v.   Freeman,    12   Met.    154; 

*  Massachusetts:    P.    S.    ch.    181,    §9.  Keith  y.  Swan,  11  Mass.  216;  Hunt  v.  Hunt, 

Maine :  li.  S.  1883,  ch.  90,  §  13  ;  Dooley  v.  17  Pick.  118,  121. 
Potter,  140  Mass.  49,  2  N.  E.  Rep.  235,  per        "^  Johnson  v.  Phillips,  13  Gray,  198. 
Devens,  J.  »  Churchill  v.  Loring,  19  Pick.  465. 

5  Wheelwright  v.  Freeman,  12  Met.  154;        ^  Pitts  v.  Aklrich,  11  Allen,  39. 
Raynham  v.   Snow,  12   Met.  157.     Under        lo  Swan  r.  Wiswall,  15  Pick.  126. 
the  early  laws  of  Massachusetts  it  could  be        ii  Raynham  v.  Wilniarth,  13  Met.  414. 

221 


§  1292.]  FORECLOSURE   BY    WRIT   OF   ENTRY. 

has  conveyed  it  to  the  mortgagor's  wife  to  her  sole  and  separate 
use,  although  he  has  continued  to  occupy  the  premises  with  his  wife. 
She  is  the  tenant  of  the  freehold  and  a  necessary  party  to  the  action. 
The  mortgagor's  possession  must  be  deemed  to  be  permissive  only, 
and  subject  to  and  in  the  right  and  interest  of  his  wife  as  owner  of 
the  fee.i  But  if  a  third  person  be  in  actual  possession  under  a 
lease  for  a  term  of  years  by  a  title  paramount  to  that  of  the  mort- 
gage, the  action  may  be  maintained  against  the  owner  of  the  equity 
of  redemption.^ 

1292,  The  mortgagor  may  always  be  joined  as  a  defendant, 
altliough  he  has  parted  with  all  interest  in  the  premises  before  the 
action  is  brought.  If  he  conveys  his  equity  of  redemption  after 
suit  is  commenced  against  him  as  the  tenant  in  possession,  this  does 
not  defeat  the  action,  but  it  may  proceed  to  judgment  just  the 
same.3  All  persons  coming  in  under  him  after  the  suit  is  commenced 
are  bound  by  the  judgment  and  by  the  possession  taken  under  it. 
Were  it  otherwise,  the  suit  might  be  wholly  defeated  by  successive 
alienations ;  *  and  it  seems  that  those  who  have  acquired  title  under 
the  mortgagor,  after  the  giving  of  the  mortgage  and  before  the 
commencement  of  the  action,  are  equally  bound  by  the  action, 
though  not  joined  as  defendants,  if  the  execution  and  the  proceed- 
ings upon  it  are  duly  recorded.^ 

An  action  may  be  maintained  against  a  mortgagor  to  foreclose  a 
mortgage  not  acknowledged  or  recorded,  for  it  conveys  the  property 
as  between  the  parties.^ 

If  the  mortgagor  has  conveyed  the  land  in  separate  parcels  to 
different  persons,  a  writ  of  entrv  must  be  brought  against  each 
tenant  holding  in  severalty.  A  judgment  against  one  of  them  for 
the  whole  tract  does  not  foreclose  the  rights  of  the  others." 

IV.   77ie  Pleadings  and  Evidence. 

No  attempt  is  made  to  give  any  statement  of  the  pleadings  and 
evidence  applicable  to  this  form  of  action  ;  recourse  must  be  had 

1  Campbell  v.  Bemis,  16  Gray,  485.  '   Varnum  v.  Abbot,  12  Mass.  474;  Fos- 

2  Whittier  v.  Dow,  14  Me.  298.  dick  v.  Gooding,  1  Me.  30,  50 ;  Carll  v.  But- 

3  Straw  V.  Greene,  14  Allen,  206;  Hunt  man,  7  Me.  102,  According  to  a  former 
V.  Hunt,  17  Pick.  118;  Wheelwright  v.  Free-  practice,  the  several  tenants  were  joined  as 
man,  12  Met.  154.  defendants.     4  Dane  Abr.  192.     This  prac- 

*  Hunt  V.  Hunt,  17  Pick.  118.  tice  was  corrected  by  Chief  Justice  Parsons 

5  Hunt  V.  Hunt,  17  Pick.  118  ;  Bobbins  v.  in  Varnum  v.  Abbot,  12  Mass.  474,  7  Am. 
Rice,  7  Gray,  202  ;  G.  S.  of  Mass.  ch.  133,  Dec.  87,  And  see  Taylor  v.  Porter,  7  Mass. 
§  55.  355. 

6  Howard  Mut.  Loan  &  Fund  Associa- 
tion V.  Mclntyre,  3  Allen,  571. 

222 


THE   PLEADINGS   AND   EVIDENCE.         [§§  1293-1295. 

to  the  general  rules  on  these  matters,  and  to  the  practice  of  the 
States  where  this  form  of  foreclosure  is  used.  A  few  points  only 
will  he  noticed. 

1293.  The  declaration  should  allege  the  seisin  to  be  "  in  mort- 
gage." ^  It  should  show  that  a  foseclosure  is  desired,  rather  than 
possession  for  the  purpose  of  taking  the  profits.^  A  judgment  for 
possession  at  common  law  is  entered  unless  a  conditional  judgment 
is  asked  for  by  one  of  the  parties  ;  and  if  the  defendant  be  a  stran- 
ger, or  one  not  claiming  under  the  mortgagor,  the  judgment  will  not 
be  conditional  except  with  the  consent  of  the  plaintiff. 

The  identity  of  the  land  demanded  with  that  described  in  the 
mortgage  is  for  the  judge  sitting  without  a  jury.^ 

1294.  Answer.  —  Any  specific  matter  of  defence  should  be  set 
up  by  answer.  Under  the  general  issue  the  defendant  is  not  al- 
lowed to  show  that  he  was  not  in  possession  of  the  premises  ;  or 
that  they  are  subject  to  a  mortgage  previous  or  paramount  to 
that  held  by  the  demandant;  or  that  they  are  in  possession  of  a 
third  party,  who  has  obtained  a  judgment  for  foreclosure  upon  that 
mortgage.* 

1295.  Evidence.  —  The  demandant  makes  out  a  primd  facie 
case  by  proving  the  execution,  delivery,  acknowledgment,  and 
recording  of  a  mortgage  made  by  a  third  person.^  If  the  demand- 
ant holds  the  mortgage  as  assignee,  he  must  also  prove  the  execu- 
tion and  delivery  of  the  assignment  to  himself,  although  this  be 
not  denied  in  the  plea.^  It  is  not  necessary  to  show  that  the  mort- 
gagor owned  the  land;  he  cannot  dispute  the  mortgagee's  title.  On 
the  production  of  a  note  signed  by  a  husband  and  wife,  with  a  mort- 
gage to  secure  it  assented  to  by  the  husband,  it  is  not  necessary 
to  show  that  she  owned  the  land  in  her  own  rioht." 

The  note  or  bond  secured  by  the  mortgage  should  be  produced, 
although  only  incidentally  in  question.  If  lost,  the  contents  may 
be  proved,  for  the  purpose  of  showing  the  amount  for  which  con- 
ditional judgment  shall  be  entered.^     If  the  bond  offered  in  evi- 

1  G.  S.  of  Mass.  ch.  129,  §  3 ;  ch.  140,  3  Trustees  v.  Connolly,  157  Mass.  272. 
§3.     See  Jackson  on  Real  Actions,  with  *  Amidown  v.  Peck,  11  Met.  467;  Dev- 
Precedents.  ens  v.  Bower,  6  Gray,  126. 

2  Fiedler   v.   Carpenter,  2  Wood.   &  M.  ^  Biirridge  v.  Fogg,  8  Cush.  183. 
211 ;  York  Manuf.  Co.  v.  Cutts,  18  Me.  204  ;  6  Warner  v.  Brooks,  14  Gray,  109. 
Grant  v.  Galway,  122  Mass.  135.     See,  also,  ^  American  Mut.  Life  Ins.  Co.  v.  Owen, 
astopleasbythedefendantjOlneyu.  Adams,  15  Gray,  491. 

7   Pick.   31  ;  Wheelwright  v.  Freeman,  12        8  Ward  v.  Gunn,  12  Allen,  81;  Grimes 

Met.  154;  Richmond  Iron  Works  t;.  Wood-  v.    Kimball,    3    Allen,    518;    Andrews    v. 

ruff,  8  Gray,  447  ;  Webster  v.  Vandeventer,  Hooper,  13  Mass.  472,  475. 

6  Gray,  428;  Rochester  v.  Whitehou.se,  15 

N.  H.  468;  Little  v.  Riley,  43  N.  H.  109.  2'>3 


§  1296.]  FORECLOSURE   BY   WRIT   OF  ENTRY. 

dence  does  not  correspond  to  that  described  in  tlie  mortgage  in 
amount  or  date,  the  variance  may  be  explained  by  parol  evidence.^ 
A  breach  of  the  condition  must  of  course  be  shown. 

V.   The  Defences. 

1296.  Equitable  defences  are  allowed.  As  already  noticed, 
a  writ  of  entry  as  used  in  Massachusetts  and  Maine,  for  the  fore- 
closure of  a  mortgage,  is  in  effect  a  suit  in  equity  rather  than  a 
real  action  at  law,  inasmuch  as  the  plaintiff  is  entitled  only  to  a 
conditional  judgment.^  As  regards  tlie  defences  that  may  be 
taken  from  the  nature  of  the  proceedings,  these  may  be  equitable 
as  well  as  legal,  unless  the  defendant  sets  up  some  title  other  than 
that  of  mortgagor.  In  that  case  his  claim  of  prior  independent 
title  is  tried  and  decided  as  in  the  ordinary  action  by  this  writ. 
Otherwise  the  suit,  so  far  as  regards  the  amount  of  the  judgment 
and  the  conditional  form  of  it,  very  much  resembles  a  bill  in 
equity  when  used  for  the  same  purpose.  "  The  principal  differ- 
ence between  the  process  in  this  point  of  view  and  the  proceed- 
ings for  the  like  purpose  in  the  English  courts  is,  that  here  our 
statute  fixes  the  time  within  which  the  defendant  shall  pay  the 
sum  found  due  on  the  mortgage,  in  order  to  prevent  the  fore- 
closure, instead  of  leaving  it  to  be  limited  in  such  cases  by  the 
courts."  3  The  amount  for  which  the  conditional  judgment  shall 
be  entered  "is  to  be  ascertained  according  to  equity  and  good 
conscience,  and  by  the  same  rules  as  on  a  bill  in  chancery  to  re- 
deem the  same  mortgage."^  Such  judgment,  in  fact,  is  conclu- 
sive evidence  of  the  amount  due  on  a  subsequent  bill  to  redeem 
the  same  mortgage,^  or  in  a  suit  upon  the  note  secured.^ 

In  general  the  same  defences  may  be  made  to  an  action  to  fore- 
close a  mortgage  that  may  be  made  in  an  action  upon  the  note  or 
other  evidence  of  debt  secured  by  the  mortgage,  excepting  only 
the  defence  of   the   statute  of    limitations  ; "  for,  as  already  seen, 

1  Baxter  v.  Mclntire,  13  Gray,  168.     See  this  respect  is  given  in  a  learned  opinion  by 

Edgell  V.  Stanford,  3  Vt.  202.  Judge  Gray. 

In  Massachusetts  the  Supreme  or  Supe-  ^  pgj.  Jackson,  J.,  in  Walcutt  v.  Spencer, 

rior  Court  may  appoint  an  auditor  to  exam-  14  Mass.|409,  411 ;  Jackson  on  Real  Actions, 

ine  the  claims  and  vouchers,  hear  the  par-  49;  Davis  v.  Thompson,   118   Mass.   497; 

ties,  and  make  report  to  the  court.     A  rule  Cochran  v.  Goodell,  131  Mass.  464. 

to  this  effect  includes  a  reference  to  the  au-  *  Per  Gray,  J.,  in   Holbrook  i'.  Blis;;,  9 

ditor  of  a  disputed  boundary  line.    Holmes  Allen,  69.     See,  also,  Freeland  v.  Freeland, 

r.  Turner's  Falls  Lumber  Co.  150  Mass.  53.i,  102  Mass.  475. 

23  N.  E.  Rep.  305.  5  Sparhawk  v.  Wills,  5  Gray,  423,  427. 

'^  See    supra,   §    1276.     In    Holbrook   v.  ^  Fuller  v.  Eastman,  81  Me.  284,  17  Atl. 

Bliss,  9  Allen,  69,  the  history  of  the  law  in  Rep.  67. 

^  Vinton  v.  King,  4  Allen,  562  ;  Brolley 

224 


THE  DEFENCES.  [§§  1297,  1298. 

the  remedy  on  the  mortgage  remains  good  after  an  action  on  the 
debt  is  barred. 1 

A  married  woman  might  show,  in  defence  to  an  action  upon  a 
mortgage  made  by  her,  that  it  is  void  for  want  of  her  husband's 
assent,  or  a  judge's  approval  as  required  by  statute;  but  after  a 
conditional  judgment  has  been  rendered  in  a  suit  in  which  she 
has  appeared  and  pleaded,  she  would  be  estopped  to  set  up  such 
invalidity  in  a  writ  of  entry  by  her  against  the  mortgagee  or  his 
grantee.'^ 

1297.  Want  of  consideration  is  of  course  a  good  defence  ;  for 
in  such  case  there  is  nothing  on  which  to  found  a  conditional  judo-. 
ment,3  and  parol  evidence  is  admissible  to  show  that  no  debt  ever 
existed  between  the  parties  to  the  mortgage.^  The  fact  that  such  a 
mortgage  was  given  for  tlie  purpose  of  defrauding  the  mortgagor's 
creditors  does  not  prevent  his  taking  advantage  of  the  want  of  con- 
sideration. As  regards  such  fraudulent  purpose  the  mortgagee  is 
in  no  better  condition  than  the  mortgagor,  as  he  must  have  parti- 
cipated in  it.5  So  the  fact  that  the  note  and  mortgage  were  ori- 
ginally obtained  by  duress  and  fraud  may  be  shown  ;  or  that  the 
consideration  was  illegal.^  A  bond  fide  assignee  of  the  note  and 
mortgage  before  maturity  might  in  such  cases,  on  the  general  prin- 
ciples applicable  to  negotiable  paper,  recover  when  the  original 
mortgagee  or  an  assignee  after  default  could  not." 

1298.  Payment  of  the  mortgage  debt,  although  not  made  till 
after  breach  of  the  condition,  is  of  course  a  defence  to  a  writ  of 
entry  to  foreclose  the  mortgage.  There  can  be  but  one  satisfaction 
of  a  mortgage  debt.  The  receipt  of  payment  is  a  waiver  of  the 
breach  of  condition.  The  mere  legal  estate  is  not  sufficient  to  sup- 
port the  action,  because  after  the  debt  is  paid  there  can  be  no  con- 
ditional judgment.^     But  the  fact  that  no  money  is  due  upon  the 

V.  Lapham,   13   Gray,   294,  297  ;  Davis   i.-.  5  Wearse  v.  Peirce,  24  Pick.  141.     See 

Bean,  114  Mass.  360;  Hannan  v.  Hannau,  §  619. 

123  Mass.  441,  25  Am.  Rep.  121;  Miuot  v.  6  Vinton   v.   King,  4  Allen,   562.      See 

Sawyer,  8  Allen,  78;  Northy  v.  Nortliy,  45  §§  624,  626. 

N.  H.  141 ;  Ladd  v.  Putnam,  79  Me.  568,  "  Clark  v.   Pease,  41    N.  H.  414.      See 

12  Atl.   Rep.  628;  Fuller  v.  Eastman,  81  §834. 

Me.  284,  17  Atl.  Rep.  67.     See  §  610.  «  Vose  v.  Handy,  2  Me.  322,  11  Am.  Dec. 

1  See  §§  1204, 1205;  Thayer  v.  Mann,  19  101  ;  Slayton  v.  Mclntyre,  11  Gray,  271  ; 
Pick.  535.  Burke  v.  Miller,  4  Gray,  114,  116  ;  Wearse 

2  Freison  v.  Bates  College,  128  Mass.  ;;.  Peirce,  24  Pick.  141,  144;  Wade  u.  How- 
464.  ard,    11    Pick.   289,   297.     And   see   Chad- 

*  Wearse  v.  Peirce,  24  Pick.  141;  Free-  bourne  v.  Rackliff,  30  Me.  354.  "When 
land  V.  Freeland,  102  Mass.  475  ;  Hannan  v.  the  debt  is  paid,  the  whole  substantial  pur- 
Ilannan,  123  Mass.  441.     See  §  612.  pose  is  accomplished  ;  a  mere  naked  seisin, 

*  Hannan  v.  Hannan,  123  Mass.  441.  without  any  beneficial  interest,  remains  in 

VOL.  II.         15  225 


§  1299.]  FORECLOSURE   BY    WRIT    OF   ENTRY. 

mortgage  constitutes  no  defence  if  tlie  condition  be  to  do  any  other 
act,  such  as  to  provide  support,  and  this  has  not  been  performed.^ 
After  payment  the  writ  cannot  be  maintained  even  against  a  third 
person,  and  at  the  request  of  the  mortgagor  by  whom  the  payment 
has  been  made.^  The  debt  is  not  discharged  by  a  tender  made 
after  condition  broken  and  before  the  action  was  brought ;  it  is 
only  in  equity  that  the  mortgagor  can  avail  himself  of  it.  There- 
fore a  tender  after  condition  broken,  if  it  be  not  accepted,  consti- 
tutes no  good  defence  to  the  action.^ 

It  does  not  concern  the  defendant  whether  the  plaintiff  is  prose- 
cuting the  foreclosure  suit  for  his  own  benefit  or  for  the  benefit  of 
another,  unless  in  the  latter  case  payment  in  whole  or  in  part  has 
been  made  to  the  person  equitably  interested;  for  such  payment 
would  be  a  defence.  Otherwise  the  plaintiff,  though  not  benefi- 
cially interested,  is  entitled  to  recover  on  his  legal  title.^ 

The  mortgage  is  not  extinguished  by  an  assignment  of  it  to  an 
attaching  creditor  of  the  mortgagor  to  hold  instead  of  the  attach- 
ment, though  the  mortgagor  procures  the  assignment  by  paying 
tlie  mortgagee  a  sum  equal  to  the  amount  due  on  the  mortgage ; 
and  though  for  a  temporary  purpose  it  is  reassigned  to  the  mort- 
gagee and  afterwards  assigned  back  again  by  him,  it  ma}^  still  be 
enforced.^ 

1299.  Surrender  obtained  by  fraud.  —  If  the  mortgage  has 
not  in  fact  been  paid  or  discharged,  but  delivered  up  to  the  mort- 
gagor together  with  the  note  which  it  was  given  to  secure,  the 
action  may  still  be  maintained  on  proof  that  the  delivery  of  these 
securities  was  obtained  through  the  fraud  of  the  mortgagor  in 
falsely  representing  that  another  note  and  mortgage  which  he  gave 
the  mortgagee  in  exchange  were  good  and  sufficient,  when  in  fact 
they  were  worthless.^  In  such  case  the  action  may  be  maintained 
not  only  against  the  mortgagor,  but  also  against  one  who  has 
purchased  from  him  in  ignorance  of  this  transaction  between  him 
and  the  mortgagee,  and  has  paid  the  purchase-money  partly  to 
the  mortgagor  and  partly  by  taking  up  a   subsequent    mortgage  ; 

the  mortgagee ;  the  legal   seisin  which  he        2  Preseott   v.    Ellingwood,  23    Me.   345. 

holds  results  from  the  application  of  a  strict  And  see  Bailey  v.  Metcalf,  6  N.  H.  156. 
techuical   rule   of  law,  and   any  technical        ^  See  §§  886-892;  Maynard  v.  Hunt,  5 

answer  to  a  claim   thus  formed  is  good."  Pick.   240 ;    Stanley   v.  Kempton,   59  Me. 

The  case  of  Parsons  v.   Welles,   17  Mass.  472. 

419,  so  far  as  it  asserts  that  a  writ  of  entry        <  Sanderson  v.  Edwards,  111  Mass.  335. 
may  be  maintained  on  the  mortgagee's  bare        ^  Sheddy  v.  Geran,  113  Mass.  378. 
legal  title,  is  overruled.  6  Grimes  v.  Kimball,  3  Allen,  518. 

^  Mason  v.  Mason,  67  Me.  546. 

226 


THE   DEFENCES.  [§§  1300-1303. 

because,  the  mortgage  remaining  undischarged  of  record,  the  pur- 
chaser had  constructive  notice  that  it  was  still  in  force  as  an  ex- 
isting incumbrance,  and  having  such  notice  he  cannot  insist  that 
in  equity  his  claim  sliall  prevail  over  the  legal  title  of  the  mort- 
gagee,^ 

1300.  Usury  may  be  relied  upon  in  defence  to  the  foreclosure 
suit,  in  the  same  manner  and  to  the  same  extent  as  in  a  suit  upon 
the  mortgage  note.^  But  it  must  be  pleaded  and  cannot  be  set  up 
under  the  general  issue.-^  The  mortgagee  will,  however,  be  entitled 
to  a  conditional  judgment  unless  the  legal  penalties  for  the  usury 
exceed  the  whole  debt.*  The  penalties  go  to  reduce  the  amount 
for  which  the  conditional  judgment  will  be  rendered.  If  there  be 
no  usury  in  the  original  transaction,  a  payment  subsequently  made 
to  the  mortgagee  of  a  sum  over  and  above  the  interest  due  on  the 
debt,  in  consideration  of  his  forbearance  for  a  time  to  enter  upon 
the  premises  and  foreclose  the  mortgage,  is  not  usurious,  and  is  not 
deducted  from  the  amount  of  the  debt  in  ascertaining  the  amount 
of  the  conditional  judgment.^ 

1301.  That  no  right  of  action  has  accrued  is,  of  course,  a 
defence  to  the  action.*^ 

1302.  A  defence  may  be  maintained  as  to  a  part  of  the 
premises,  by  showing  a  valid  release  of  the  mortgage  as  to  such 
part,  though  as  to  the  remainder  of  the  premises  there  be  no  de- 
fence.'^ 

1303.  A  purchaser  subject  to  a  mortgage  cannot  set  up 
fraud  in  obtaining  the  mortgage.  If  he  holds  the  premises  by 
a  quitclaim  deed  from  the  mortgagor,  he  cannot  defend  an  action 
to  foreclose  the  mortgage  by  showing  that  the  mortgagee  obtained 
the  mortgage  by  false  and  fraudulent  representations  to  the  mort- 
gagor ;  nor  can  he  for  this  reason  claim  a  reduction  of  the  amount 
for  which  the  conditional  judgment  is  to  be  entered.  If  any  such 
claim  exists  it  must  be  made  by  the  mortgagor,  as  it  does  not  pass 
to  a  purchaser  from  him  by  quitclaim  deed  ;^  though  it  seems  that 
the  former  might  confer  upon  the  latter  the  right  to  question  the 
validity  of  the  mortgage.^ 

1  Grimes  v.  Kimball,  8  Allen,  153.  *  Manahan  u.  Varnum,  11  Gray,  405. 

-  Hart  V.   Goldsmith,  1  Allen,  145,  147  ;        &  §  647  ;  Drury  v.  Morse,  3  Allen,  445. 
Minot  V.  Sawyer,  8  Allen,  78;  Arrington        <*  Pettee  ?;.  Case,  11  Gray,  478. 
r.  Jenkins,   95  N.  C.  462;  Gore  v.  Lewis,        "  Wolcott  v.  Winchester,  15  Gray,  461. 
109   N.  C.   539,    13    S.  E.  Rep.    909.     Sec        »  §§  744,   1807;    Fairfield  v.  McArthur, 

§633.  15  Gray,  526;    Foster  v.   Wightman,   123 

*  §  643;    Little  v.  Eiley,  43  N.  H.  109;  Mass.  100. 
IJriggs  V.  Sholes,  14  N.  H.  262.  9  Bennett  v.  Bates,  94  N.  Y.  354. 

227 


§§  1304-1306.]       FORECLOSURE    BY    WRIT    OF    ENTRY. 

1304.  That  the  mortgagee  has  verbally  promised  not  to  en- 
force the  mortgage,  or  that  the  mortgagor  sliould  hold  the  land 
discharged  of  the  mortgage,  is  no  defence  to  the  action  ;  ^  and  a 
court  of  equity  will  not  restrain  the  prosecution  of  it.  A  legal 
instrument  under  seal  cannot  be  set  aside  by  such  a  verbal  agree- 
ment.^ Moreover,  after  a  suit  to  foreclose  a  mortgage  has  been 
instituted,  the  prosecution  of  it  will  not  be  enjoined,  although  the 
holder  of  the  equity  of  redemption  offers  to  pay  any  sum  that  may 
be  due  under  the  mortgage,  for  that  may  just  as  well  be  determined 
in  the  foreclosure  suit.^ 

1305.  The  defendant  is  not  allo-wed  to  set  up  any  title  ac- 
quired by  him  after  the  commencement  of  the  action  ;  as,  for 
instance,  the  tenant  cannot  defeat  an  action  by  the  holder  of  a 
second  mortgage  by  obtaining  an  assignment  of  the  first  mortgage 
to  himself,  and  offering  by  means  of  this  to  show  a  superior  title. '^ 
But  the  defendant  may  set  up  a  superior  title  acquired  before  the 
commencement  of  the  action,  and  the  title  may  be  tried  as  in  a 
common  law  writ  of  entry  ;  and  if  such  title  is  older  and  better 
than  the  mortgage  title,  he  will  prevail  in  the  suit.  If,  instead  of 
acquiring  such  outstanding  title,  a  stranger  holding  it,  pending  the 
suit,  ousts  him,  or  recovers  the  land  against  him,  the  writ  will  abate 
if  the  facts  are  specially  pleaded.^ 

VI.    The  Conditional  Judgment. 

1306.  The  judgment,  after  determining  the  amount  due  on 
the  mortgage,  is  conditioned  that  if  the  defendant  shall  pay  to 
the  plaintiff  the  sum  so  adjudged  to  be  due,  with  interest  thereon, 
within  two  months  from  the  time  of  entering  it,  then  the  mort- 
gage shall  be  void  and  discharged ;  otherwise  the  plaintiff  shall 
have  his  execution  for  possession.  Possession  gained  in  this  way 
has  the  same  effect  as  an  entry  in  fai%  in  the  manner  already  de- 
scribed, and  if  continued  for  three  years  the  right  of  redemption 
at  the  end  of  that  period  is  forever  foreclosed.  In  such  case  the 
time  limited  begins  to  run  from  the  date  when  the  officer  delivers 
seisin  and  possession  upon  the  execution.  The  officer's  return  on 
the  execution  is  not  conclusive  as  to  the  actiuil  date  of  the  deliv- 
ery of  possession.     Where  it  appeared  that  the  execution  was  dated 

1  Maynard   v.  Hunt,  5  Pick.  240.     And    .see  Den  v.  Vanness,  10  N.  J.  L.  102;    per 
see  Brolley  v.  Lapham,  13  Gray,  294.  Jackson,  J.,  in  Walcutt  v.  Spencer,  14  Mass. 

2  Hunt  V.  Mayuiird,  6  Pick.  489.  409,  411. 

3  Kilborn  v.  Robbins,  8  Allen,  466.  »  Walcutt  i;.  Spencer,  14  Mass.  409.     See, 
*  Hall  V.  Bell,  6  Met.  431  ;  Nash  v.  Spof-    however,  Dorr  v.  Leach,  58  N.  H.  18. 

ford,  10  Met.  192,  43  Am.  Dec.  425.     And 
228 


THE   CONDITIONAL  JUDGMENT.  [§  1307. 

May  6,  1869 ;  and  the  officer's  return  and  the  acknowledgment  of 
possession  were  dated  May  3, 1869  ;  and  the  execution  was  recorded 
June  10,  1869,  —  it  was  apparent  from  the  papers  themselves  that 
June  3  was  the  date  intended  ;  but  the  court  held  that,  whether  this 
was  so  or  not,  the  whole  record  showed  that  possession  was  actually 
taken  on  some  day  between  the  date  of  the  execution  and  the  date 
of  the  record  of  it,  and  for  the  purposes  of  the  case  this  was  all 
that  it  was  necessary  to  determine.^  Evidence  aside  from  the  record 
might  be  resorted  to  when  necessary,  to  show  when  the  possession 
actually  began.  A  voluntary  surrender  of  the  premises  after  judg- 
ment of  foreclosure  does  not  give  possession  under  the  judgment, 
but  merely  ordinary  peaceable  possession  under  the  mortgage.  Pos- 
session under  the  judgment  can  only  be  delivered  on  the  execution.^ 
In  Massachusetts  the  execution  and  the  officer's  return  thereon 
must  be  recorded  in  the  registry  of  deeds,  in  order  that  the  three 
years  necessary  for  foreclosure  shall  run  from  the  time  of  the  de- 
livery of  seisin,  as  against  any  person  other  than  the  parties  to 
the  action  and  their  heirs  and  devisees,  and  those  having  actual 
notice.^ 

The  judgment  will  include  the  entire  mortgaged  land,  although 
as  to  part  of  it  the  tenants  have  a  right  of  redemption.  Their 
remedy  for  this  is  by  a  bill  in  equity .^ 

1307.  The  fact  that  the  demandant  in  a  writ  of  entry  is  a 
mortgagee  does  not  preclude  him  from  maintaining  the  action 
simply  to  try  his  title,  and  to  recover  possession  from  one  who  has 
disseised  him.  When  the  controversy  is  between  a  mortgagee  in 
possession  and  a  stranger  to  the  title  who  has  disseised  him,  the 
statutory  provision  tliat  the  mortgagee  shall  count  on  his  own  seisin 
in  mortgage  has  no  application.  Although  he  has  entered  to  fore- 
close his  mortgage,  he  may  recover  in  a  writ  of  entry  just  as  if  he 
were  the  absolute  owner  in  fee.'^  He  is  not  limited  to  a  conditional 
judgment  except  in  case  he  prosecutes  the  action  for  the  purpose  of 
foreclosing  the  mortgage.*^     If  neither  party  moves  for  a  conditional 

1  Worthy   v.   Warner,    119    Mass.    550;  ^  Lewis   v.   Babb,    15    Mass.   488,  note; 

Dooley  v.   Potter,   140   Mass.  49,  2  N.  E.  Johnson  v.  Brown,  31  N.  H.  405. 

Rep.  2.35,  per  Devens,  J.  s  Simpson  v.  Dix,  131  Mass.  179. 

-  Briggs  ),-.  Sholes,  UN.  H.  262.  6  Boston   Bank   v.   Reed,   8   Pick.   459; 

3  G.  S.  ch.  133,  §  55;  Rohbins  v.  Rice,  Haven  v.  Adams,  4  Allen,  80,  93;  Stewart 

7  Gray,  202.  r.    Davis,  63  Me.  539 ;  Partridge  v.    Gor- 

In  Maine  there  may  be  two  distinct  jiidg-  don,  15  Mass.  486;  Darling  v.   Chapman, 

ments;  one  based  upon  the  title,  the  other  14  Mass.  101  ;  Loud  v.  Lane,  8  Met.  517; 

as  to   the  amount  due.     Ladd  v.  Putnam,  Somes  v.   Skinner,   16  Mass.  348,  3  Pick. 

79  Me.   568,   12  Atl.  Rep.   628;  Fuller  v.  52. 
Eastman,  81  Me.  284,  17  Atl.  Rep.  67. 

229 


§§  1308,  1309.]      FORECLOSURE   BY   WRIT   OF   ENTRY. 

judgment,  judgment  will  be  entered  in  the  common  form.^  The 
mortgagee,  being  already  in  possession  of  a  portion  of  the  mort- 
gaged premises,  may  maintain  a  writ  of  entry  against  the  mortgagor 
for  the  remainder  by  declaring  on  his  own  seisin,  without  naming 
the  mortgage  or  asking  a  judgment  as  upon  a  mortgage  ;  and  the 
defendant  cannot  restrict  him  to  such  a  judgment,  or  object  that 
the  plaintiff  is  attempting  to  foreclose  a  part  only  of  the  mortgaged 
land.2  Whether  the  writ  of  entry  is  brought  for  the  foreclosure 
of  the  mortgage,  or  to  try  the  title  and  recover  possession,  depends 
upon  the  case  disclosed  by  the  pleadings  and  proof,  and  not  upon 
the  form  of  the  writ.^ 

1308.  To  obtain  a  conditional  judgment  the  plaintiff  must 
produce  the  bond  or  note  on  which  the  mortgage  is  founded,  so 
that  it  may  be  known  what  pa^Miients  have  been  made,  and  how 
much  is  due  in  equity  and  good  conscience  upon  the  debt.  If  the 
mortgagee  has  assigned  the  bond  or  note,  and  has  no  interest  in 
the  claim,  there  is  no  reason  wh}^  he  should  have  any  judgment, 
although  he  has  never  assigned  the  mortgage.  The  judgment 
should  only  be  rendered  upon  the  request  of  the  holder  of  the  note 
or  bond,  and  upon  his  producing  it.* 

1309.  The  judgment  should  include  the  whole  amount  due 
and  payable  on  the  mortgage  at  the  time  of  entering  the  judg- 
ment, and  not  merely  the  amount  due  at  the  commencement  of 
the  action.^  It  should  include  the  whole  amount  secured  by  the 
mortgage,  whether  the  debt  be  absolute  or  contingent,  and  evidence 
is  admissible  to  show  what  is  the  actual  amount  secured.*^  It  should 
include  the  costs  in  a  judgment  previously  obtained  upon  the  mort- 
gage debt,  as  well  as  the  costs  in  the  action  upon  the  mortgage.^ 
Neither  is  the  judgment  limited  to  the  amount  of  the  penalty  of  a 
bond  which  the  mortgage  secures.^ 

The  judgment  is  conclusive  as  between  the  parties  of  the  amount 
due  on  the   mortgage,^  though  not  conclusive   against  one  who  has 

1  Provident  Inst,  for  Savings  v.  Burn-  ^  Northy  v.  Northy,  45  N.  H.  141  ; 
ham,  128  Mass.  458.  Stewarts.  Clark,   11    Met.   384;    Mohn  j;. 

2  Treat  v.  Pierce,  53  Me.  71.  And  see  Hiester,  6  Watts,  53;  Carpenter  v.  Car- 
R.  S.  of  Me.  ch.  90,  §  7.  peuter,  6  R.  I.  542. 

3  Blaiichard  ;,'.  Kimball,  13  Met.  300.  epreeiand  v.  Freeland,  102  Mass.  475. 

*  Vose  V.  Handy,  2  Me.  322,  332,  11  Am.  ^  Holmes  v.  French,  70  Me.  341 ;   Hurd 

Dec.  101  ;  Bleihen  v.  Dwinal,  35  Me.  556;  v.  Coleman,  42  Me.  182;  Rawson  v.  Hall, 

Powers  V.  Patten,  71   Me.  583,  586.     And  56  Me.  142. 

see  George  v.  Ludlow,  67  Mich.  176,  33  N.  «  Pitts  v.  Tilden,  2  Mass.  118. 

W.  Rep.  169.     A  motion  for  a  conditional  »  Fuller  v.  Eastman,  81  Me.  284,  17  Atl. 

judgment  must  be  addressed  to  the  court.  Rep.  67. 
It  is  not  a  matter  for  the  jury.     Hadley  v. 
Hadley,  80  Me.  459,  15  Atl.  Rep.  47. 
230 


THE   CONDITIONAL  JUDGMENT.  [§§  1310,  1311. 

purchased  the  equity  of  redemption  before  the  bringing  of  the  writ 
of  entry  .and  is  not  a  party  to  the  action,  on  a  bill  by  him  to  redeem 
the  land.i 

1310.  When  the  condition  of  the  mortgage  is  not  for  pay- 
ment of  a  sum  of  money,  but  is  for  the  performance  of  various 
duties  from  time  to  time  other  than  the  payment  of  money,  a  sim- 
ple conditional  judgment  in  the  usual  form  is  not  all  that  is  neces- 
sary; but  any  decree  which  may  be  made  in  a  suit  in  equity  may 
be  entered  from  time  to  time,  and  as  often  as  necessary,  in  order  to 
accomplish  the  purpose  of  the  mortgage.^ 

In  such  case  the  court  may  liquidate  the  amount  due  upon  the 
mortgage  ;^  as,  where  it  is  conditioned  for  the  support  of  the  mort- 
gagee, judgment  may  be  entered  for  the  amount  of  expense  in- 
curred by  him  in  consequence  of  the  breach  of  the  condition  up  to 
the  time  of  rendering  judgment.*  A  mortgage  provided  that  the 
mortgagor  should  keep  a  cow  for  the  mortgagee  ;  but  he  kept  it  so 
poorly  that  the  mortgagee  was  obliged  to  sell  the  cow.  In  an  ac- 
tion to  foreclose  the  mortgage,  a  conditional  judgment  was  entered 
for  the  cost  of  keeping  a  cow  subsequent  to  the  time  of  the  sale. 
The  mortgagor  not  having  offered  to  keep  another  cow,  or  give  any 
assurance  that  he  would  keep  one  properly,  it  was  not  regarded  as 
necessary  that  the  mortgagee  should  purchase  a  cow  and  ask  the 
mortgagor  to  keep  her,  in  order  to  hold  him  liable  for  the  keeping.^ 

Questions  of  fact  as  to  the  amount  due  may  be  submitted  to  a 
jury.^  Special  issues  may  be  framed  and  questions  proposed  for  this 
purpose,  to  be  tried  and  determined  by  the  jury  under  the  direction 
of  court.'' 

1311.  Payments  made  by  the  mortgagee  for  protection  of  the 
estate,  he  is  entitled  to  have  included  in  the  judgment ;  as,  for  in- 
stance, any  sums  he  has  paid  for  taxes,  premiums  of  insurance,  or 
in  other  ways  for  the  benefit  of  the  mortgagor,  so  far  as  the  mort- 
gage provides  that  such  payments  shall  become  a  charge  upon  the 
estate.^  But  a  mortgagee  who  has  taken  his  mortgage  in  part  pay- 
ment of  the  purchase-money  of  premises  conveyed  by  him  to  the 
mortgagor  at  the  same  time,  by  a  deed  with  full  covenants  of  war- 
ranty, cannot  charge  the  mortgagor  with  a  sum  since  paid  by  him 
to  relieve  the  premises  from  a  prior  mortgage  made  by  him  while 

1  Dooley  v.  Potter,  140  Mass.  49,  2  N.  E.        «  Wilder  v.  Whittemore,  15  Mass.  262. 
Rep.  935.     To  hold  liim  concluded  by  such        ^  Fiske  v.  Fiske,  20  Pick.  499. 

action  would  be  against  first  principles.  '^  Slayton    v.   Mclntyre,    11    Gray,   271, 

2  Stewart  v.  Clark,  11  Met.  384.  275. 

3  Erskine  v.  Townsend,  2  Mass.  493,  3        '  Foss  v.  Hildreth,  19  Allen,  76. 
Am.  Dec.  71.  »  See  §  1080. 

281 


§§  1312,  1313.]   FORECLOSURE  BY  WRIT  OF  ENTRY. 

owner  in  fee  of  the  premises,  by  proof  of  an  oral  agreement  at  the 
time  of  making  the  conveyances  that  the  mortgagor  should  assume 
the  payment  of  the  prior  mortgage,  and  of  a  mistake  in  the  draw- 
ing of  the  deeds.  The  written  deed  must  be  taken  as  proof  of  the 
agreement  of  the  parties.  The  mortgagee  can  avail  himself  of 
such  agreement  and  mistake  only  by  a  bill  in  equity  to  reform  the 
deed.i 

1312.  Indemnity  mortgage.  —  Where  the  condition  of  a  mort- 
gage is  that  the  mortgagor  sliall  pay  such  notes  as  the  mortgagee 
shall  sign  for  his  accommodation,  and  also  a  promissory  note  de- 
scribed in  the  mortgage,  but  the  only  consideration  for  the  mortgage 
and  mortgage  note  is  the  signing  of  an  accommodation  note  which 
the  mortgagee  paid  at  maturity,  on  a  writ  of  entry  to  foreclose, 
the  conditional  judgment  should  be  for  the  amount  of  the  note  paid 
by  the  mortgagee,  with  legal  interest  from  the  time  of  payment ; 
and  even  if  the  mortgage  note  and  the  accommodation  note  be  for 
the  same  amount,  the  transaction  cannot  be  regarded  as  a  loan  of 
that  amount,  or  the  mortgage  note  regarded  as  the  principal  debt, 
so  as  to  carry  a  higher  rate  of  interest  made  payable  by  that  note.^ 
If,  after  an  indemnity  mortgage  is  given,  the  parties  themselves 
agree  upon  the  amount  of  the  liability,  the  judgment  will  be  for 
this  amount,  though  it  be  only  a  part  of  the  original  claim.'^ 

1313.  In  ascertaining  the  amount  of  the  judgment,  claims 
in  set-off  may  be  allowed  if  the}^  are  actually  mutual,  or  if  the 
parties  have  agreed  to  offset  them.^  Accordingly,  where  the  holder 
of  a  mortgage  was  indebted  to  the  mortgagor,  and  orally  agreed 
with  him  that  he  should  have  the  mortgage  for  the  amount  of  the 
debt,  it  was  held  that  the  debt  should  be  offset  against  the  mort- 
gage, although  such  holder  had  assigned  it  to  another  person  upon 
a  secret  trust  to  hold  for  him.^  But  distinct  debts  cannot  be  set 
off  aside  from  any  agreement  of  the  parties.  The  question  is  not 
what  would  be  due  between  the  parties  upon  a  settlement  of  their 
mutual  demands,  but  what  is  due  on  the  mortgage.^  If  there  are 
counter-claims,  which  by  agreement  have  become  an  equitable  set- 
off, they  should  be  proved  at  the  trial.  Merely  presenting  the 
claims  without  proof  on  the  one  side,  or  admission  upon  the  other, 
avails  nothing.'^ 

1  Buggies  V.  Barton,  16  Gray,  151.  5  Holbrook  v.  Bliss,  9  Allen,  69;  Davis 

2  Athol   Savings  Bank  v.  Pomroy,   115    v.  Thompson,  118  Mass.  497. 
Mass.  573.  6  Bird  v.  Gill,  12  Gray,  60. 

8  Bice  V.  Clark,  10  Met.  500.  ''  Davis  v.  Thompson,  118  Mass.  497. 

*  Slayton  f.  Mclntvre,  11  Gray,  271. 
232 


THE   CONDITIONAL   JUDGMENT.  [§§  1314-1316. 

1314.  Joint-tenants.  —  If  two  persons  owning  land  as  tenants 
in  common  mortgage  it  to  secure  the  payment  of  a  debt,  equitably 
as  well  as  legally  due  from  both,  and  one  is  made  to  pay  the  whole 
debt,  he,  by  reason  of  such  paj^ment,  becomes  an  equitable  assignee 
of  the  mortgage  until  the  other  mortgagor  contributes  his  share, 
and  the  mortgagee  may  be  compelled  in  equity  to  execute  an  assign- 
ment to  him.^  If,  after  such  a  mortgage,  one  tenant  makes  a  second 
mortgage  of  his  undivided  half  of  the  same  property  to  secure  his 
own  debt  to  the  same  mortgagee,  who,  after  entering  to  foreclose 
under  this  mortgage,  brings  a  writ  of  entry  against  the  other  ten- 
ant to  foreclose  the  first  mortgage,  the  conditional  judgment  should 
be  for  one  half  of  the  joint  debt:  for  if  this  tenant  were  compelled 
to  pay  the  whole  debt  he  would  be  entitled  to  the  security,  and, 
the  mortgagee  having  taken  possession  of  one  undivided  moiety 
under  the  second  mortgage,  the  result  is  the  same  in  the  end  ;  the 
mortgagee  has  the  benefit  of  all  the  security,  and  circuity  of  action 
is  avoided.^  If  the  money  raised  by  the  first  mortgage  had  been 
for  the  benefit  of  one  debtor  alone,  the  conditional  judgment  against 
him  would  be  for  the  whole  debt,  because  he  would  not  then  be 
entitled  to  any  protection  from  the  security. 

1315.  If  nothing  is  due  to  the  plaintiff  upon  the  mortgage 
he  is  not  entitled  to  any  judgment  at  all,  although,  by  reason  that 
the  mortgage  debt  was  paid  after  it  became  due,  there  has  been  a 
breach  of  the  condition,  and  the  technical  legal  title  is  still  in  the 
mortgagee.^ 

1316.  The  judgment,  with  all  benefit  of  the  security  and  of 
the  possession  taken  under  it,  maybe  assigned.  If  the  mort- 
gage be  formally  assigned,  the  assignee  takes  the  legal  title  ;  if  only 
the  judgment  be  assigned,  he  takes  the  equitable  title  ;  but  in  either 
case  he  has  the  benefit  of  all  the  proceedings  taken  towards  the 
foreclosure  of  the  mortgage.  If  the  assignment  be  made  to  a 
surety,  or  any  person  other  than  the  owner  of  the  equity  who  pays 
the  judgment,  the  payment  does  not  avail  such  owner  as  a  payment 
of  the  mortgage  debt.  Even  without  any  formal  assignment  either 
of  the  judgment  or  of  the  mortgage,  the  surety  would  be  equitably 
subrogated  to  all  benefit  of  both.* 

1  Sargent  V.  M'Farland,  8  Pick.  500.  *  "Worthy   v.   Warner,    119    Mass.    550. 

2  Sargent  v.  M'Farland,  8  Pick.  500.  See,  also,  Hedge  v.  Holmes,  10  Pick.  380. 

3  Slayton  v.  Mclntyre,  11  Gray,  271. 

233 


CHAPTER    XXX. 

STATUTORY     PROVISIONS    RELATING    TO    FORECLOSURE    AND    RE- 
DEMPTION. 

1317.  The  statutes  generally.  —  An  examination  of  the  statutes 
of  the  several  States  in  relation  to  the  foreclosure  of  mortgagee  can 
hardly  fail  to  surprise  one  at  the  great  diversity  of  systems  in  use, 
and  at  the  difference  in  detail  between  those  which  are  based  upon 
the  same  general  principles.^  In  general  it  may  be  said  that  a  bill 
in  equity  for  the  foreclosure  and  sale  of  the  property  is  the  prevail- 
ing method.  But  in  some  States  this  proceeding  is  left  to  the  in- 
herent and.  general  jurisdiction  of  courts  of  chancery,  without  any 
statutory  regulations  whatever.  Formerly  the  general  principles 
of  equity  were  considered  sufficient  for  conducting  and  determining 
the  suit  in  all  cases,  and  there  were  statutes  regulating  it  in  hardly 
any  of  the  States.  Gradually,  however,  the  different  States  have 
enacted  provisions  covering  the  whole  proceeding  of  foreclosure, 
so  that  now  this  is  wholly  left  to  the  general  equitable  jurisdiction 
and  discretion  of  the  courts  in  chancery  only  in  one  State,  where  the 
common  mode  of  foreclosure  is  by  bill  in  equity ;  though  in  several 
other  States,  as  in  Massachusetts  and  Pennsylvania,  where  a  fore- 
closure in  equity  is  allowed  only  in  exceptional  cases  when  the 
modes  in  common  use  are  inadequate,  the  proceedings  are  under 
the  general  equitable  jurisdiction  of  the  court.  The  statutes  in 
some  States  still  leave  much  to  the  equitable  discretion  of  the 
court ;  while  in  others  such  discretion  is  altogether  supplanted  by 
provisions  which  cover  the  whole  subject  in  detail. 

Aside  from  the  provisions  relating  directly  to  the  mode  of  fore- 
closure, and  the  rights  of  the  parties  before  and  after  foreclosure 
is  effected,  a  fundamental  change  has  been  made  in  the  manner  of 
judicial  procedure  in  several  States,  which  should  be  kept  in  mind 
in  examining  the  statutes  and  decisions  of  these  States  upon  this 
subject. 

1  This  subject  well   illustrates  the  need  approach    to    uniformity,   throughout   the 

and  use  of  a  legal  reform  which  shall  have  United  States.     See  article  by  P.  N.  Bow- 

for  its  object   a  system    of  jurisprudence  man,  in  3  Southern  L.  Rev.  573,  on  Inter- 

which  shall  be,  if  not  uniform,  at  least  an  State  Revision  and  Codification. 

234 


FORECLOSURE   AND   REDEMPTION.         [§§  1318-1320. 

1318.  Codes  of  procedure.  —  The  State  of  New  York,  in  1848, 
adopted  a  code  of  procedure,  the  fundamental  principle  of  which  is 
contained  in  the  provision,  tliat  "  the  distinction  between  actions  at 
law  and  suits  in  equity,  and  the  forms  of  all  such  actions  and  suits 
heretofore  existing,  are  abolished  ;  and  there  shall  be  in  this  State 
hereafter  but  one  form  of  action  for  the  enforcement  or  protection 
of  private  rights  and  the  redress  of  private  wrongs,  which  shall 
be  denominated  a  civil  action."  ^  The  Code  does  not  abolish  the 
distinction  between  law  and  equity,  which  is  too  deeply  impressed 
upon  the  jurisprudence  of  the  country  to  be  done  away  with  in  any 
State  by  any  enactment.  The  civil  action  is  an  equitable  proceed- 
ing, where  formerly  it  would  have  been  a  bill  in  equity.  The  ac- 
tion for  foreclosure  under  the  Code  is  an  equitable  proceeding  as 
distinguished  from  an  ordinary  one,  and  is  governed  by  the  estab- 
lislied  principles  of  equity  except  where  statutes  regulate  it ;  and 
these  statutes  in  general  are  only  embodiments  of  established  prin- 
ciples of  equity.  So,  therefore,  foreclosure  remains  an  equitable 
remedy,  although  it  is  obtained  under  a  new  name  and  form.  This" 
provision  of  the  New  York  Code,  quoted  above  as  comprehending 
the  whole  system,  has  been  enacted  in  substance,  and  generally  in 
the  same  words,  in  Arizona  Territory,  Arlvansas,  California,  Colo- 
rado, Connecticut,  Florida,  Idaho,  Indiana,  Iowa,  Kansas,  Kentucky, 
Minnesota,  Missouri,  Montana,  Nebraska,  Nevada,  North  Cai'olina, 
North  Dakota,  Ohio,  Oklahoma  Territory,  Oregon,  South  Carolina, 
South  Dakota,  Utah  Territory,  Wisconsin,  and  Wyoming  ;  although, 
in  Arkansas,  Iowa,  Kentucky,  and  Oregon,  proceedings  in  equity 
are  kept  distinct  from  actions  at  law. 

1319.  In  this  chapter  a  statement  will  be  given  of  the  stat- 
utory provisions  of  each  State  in  relation  to  the  foreclosure  and 
redemption  of  mortgages,  excepting  only  such  provisions  as  relate 
to  power  of  sale  mortgages,  and  trust  deeds  with  powers  of  sale 
in  the  nature  of  mortgages,  and  the  provisions  relating  to  fore- 
closure by  entry  and  possession  used  in  some  of  the  New  England 
States.  Frequently,  where  the  mode  and  form  of  proceedings  to 
foreclose  are  not  regulated  by  statute,  these  are  stated  upon  the 
authority  of  the  decisions  of  the  courts.  In  the  notes  are  given 
the  judicial  interpretations  of  the  more  important  provisions  of 
these  statutes^  and  especially  such  decisions  as  illustrate  the  local 
laws  rather  than  general  principles  everywhere  applicable. 

1320.  A  mortgage  cannot  be  foreclosed  by  a  special  statute 
enacting  that  the  mortgage  has  been  foreclosed,  or  that  it  shall  be 

1  Code  of  Civ.  Pro.  §  69. 

235 


§§  1321,  1322.]       STATUTORY   PROVISIONS   RELATING   TO 

foreclosed  in  case  the  debt  be  not  paid  within  one  year  from  the 
passage  of  the  act.^  Such  a  statute  would  be  in  substance  and 
effect  a  judicial  decree.  It  is  not  properly  a  legislative  act.  It  is, 
therefore,  unconstitutional  under  a  government  in  which  the  legis- 
lative and  judicial  powers  are  vested  in  different  bodies,  and  also  in 
violation  of  the  Constitution  of  the  United  States  as  impairing  the 
obligation  of  the  contract  between  the  parties  to  the  mortgage, 
whereby  the  mortgagor  had  the  right  to  redeem  according  to  the 
general  laws  of  the  State. 

1321.  The  law  in  force  when  the  mortgage  was  executed 
must  be  followed  in  foreclosing  it,  though  there  be  a  change  in 
the  mean  time.  The  remedy  so  provided  becomes  a  part  of  the 
contract  of  the  parties,  and  any  change  by  statute  substantially 
affecting  it,  to  the  injury  of  the  mortgagee,  is  held  to  be  a  law  im- 
pairing "the  obligation  of  the  contract,"  within  the  meaning  of  the 
Constitution  of  the  United  States.  Thus  a  law  whicli  provided 
that  the  equitable  estate  of  the  mortgagor  should  not  be  extin- 
guished for  twelve  months  after  a  sale  under  a  decree  in  chancery, 
and  which  pi-events  any  sale  unless  two  thirds  of  the  amount  at 
which  the  property  has  been  valued  by  appraisers  shall  be  bid 
therefor,  cannot  be  applied  in  the  foreclosure  of  a  mortgage  exe- 
cuted before  the  statute  was  enacted  ;  but  such  mortgage  must  be 
foreclosed  according  to  the  law  existing  when  it  was  executed.^ 

1322.  Alabama.  —  Foreclosure  is  by  bill  in  equity.^  The  de- 
cree has  the  force  and  effect  of  a  judgment,  and  execution  may 
issue  after  the  property  has  been  sold,  the  sale  confirmed,  and  the 
balance  ascertained  by  decree  of  court.  Before  so  provided  by 
statute,  it  was  held  that  the  balance  of  the  debt  could  only  be 
enforced  at  law.^  The  proceeding  is  one  not  in  rem  but  m  j:»erso- 
nam,  and  those  who  are  not  parties  to  it  are  not  bound  by  the 
decree.^     A   strict  foreclosure  may  be  decreed  in  proper  cases,  as 

1  Ashuelot  R.  R.  Co.  i-.  Elliot,  52  N.  H.  constitutional ;   Von  Biuimbach  v.  Bade,  9 

387  ;  Martin  v.  Someiville    Water   Power  AVis.  559,  76  Am.   Dec.  283  ;  Starkweather 

Co.  27  How.  Pr.  161.  v.  Hawes,  10  Wis.  125  ;  but  not  applicable 

-  Bronson  v.  Kinzie,  1   How.  311  ;    Wil-  to   pending    actions.      Ogden   v.    Glidden, 

liamson  v.  Doe,  7  Blackf.  12;  McCracken  9  Wis.  46;    Diedricks  v.  Stronach,  9  Wis. 

V.  Haywanl,  2  How.  608  ;  Clark  y.  Reyburn,  548. 

8   Wall.  318,  322;    Ogden  v.  Walters,  12  ^  Code   1886,   §§  1879-1891.     Power  of 

Ivans.  282.      See    Dow    v.   Chamberlin,    5  sale  mortgages   are  now   in  common   use. 

McLean,   281.     In  Wisconsin,   however,  a  See  §  1723. 

statute  providing  that  in  foreclosure  suits  *  Hunt  v.  Lewin,  4  Stew.  &  P.  138. 

the   defendant  shall    have    six   mouths   to  ^  Hunt  v.  Acre,  28  Ala.  580;  Boykin  v. 

answer,  and  that  there  should  be  six  mouths'  Rain,  28  Ala.  332,  65  Am.  Dec.  349 ;  Duval 

notice  of  the  sale  after  judgment,  was  held  v.  McLoskev,  1  Ala.  708. 

236 


FORECLOSURE   AND    REDEMPTION.  [§  1322. 

where  a  mortgagee  has  obtained  a  release  of  the  equity  of  redemp- 
tion of  property  which  is  worth  nothing  above  tlie  debt,  and  he 
desires  to  quiet  the  title.^ 

The  fact  that  a  power  of  sale  is  conferred  upon  the  mortgagee 
does  not  deprive  a  court  of  chancery  of  its  jurisdiction  to  foreclose. 
The  fact  that  he  is  incapable  of  purchasing  at  his  own  sale  is  a 
reason  why  this  jurisdiction  should  be  retained.^ 

When  real  estate  is  sold  under  a  decree  in  chancery,  deed  of 
trust,  or  power  of  sale  in  a  mortgage,  it  may  be  redeemed  within 
two  years.  The  possession  of  the  land  is  given  to  the  purchaser 
within  ten  days  after  the  sale  by  the  debtor,  if  in  his  possession, 
on  demand  of  the  purchaser.^  If  the  land  is  in  the  possession  of  a 
tenant,  notice  to  him  by  the  purchaser,  or  his  vendee,  of  the  pur- 
chase, after  the  lapse  of  ten  days  froui  the  time  of  sale,  vests  the 
right  of  possession  in  him  in  the  same  manner  as  if  such  tenant 
had  attorned  to  him.  The  debtor  in  order  to  redeem  must  pay 
the  purchase-money,  with  interest  at  the  rate  of  ten  per  cent,  per 
annum,  and  all  lawful  charges.*  If  the  purchaser  refuses  to  restore 
possession  to  the  debtor,  the  latter  may  recover  possession  by  suit 
for  unlawful  detainer.  Judgment  creditors  may  redeem  in  like 
manner,  upon  further  offering  to  credit  the  debtor  upon  a  subsist- 
ing judgment  with  at  least  ten  per  cent,  of  the  amount  originally 
bid  for  the  land.  If  the  purchaser  offers  to  credit  the  debtor  on 
his  judgment  a  like  amount  he  may  retain  the  land,  unless  the 
creditor  makes  a  further  oiTer  to  credit  an  additional  sum  of  not 
less  than  ten  per  cent,  as  before,  to  which  the  purchaser  may  re- 
spond, if  he  choose,  with  a  like  offer.  Que  judgment  creditor  may 
in  like  manner    redeem   from    another.^      Any    person    redeeming 

1  Hitchcock  V.  U.  S.  Bank,  7  Ala.  386.        after  dissolution,  has  the   right  to  redeem 

2  Carradine  i'.  O'Connor,  21  Ahi.  573;  the  whole.  Lehman  i;.  Moore,  93  Ala.  186, 
Marriott  v.  Givens,  8  Ala.  694;  McGowan    9  So.  Eep.  590. 

I'.   Branch    Bank   at   Mobile,   7  Ala.   823;  *  A  bill  to  redeem  which  fails  to  make 

Ala.  Life  Ins.  &  Trust  Co.  v.  Pettway,  24  tender  of  the  purchase-money,  with  interest 

Ala.  544.  thereon  and  other  lawful  charges,   is   de- 

3  A  mortgagor  seeking  to  enforce  his  murrable.  Beebe  v.  Buxton  (Ala.),  12  So. 
statutory  right  to  redeem  must  allege  and  Rep.  567.  The  money  must  be  paid  into 
prove  that  he  delivered  possession  to  the  court.  Spoor  v.  Phillips,  27  Ala.  193; 
purchaser  within  ten  days.     This  involves  Caldwell  v.  Smith,  77  Ala.  157. 

the  removal  of  himself,  his  family,  personal  &  None  but  judgment  creditors  have  this 

effects,  servants,  and  all   members  of   his  right.      Owen  v.   Kiipatrick  (Ala.),  11  So. 

household,  and  all  persons  except  tenants,  Eep.   476.     A    judgment  creditor   of    one 

who  may  attorn.     Nelms  v.  Kennon,  88  Ala.  partner,  who  alone  owned  land  mortgaged 

329,  6  So.  Bep.  744.  by  a  firm,  may  redeem.     Florence    Land 

Where  partnership  land   has   been    sold  Co.  v.  Warren,    91    Ala.  533,  9   So.    Kep. 

under  a  power  in  a  mortgage,  one  partner,  384. 

237 


§§  1322  a,  1323.]     statutory  provisions  relating  to 

must  pay  to  the  person  in  possession  the  value  of  all  permanent 
improvements  made  by  him  after  he  acquired  title.^ 

1322  a.  Arizona  Territory.^ —  The  judgment  for  foreclosure  is 
tliat  the  plaintiff  recover  his  debt  and  costs  with  a  foreclosure  of 
his  lien,  and  that  an  order  of  sale  shall  issue  to  the  sheriff  or  any 
constable  of  the  county  directing  a  sale  as  under  execution,  and 
to  satisf}^  any  balance  remaining  unpaid  out  of  other  property.  If 
the  debt  for  which  the  mortgage,  lien,  or  incumbrance  is  held  be 
not  all  due,  so  soon  as  sufficient  of  the  property  has  been  sold  to 
pay  the  amount  due  with  costs,  the  sale  must  cease  ;  and  after- 
ward, as  often  as  more  becomes  due  for  principal  or  interest,  the 
court  inay,  on  motion,  order  more  to  be  sold.  But  if  the  property 
cannot  be  sold  in  portions  without  injury  to  the  parties,  the  whole 
may  be  ordered  to  be  sold  in  the  first  instance,  and  the  entire  debt 
and  costs  paid,  there  being  a  rebate  of  interest  where  such  rebate 
is  pi-oper. 

A  mortgage  of  real  property  shall  not  be  deemed  a  conveyance, 
whatever  its  terms,  so  as  to  enable  the  owner  of  the  mortgage  to 
recover  possession  of  the  real  property  without  a  foreclosure  and 
sale.  The  court  may  by  injunction,  on  good  cause  shown,  restrain 
the  party  in  possession  from  doing  any  act  to  the  injury  of  real 
property  during  the  foreclosure  of  a  mortgage  thereon,  or  after  a 
sale  on  execution,  before  a  conveyance. 

All  mortgages  of  real  or  personal  property  with  powers  of  sale 
in  the  mortgagees,  and  all  deeds  of  trust  in  the  nature  of  mortgages, 
may,  at  the  option  of  the  mortgagees  or  cestui  que  trusts,  be  fore- 
closed in  the  proper  courts  and  the  property  sold  in  the  same  man- 
ner in  all  respects  as  in  case  of  ordinary  mortgages. 

1323.    Arkansas.^  —  Mortgages    are    foreclosed    by   complaint 

1  Code  1886,  §§   1879-1891;  Cramer   v.  289,4   So.   Rep.  263,  overruling  Bailey  v. 

Watson,    73   Ala.    127.      The   right  to  re-  Timberlake,  74  Ala.  221.     See,  also,  Wal- 

deera  after  a  sale  can  be  enforced  only  in  den  v.  Speiguer,  87  Ala.  379,  6   So.   Rep. 

equity.     A  tender  does  not  restore  the  title.  81  ;    Commercial,  &c.  Asso.  v.  Parker,  84 

Smith  V.  Anders,  21  Ala.  782.     This  right  Ala.  298,  4  So.  Rep.  268. 

is  a  personal  privilege  of  the  debtor,  and  The  right  cannot  be  waived  by  a  contem- 

cannot  be  asserted  by  a  purchaser  of   his  poraneous    agreement    of    the    mortgagor, 

interest  at    an    execution   sale   before   the  Parmer  v.  Parmer,  74  Ala.  285. 

statutory  right   had  arisen.      Childress  v.  This  right  of  redemption  is  neither  prop- 

Monette,  54  Ala.  317.    The  statutory  right  erty  nor  a  right  of  property.     Otis  v.  Mc- 

of  redemption  can  only  be  exercised  by  the  Millan,  70  Ala.  46.     It  is   not  subject   to 

persons  named  in  the  statute,  and  not  by  levy  and  sale  under  execution.     Junkins  v. 

an   assignee   of  the  equity   of   redemption.  Lovelace,  72  Ala.  303;  Bailey  v.  Timber- 

The  statutory  right  of  redemption  comes  lake,  74  Ala.  221. 

into  existence  only  after  the  equity  of  re-  2  r.  s.  1887,  §§  797,  2358,  3155,  3156. 

demption  proper  has  been  cut  off  by  sale  or  ^  Djg.  of  Stat.  1884,  §§  5168-5172.     For 

foreclosure.     Powers  v.  Andrews,  84  Ala.  form  of    complaint,   see   p.    1276.      Trust 

238 


FORECLOSURE   AND   REDEMPTION. 


[§  1323. 


against  the  mortgagor,  and  the  actual  occupants  ^  of  the  real  estate 
praying  judgment  for  the  debt,  and  that  the  equity  of  redemption 
may  be  foreclosed  and  the  property  sold.  This  must  be  filed  in  the 
county  where  the  premises,  or  some  part  of  them,  are  situate.  The 
proceedings  are  of  an  equitable  character,  and  are  governed  by  the 
principles  and  practice  of  courts  of  equity.^  It  is  not  necessary 
to  enter  an  interlocutory  judgment,  or  give  time  for  the  payment 
of  money,  or  for  doing  any  other  act;  but  final  judgment  may  be 
given  in  the  first  instance.  A  sale  is  ordered  in  all  cases.  Judg- 
ment may  be  rendered  for  the  sale  of  the  property  and  for  the 
recovery  of  the  debt  against  the  defendant  personally. 

All  sales  of  real  property  are  made  on  a  credit  of  not  less  than 
three  nor  more  than  six  months,  or  on  instalments  equivalent  to 
not  more  than  four  months'  ci'edit  on  the  whole,  to  be  determined 
l>y  the  court. ^  In  all  sales  on  credit  the  purchaser  must  execute 
a  bond,  with  a  good  surety  to  be  approved  by  the  person  making 
the  sale,  which  bond  has  the  force  of  a  judgment,  and  a  lien  is 
retained  on  the  property  for  its  price.  If  the  mortgage  be  not  sat- 
isfied by  the  sale,  an  execution  may  issue  against  the  defendant,  as 
in  ordinary  judgments.* 


deeds  are  in  use  here.  Equity  has  no  juris- 
diction of  a  proceeding  in  rem  against  real 
estate  to  foreclose  a  mortgage  upon  it,  with- 
out making  any  person  defendant.  This 
could  be  authorized  only  by  statute.  State 
V.  Bailey,  27  Ark.  473. 

^  The  actual  occupant,  if  there  be  one, 
must  be  made  a  party,  or  the  petition  must 
show  that  there  is  no  occupant,  or  that  the 
mortgagor  is  the  occupant.  McLain  v. 
Smith,  4  Ark.  244;  Jett  v.  Cave,  5  Ark. 
254;  Buckner  v.  Sessions,  27  Ark.  219, 
225  ;  Fletcher  v.  Hutchinson,  25  Ark.  30. 

-  McLain  v.  Smith,  4  Ark.  244  ;  Price  v. 
State  Bank,  14  Ark.  50. 

^  It  is  error  in  the  court  to  direct  a  sale 
for  cash.  It  is  bad  practice  to  appoint  the 
mortgagee  a  commissioner  to  make  the  sale. 
A  disintui'ested  person  should  be  appointed. 
It  is  usual  to  appoint  a  master.  Worsham 
r.  Freeman,  34  Ark.  55. 

*  At  all  sales  of  real  property  under 
mortgages  and  deeds  of  trust,  the  property 
shall  not  be  sold  for  less  than  two  thirds  of 
the  appraised  value.  If  the  property  shall 
not  sell  at  the  first  offering  for  two  thirds 
of  the  amount  of  the  appraisement,  another 
offering  may  be  made  twelve  months  there- 


after, at  which  offering  the  sale  shall  be  to 
the  liighcst  bidder,  without  reference  to  the 
appraisement. 

Redemption.  Ileal  property  sold  here- 
under may  be  redeemed  by  the  mortgagor 
at  any  lime  within  one  year  from  the  sale 
thereof,  by  payment  of  the  amount  for 
which  the  property  was  sold,  together  with 
ten  per  cent,  interest  thereon  and  costs  of 
sale.  When  such  sales  are  to  be  made,  the 
mortgagee,  trustee,  or  other  person  author- 
ized to  make  the  same,  shall,  before  the 
day  fixed  therefor,  apply  to  the  nearest 
justice  of  the  peace  for  the  appointment  of 
appraisers ;  and  such  justice  shall  there- 
upon appoint  three  disinterested  house- 
holders of  the  county,  who  shall  under 
oath  proceed  to  view  and  appraise  such 
property,  and  they,  or  any  two  of  them, 
shall  make  a  report  of  their  appraisement 
in  writing,  and  shall  deliver  it  to  the  per- 
son making  the  sale,  to  be  held  by  him 
subject  to  inspection  by  all  parties  inter- 
ested. Dig.  of  Stat.  1884,  §§  4759-4761. 
Under  this  statute  the  appraisers  have  no 
authority  to  deduct  incumbrances  from  the 
appraised  value,  and  a  sale  under  a  power 
for  less  than    two   thirds  of  the  appraised 

239 


§  1324.] 


STATUTORY   PROVISIONS   RELATING    TO 


1324.  Calif ornia.i  —  Foreclosure  is  a  matter  of  equity  jurisdic- 
tion.^ There  can  be  but  one  action  for  the  recovery  of  any  debt,  or 
the  enforcement  of  any  right  secured  by  mortgage  upon  real  estate.'^ 
In  such  action  the  court  may  by  its  judgment  direct  a  sale  of  the 
incumbered  property,  or  so  much  thereof  as  may  be  necessary,  and 
the  application  of  the  proceeds  of  the  sale  to  the  payment  of  the 
costs  and  expenses  of  sale  and  the  amount  due  to  the  plaintiff,  and 
may  appoint  a  commissioner  to  make  the  sale;*  and  if  it  appear 
from  the  sheriff's  return,  or  the  commissioner's  report,  that  the  pro- 
ceeds are  insufficient,  and  a  balance  still  remains  due,  judgment  can 
then  be  docketed  for  such  balance  against  the  defendant  or  defendants 
personally  liable  for  the  debt,  and  it  becomes  a  lien  on  the  real  estate 
of  such  judgment  debtor,  as  in  other  cases  in  which  execution  may 
be  issued.^  Subsequent  parties  in  interest  not  appearing  of  record 
need  not  be  made  parties  to  the  action,  and  judgment  is  conclusive 
against  them.     Any  surplus  there  may  be  the  court  may  cause  to 

value  is  void.  Ellcnbogen  v.  Griffey,  55  But  this  provision  does  not  prevent  a  new 
Ark.  268,  18  S.  W.  Rep.  126.  Mortgagor  action  on  the  mortgage  note  to  recover  a 
may  redeem  though  the  debt  be  for  pur-  deficiency  left  on  foreclosure.  Blumberg  v. 
chase-money,  but  he  must  pay  the  whole  Birch  (Gal.),  34  Pac.  Rep.  102. 
purchase-money  due.  Wood  v.  Holland,  53  ^  Under  this  provision  a  mortgagee  who 
Ark.  69,  13  S.  W.  Rep.  739.  The  purchaser  had  prosecuted  an  action  in  Ohio  to  final 
of  a  part  of  the  mortgaged  property  cannot  judgment,  upon  a  note  secured  by  mortgage 
redeem  the  en  tire  mortgaged  premises  from  on  land  in  California,  could  not  afterwards 
the  purchaser  at  the  foreclosure  sale.     He    maintain  an  action  for  foreclosure.     Ould 

I'.  Stoddard,  54  Cal.  61. 

Though  there  are  two  deeds  to  the  same 
party  to  secure  the  same  debt,  there  can  be 
but  one  action,  and  failure  to  include  one 
of  such  deeds  in  the  action  extinguishes  the 
mortgages  executed  before  the  passage  of  lien  given  by  it.  There  could  be  no  per- 
the  act.  Hudgius  y.  Morrow,  47  Ark.  515,  sonal  judgment  for  a  deficiency  in  such 
2  S.  W.  Rep.  104;  Robards  v.  Brown,  40  case,  because  the  mortgagee  can  have  such 
Ark.  423.  To  effect  a  redemption  under  a  judgment  only  after  he  has  exhausted 
this  statute  it  must  be  complied  with.  The  his  security  ;  and  having  waived  a  part  of 
complainant  must  make  a  tender  of  the  the  security,  he  is  not  able  to  exhaust  the 
amount  designated  b}-^  the  statute.  He  security.  Hall  v.  Arnott,  80  Cal.  348,  22 
cannot  seek  to  redeem  under  the  mortgage,  Pac.  Rep.  200. 
and  at  the  same  timeaskthat  the  sale  of  the  •*  Stats.  1893,  ch.  101. 
lands  made  by  tlie  purchaser  at  the  mort-        ^  ^g  to  form  of  judgment,  see  Leviston 


succeeds  to  the  mortgagor's  rights  only  in 
the  parcel  purchased.  Pine  Bluff,  &c.  Ry. 
Co.  V.  James,  54  Ark.  81,  15  S.  W.  Rep.  15. 
The  statute  providing  for  redemption 
from  mortgage  sales  has  no  application  to 


gage  sale  be  confirmed  to  a  third  person. 
German  Nat.  Bank  v.  Barham  (Ark.),  22 
S.  W.  Rep.  95. 

1  Code  of  Civil  Procedure,  §§  726-728. 

2  Willis  I.  Farley,  24  Cal.  490.  This 
provision  is  imperative,  and  a  creditor 
holding  a  mortgage  given  as  security  must 


i;.  Swan,  33  Cal.  480.  The  personal  judg- 
ment cannot  be  docketed  before  the  sale. 
Cormerais  v.  Genella,  22  Cal.  116.  It 
should  first  be  ascertained  by  the  court  or 
by  a  master  what  balance  is  due.  Hunt  v. 
Dohrs,  39  Cal.  304;  Guy  v.  Franklin,  5 
Cal.   416.      The  clerk  of  court  may  then 


bring  his  action  of  foreclosure ;  and,  though  without  further  order  docket  the  judgment 

the   security    proves    valueless,   he  cannot  and  issue  a  general  execution.     Leviston  v. 

waive  it  and  bring  an  action  on  the  debt.  Swan,  33  Cal.  480. 

240 


FORECLOSURE    AND   REDEMPTION.  [§  1324. 

be  paid  to  the  person  entitled  to  it,  and  in  the  mean  time  may  direct 
it  to  be  deposited  in  court.  When  the  debt  is  not  all  due,  so  soon 
as  sufficient  property  has  been  sold  to  pay  the  amount  due,  with  costs, 
the  sale  must  cease ;  and  afterwards,  as  often  as  more  becomes  due 
for  principal  or  interest,  the  court  may  on  motion  order  more  to  be 
sold.^  But  if  the  property  cannot  be  sold  in  portions  without  injury 
to  the  parties,  the  whole  may  be  ordered  to  be  sold  in  the  first  in- 
stance, and  the  entire  debt  and  costs  paid,  there  being  a  rebate  of 
interest  where  such  rebate  is  proper. 

The  officer  gives  the  purchaser  a  certificate  of  sale,  stating  the 
price  bid,  the  whole  price  paid,  and  whether  subject  to  redemption. 
Redemption  may  be  made  by  the  judgment  debtor,  or  his  successor 
in  interest  in  the  whole  or  any  part  of  the  property  ;  or  by  a  creditor 
having  a  lien  by  judgment  or  mortgage  on  the  property,  or  any  part 
of  it.  Such  creditors  are  called  redemptioners.  The  judgment 
debtor  or  redemptioner  may  redeem  within  six  months  after  the  sale, 
on  paying  the  purchaser  the  amount  of  his  purchase,  with  two  per 
cent,  per  month  thereon  in  addition,  with  any  taxes  the  purchaser 
may  have  paid,  and,  if  the  purchaser  be  a  creditor  having  a  prior 
lien,  the  amount  of  such  lien  with  interest.^  If  a  redemptioner 
redeem,  the  judgment  debtor  or  another  redemptioner  may,  within 
sixty  days  after  the  last  redemption,  again  redeem,  on  paying  the 
sum  paid  on  the  last  redemption,  with  four  per  cent,  thereon  in 
addition."^  And  successive  redemptions  may  be  made  in  the  same 
manner.  If  no  redemption  be  made  within  six  months  after  sale, 
the  purchaser  is  entitled  to  a  conveyance. 

A  purchaser  from  the  time  of  sale,  and  a  redemptioner  till  another 
redemption,  is  entitled  to  receive  from  the  tenant  in  possession  the 
rents  of  the  property  sold,  or  the  value  of  the  use  and  occupation. 
The  amount  received  must  be  credited  on  the  redemption  money  to 
be  paid.^  If  the  purchaser  be  evicted  for  any  irregularity  in  the 
sale,  he  may  recover  the  amount  of  the  purchase-money  with  inter- 
est from  the  judgment  creditor.^ 

When  a  personal  judgment  is  rendered  against  the  defendant,  and 

1  The  decree  may  properly  show  the  pending  the  time  for  redemption,  is  entitled 
amount  due  and  the  sums  yet  to  become  as  successor  In  interest  to  redeem  tlie  mort- 
due.  Bank  of  Napa  y.  Godfrey,  77  Cal.  612,  gage  without  paying  the  amount  of  the 
20  Pac.  Rep.  142.  deficiency.      The  mortgagee,  in  such  case, 

2  Code  of  Civ.  Pro.  §  702,  and  Amend-  is  not  a  creditor  having  a  prior  lien.  Simp- 
ment  to  same,  February  13,  1876,  p.  96.     If  sou  v.  Castle,  52  Cal.  644. 

the  mortgagee  purchases  the  land  at  the  fore-  ^  Code   Civ.  Pro.  §   703;    Amendments, 

closure  sale  for  a  sum  less  than  the  amount  1874,  p.  323. 

of  the  judgment,  and   takes  judgment  for  *  Code  Civ.  Pro.  §  707. 

the   deficiency,    the    mortgagee's    grantee,  *  Code  Civ.  Pro.  §  708. 

VOL.  11.                     16  241 


§  1325.]  STATUTORY   PROVISIONS  RELATING   TO 

also  a  decree  in  equity  awarded  for  the  sale  of  the  property,  the 
plaintiff  may  pursue  either  remedy,  but  he  cannot  use  both  at  the 
same  time.  If  he  enforce  the  execution  on  the  personal  judgment 
first,^  the  money  realized  on  it  must  be  applied  upon  it,  and  a  sale 
of  the  property  under  the  decree  made  for  the  balance,  or  vice  versa? 
The  personal  judgment  does  not  become  a  lien  upon  other  real  estate 
of  the  defendant  until  the  mortgaged  property  has  been  sold,  and 
the  deficiency  of  the  debt  reported  and  docketed  by  the  clerk  of  the 
court.^     It  then  applies  only  for  this  deficiency.* 

When  pai-t  of  the  debt  is  not  due  at  the  time  of  the  decree,  there 
can  be  no  judgment  for  the  recovery  of  the  balance  not  due  from 
the  defendant.  The  decree  should  be  so  modified  as  to  exclude  the 
recovery  of  the  part  of  the  debt  not  due.  The  power  of  the  court 
under  the  statute  is  exhausted  by  decreeing  a  sale  of  the  entire 
property  though  only  part  of  the  debt  was  due.^  In  all  cases  of 
foreclosure  the  attorney's  fee  is  fixed  by  the  court  in  which  the 
proceedings  are  had,  without  reference  to  any  stipulation  in  the 
mortgage. 

1325.  Colorado.^  —  Actions  for  the  foreclosure  of  mortgages  of 
real  property  must  be  tried  in  the  county  in  which  the  subject  of  the 
action,  or  some  part  thereof,  is  situated ;  provided  that,  where  such 
real  property  is  situated  partly  in  one  county  and  partly  in  another, 
the  plaintiff  must  bring  his  action  in  the  county  where  the  greater 
portion  of  such  real  estate  is  situate.  The  court  has  power,  by  its 
judgment,  to  direct  a  sale  of  the  incumbered  property,  or  so  much 
as  may  be  necessary,  and  the  application  of  the  proceeds  of  the  sale 
to  the  payment  of  the  costs  of  the  court  and  expenses  of  the  sale 
and  the  amount  due  to  the  plaintiff;  and  if  it  appear  from  the 
sheriff's  return  that  the  proceeds  are  insufficient,  and  a  balance  still 
remains  due,  judgment  is  docketed  for  such  balance  against  the  de- 
fendant or  defendants  personally  liable  for  the  debt,  and  then  be- 
comes a  lien  on  the  real  estate  of  such  judgment  debtor,  as  in  other 
cases  in  which  execution  may  be  issued.  No  person  holding  a  con- 
versance from  or  under  the  mortgagor,  or  of  the  property  mortgaged, 

1  If  the  plaintiff  takes  a  personal  judg-  closure  of  a  mortgage,  the  proceedings  will 
ment  only,  and  strikes  out  the  prayer  for  a  not  be  stayed  if  the  appeal  bond  fails  to 
sale  of  the  premises,  he  waives  all  right  to  provide  for  the  payment  of  such  deficiency. 
this.     Ladd  v.  Ruggles,  23  Cal.  232.  Spence  v.  Scott,  97  Cal.  181.  30  Pac.  Rep. 

2  Englund  v.  Lewis,  25  Cal.  337.  202 ;  Johnson  v.  King,  91  Cal.  307,  27  Pac. 

3  Rowland  v.  Leiby,  34  Cal.  156;  Rowe  Rep.  644. 

V.  Table  Mountain  Water  Co.  10  Cal.  441.  ^  Taggart  v.  San  Antonio  Ridge  Ditch 

*  Culver  V.  Rogers,  28   Cal.    520;  Cor-  &  Mining  Co.  18  Cal.  460. 

merais  v.  Genella,  22  Cal.  116.     Where  a  ^  Code  of  Civil  Procedure,  §§  25,  252, 

deficiency  judgment  is  rendered  on  the  fore-  254,  in  Session  Laws  1887. 

242 


FORECLOSURE   AND   REDEMPTION.  [§  1326. 

or  having  a  lien  thereon,  which  conveyance  or  lien  does  not  appear 
on  record  in  the  proper  office  at  tlie  time  of  the  commencement  of 
the  action,  need  be  made  a  party  to  such  action  ;  and  the  judgment 
therein  rendered,  and  the  proceedings  tlierein  had,  are  as  conclusive 
against  the  party  holding  such  unrecorded  conveyance  or  lien  as  if 
he  had  been  made  a  party  to  said  action,  and  in  all  respects  have 
the  same  force  and  effect.  If  the  debt  for  which  the  mortgage,  lien, 
or  incumbrance  is  held  be  not  all  due,  so  soon  as  sufficient  of  the 
property  has  been  sold  to  pay  the  amount  due  with  costs  the  sale 
must  cease,  and  afterwards,  as  often  as  moi'e  becomes  due  for  prin- 
cipal or  interest,  the  court  may,  on  motion,  order  more  to  be  sold.^ 
But  if  the  property  cannot  be  sold  in  portions  without  injury  to 
the  parties,  the  whole  may  be  ordered  to  be  sold  in  the  first  in- 
stance, and  the  entire  debt  and  costs  paid,  there  being  a  rebate  of 
interest  where  such  rebate  is  proper. 

1326.  Connecticut.^  —  Mortgages  are  foreclosed  in  a  court  of 
chancery.  The  decree  is  for  a  strict  foreclosure,  whereby  the  title 
becomes  absolute  in  the  mortgagee,  on  the  mortgagor's  failure  to 
redeem  within  the  time  limited  by  the  decree,  which  is  usually  from 
two  to  six  months.  There  can  be  no  decree  for  the  sale  of  the  prop- 
erty.^ The  court  may  enforce  a  delivery  of  possession  to  the  mort- 
gagee after  the  time  allowed  for  redemption  has  expired.  Formerly 
a  foreclosure  did  not  preclude  the  mortgage  creditor  from  recovering 
so  much  of  the  claim  as  the  property  mortgaged,  estiuiated  at  the 
expiration  of  the  time  limited  for  redemption,  is  insufficient  to 
satisfy  ;  and  the  bringing  of  an  action  upon  such  claim  after  fore- 
closure obtained  did  not  open  the  foreclosure.'*  The  value  of  the 
property  mortgaged,  at  the  expiration  of  said  time,  was  ascertained 
by  the  court  before  which  the  action  was  peiiding ;  and  the  creditor 
recovered  only  the  difference  between  such  value  and  the  amount  of 
his  claim.  But  in  1878  it  was  provided  that  the  foreclosure  of  a 
mortgage  shall  be  a  bar  to  any  further  suit  or  action  upon  the  mort- 
gage debt  or  obligation,  unless  the  person  or  persons  who  are  liable 
for  the  payment  thereof  are  made  parties  to  such  foreclosure.^ 

1  The  mortgagor,  his  heirs,  executors,  or  ^  Jn  Palmer  v.  Mead,  7  Conn.  149,  152, 

administrators,  may  redeem  the  same  in  the  Chief  Justice  Hosmer  spoke  of  a  sale  of  the 

manner  prescribed   for  the  redemption  of  mortgaged  premises  on  foreclosure  as   "a 

lands   sold  b}'  virtue  of  executions  issued  proceeding  never  admitted  here." 

upon  judgments  at  common  law;  that  is,  *  Previous   to  the  statute,  passed   origi- 

the   principal    debtor   may  redeem    within  nally  in  1833,  there  could  be  no  suit  for  the 

six  months,  and  his  creditors  within  nine  balance   without  opening   the   foreclosure, 

months  from  the  date  of  sale.    An  not.  Stats.  M'Ewen  v.  Welles,  1  Root,  203,  1  Am.  Dec. 

1891,  §§  2547,  2548,  2555.  39. 

'^  G.  S.  1888,  ch.  186,  §§  3010-3017.  ^  This    provision   applies   only   to   fore- 

243 


§  1326.]  STATUTORY   PROVISIONS   RELATING    TO 

Upon  motion  of  any  party  to  a  foreclosure,  the  court  appoints 
three  disinterested  appraisers,  who  shall,  under  oath,  appraise  the 
mortgaged  property  within  ten  days  after  the  time  limited  for  re- 
demption shall  have  expired,  and  shall  make  written  report  of  their 
appraisal  to  the  clerk  of  the  court  where  said  foreclosure  was  had, 
which  report  shall  be  a  part  of  the  files  of  such  foreclosure  suit,  and 
such  appraisal  shall  be  final  and  conclusive  as  to  the  value  of  said 
mortgaged  property  ;  and  the  mortgage  creditor,  in  any  further  suit 
or  action  upon  the  mortgage  debt,  note,  or  obligation,  shall  recover 
only  the  difference  between  the  value  of  the  mortgaged  property  as 
fixed  by  such  appraisal  and  the  amount  of  his  claim.  When  a  mort- 
gage has  been  foreclosed,  and  the  time  limited  for  redemption  has 
passed,  and  the  title  to  the  premises  has  become  absolute  in  the 
mortgage  creditor,  he  must  sign  a  certificate  describing  the  premises, 
the  deed  of  mortgage  on  which  the  foreclosure  was  had,  the  book 
and  page  of  record,  and  the  time  when  the  title  became  absolute, 
which  certificate  must  be  recorded  in  the  records  of  the  town  where 
the  premises  are  situated.-^  When  the  mortgage  has  been  assigned, 
the  title  to  the  premises,  upon  the  expiration  of  the  time  limited  for 
redemption  and  on  failure  to  redeem,  vests  in  the  assignee,  in  the 
same  manner  and  to  the  same  extent  as  it  would  have  vested  in  the 
mortgagee,  provided  the  person  so  foreclosing  shall  forthwith  cause 
the  decree  of  foreclosure  to  be  recorded  in  the  recoi'ds  of  the  town 
where  the  land  lies. 

All  mortgages  executed  after  June  1,  1886,  may,  on  the  writ- 
ten motion  of  any  party  to  the  suit,  be  foreclosed  by  a  decree  of 
sale  instead  of  a  strict  foreclosure,  at  the  discretion  of  the  court. 
When  the  court  is  of  opinion  that  a  foreclosure  by  sale  should  be 
decreed,  it  shall,  in  and  by  the  judgment  therein,  appoint  a  person 
to  make  such  sale  and  fix  a  day  therefor,  and  shall  direct  whether 
the  property  shall  be  sold  as  a  whole  or  in  parcels,  and  how  such 
sale  shall  be  made  and  advertised  ;  but  in  all  cases  in  which  such 
a  sale  is  ordered  the  court  shall  appoint  three  disinterested  persons, 
who  shall,  under  oath,  appraise  the  propert}'^  to  be  sold  and  make 
return  of  their  appraisal  to  the  clerk  of  the  court ;  and  the  ex- 
pense of  such  appraisal  shall  be  paid  by  the  plaintiff  and  be  taxed 
with  the  costs  of  the  case.  If  after  the  judgment  the  amount  found 
to  be  due,  together  with  the  interest  and  the  costs,  shall  be  paid  to 

closure  proceedings  instituted  after  the  act  offence  is  complete  at  the  end  of  each  month, 

took   effect.     Curtiss  v.    Hazen,   56  Conn,  but  under  §  1379  the  penalty  cannot  be  re- 

146,  14  At).  Rep.  771.  covered  further  back  than  one  year  previous 

1  A  penalty  is  provided  by  §  3013,  G.  S.  to  the  time  of  suit.     Wells  v.   Cooper,  rj7 

1888,  for  neglect  to  file  the  certificate.     The  Conn.  52,  17  Atl.  Rep.  281. 

244 


FORECLOSURE   AND  REDEMPTION.  [§  1328. 

tlie  plaintiff  before  the  sale,  all  further  proceedings  in  the  suit  shall 
be  stayed. 

When  a  sale  lias  been  made  pursuant  to  a  judgment  therefor, 
a  conveyance  of  the  property  sold  shall  be  executed  by  the  per- 
son appointed  to  make  the  sale,  which  conveyance  shall  vest  in 
the  purchaser  the  same  estate  that  would  have  vested  in  the  mort- 
gagee or  lien-holder  if  the  mortgage  or  lien  had  been  foreclosed 
by  strict  foreclosure,  and  to  this  extent  said  conveyance  shall  be 
valid  against  all  parties  to  the  cause  and  their  privies,  but  against 
no  other  persons,  and  the  court  ma}^  order  possession  of  the  prop- 
erty sold  to  be  delivered  to  the  purchaser.  The  proceeds  of  every 
such  sale  shall  be  brought  into  court,  there  to  be  applied,  if  the 
sale  be  ratified,  in  accordance  with  the  provisions  of  a  supplemental 
judgment  then  to  be  rendered  in  said  cause,  specifying  the  parties 
who  are  entitled  to  the  same,  and  the  amount  to  which  each  is  enti- 
tled ;  and  if  any  part  of  the  debt  or  obligation  secured  by  the  mort- 
gage or  lien  foreclosed,  or  by  any  subsequent  mortgage  or  lien,  was 
not  payable  at  the  date  of  the  judgment  of  foreclosure,  it  shall 
nevertheless  be  paid  as  far  as  may  be  out  of  the  proceeds  aforesaid 
as  if  due  and  payable,  with  rebate  of  interest,  however,  where  such 
debt  was  payable  without  interest.^ 

1328.  Delaware.^  —  Foreclosure  is  by  scire  facias.  Upon  breach 
of  the  condition  of  a  mortgage  by  non-payment  of  the  mortgage- 
money,  or  non-performance  of  the  conditions  stipulated  in  such 
mortgage,  at  the  times  and  in  the  manner  therein  provided,  the 
mortgagee,  his  heirs,  executors,  administrators,  or  assigns,  may,  in 
the  county  where  the  premises  are  situated,^  sue  out  a  writ  of  scire 
facias,  directed  to  the  sheriff,  commanding  him  to  make  known  to 
the  mortgagor,  his  heirs,  executors,  or  administrators,  that  he  or 
they  show  cause  why  the  premises  ought  not  to  be  taken  on  execu- 
tion for  payment  of  said  money  and  interest,  or  to  satisfy  the  dam- 
ages which  the  plaintiff  shall  suggest  for  the  non-performance  of 
said  conditions.  The  defendant  may  plead  satisfaction  or  other 
plea  in  avoidance  of  the  deed.  Judgment  is  entered  that  the  plain- 
tiff have  execution  by  levari  facias,  under  which  the  premises  are 
sold,  and,  after  confirmation  of  the  sale  conveyed  to  the  purchaser, 
who   takes  a  title  discharged  of  all  equity  of  redemption,   and  all 

1  G.  S.  1888,  §§  3023-3027.  8  When    the   mortgaged  land  is  in  two 

-  R.   Code    1874,   p.    687.     A    court    of    counties, the  writ  may  be  sued  out  in  either. 

chancery  also  has  jurisdiction  of  a  bill  to    Laws  1887,  ch.  221. 

foreclose  a   mortgage.     Giles   v.   Lewis,   4 

Del.  Ch.  51. 

245 


§§  1329,  1330.]      STATUTORY   PROVISIONS   RELATING   TO 

other  incumbrances  made  by  the  mortgagor,  his  heirs  or  assigns. 
Any  overplus  is  rendered  to  the  debtor  or  defendant. 

But  if  there  be  no  sale  for  want  of  bidders,  return  is  made  ac- 
cording'l}^  and  tliereupon  a  liherari  facias  may  issue,  under  which 
the  officer  delivers  to  the  plaintiff  such  part  of  the  premises  as  shall, 
satisfy  his  debt  or  damages  with  interest  and  costs,  according  to  the 
valuation  of  twelve  men,  to  hold  to  him  as  his  free  tenement  in  sat- 
isfaction of  his  debt,  or  so  much  of  it  as  the  premises  by  the  valu- 
ation amount  to.  If  they  fall  short  of  satisfying  the  whole  debt, 
the  plaintifif  may  have  execution  for  the  residue.  The  execution 
and  return  pass  the  title.^  ' 

1329,  District  of  Columbia.^ — Foreclosure  is  under  the  gen- 
eral equity  jurisdiction  of  the  court.  The  only  statutory  provisions 
relating  to  it  are,  that  the  proceeding  to  enforce  any  lien  shall 
be  by  bill  or  petition  in  equity,  and  the  decree,  besides  subjecting 
the  thing  upon  which  the  lien  has  attached  to  the  satisfaction 
of  the  plaintiff's  demand  against  the  defendant,  shall  adjudge  that 
the  plaintiff  recover  his  demand  against  the  defendant,  and  that  he 
may  have  execution  thereof  as  at  law ;  and  that  publication  may 
be  substituted  for  personal  service  of  process  upon  any  defendant 
who  cannot  be  found.  Deeds  of  trust  are,  however,  almost  exclu- 
sively used. 

1330.  Florida.^ — All  mortgages  are  foreclosed  in  chancery. 
The  original  mortgage  or  a  certified  copy  thereof,  certified  by  the 
clerk  of  the  circuit  court  in  whose  office  it  was  recorded,  shall  be 
annexed  to  the  bill  of  complaint  as  a  part  thereof.^  When  a  mort- 
gage includes  land  lying  in  two  or  more  counties,  it  may  be  fore- 
closed in  any  one  of  said  counties,  and  all  proceedings  shall  be  had 
in  that  county,  as  if  all  the  mortgaged  land  lay  therein,  except  that 
notice  of  the  sale  must  be  published  in  every  county  wherein  an}'^ 
of  the  lands  to  be  sold  lie.  After  final  disposition  of  the  suit,  the 
clerk  of  the  circuit  court  shall  forward  a  certified  copy  of  the  entire 
record  to  the  clerk  of  the  circuit  court  of  every  county  wherein  any 
of  the  mortgaged  lands  lay,  to  be  filed  in  the  office  of  such  clerk, 
the  costs  of  the  copy  and  of  the  filing  to  be  taxed  as  costs  in  the 
cause. 

1  E.  C.  p.  682.  Ct.  335  ;  Shepherd  v.  Pepper,  133  U.  S.  626, 

2  R.  S.  1874,  §§  787,  808.     There  must    10  Sup.  Ct.  Kep.  438. 

be  a  decree  in  personam  against  the  debtor  ^  R.  S.  1892,  §§  1987-1989. 

for  the  balance  remaining  due  after  the  pro-  *  The   copy   must   be  officially   certified. 

ceeds  of  the  sale  have  been  applied  to  the  Browne  v.  Browne,   17    Fla.  607,  35  Am. 

satisfaction  of  the  debt.     Dodge  v.  Freed-  Rep.  96. 

man's  Sav.  &  Trust  Co.  106  U.  S.  445, 1  Sup. 

246 


FORECLOSURE    AND    REDEMPTION.  [§  1331. 

1331.  Georgia.!  —  Foreclosure  may  be  had  by  a  bill  in  equity 
when  the  mode  provided  by  statute  is  inadequate.^  Mortgages 
are  usually  foreclosed  by  petition,  which  must  be  to  the  superior 
court  in  the  county  where  the  property  is  situated.  But  if  the 
mortgaged  premises  consist  of  a  single  ti'act  of  land  divided  by  a 
county  line,  such  mortgage  may  be  foreclosed  on  the  entire  tract 
in  either  of  the  counties  in  which  part  of  it  lies  ;  provided,  how- 
ever, if  the  mortgagor  resides  upon  the  land,  the  mortgage  must 
be  foreclosed  in  the  county  of  his  residence.^  This  is  a  proceed- 
ing at  law.  The  court  grants  a  rule  nisi  directing  the  principal, 
interest,  and  costs  to  be  paid  into  court  on  or  before  the  first  day 
of  the  next  term  immediately  succeeding  the  one  at  which  the  rule 
is  granted,  which  rule  is  published  once  a  month  for  four  months, 
or  served  on  the  mortgagor,  or  his  special  agent  or  attorney,  at  least 
three  months  previous  to  the  time  at  which  the  money  is  directed 
to  be  paid  into  court."^  At  the  terra  at  which  the  money  is  directed 
to  be  paid,  the  mortgagor  may  set  up  and  avail  himself  of  any  de- 
fence which  he  might  lawfully  set  up  in  an  ordinary  suit  instituted 
on  the  debt  secured  by  such  mortgage.^  The  issue  is  tried  by  a 
special  jury. 

It  is  not  competent  for  any  third  person  to  interpose  a  defence  ; 
nor  will  the  court  itself,  of  its  own  motion,  do  so.^  When  the  mort- 
gagor is  dead,  the  proceeding  may  be  instituted  against  his  executor 

1  Code  1882,  §§  3962-3968.     The  judg-  this  mode  of  procedure  than  it  had  at  law  ; 

ment  is  binding   upon  a  purchaser  of  the  and  in  addition  to  the  foreclosure,  a  personal 

equity  of  redemption,  although  he  was  not  decree  may  be  rendered  against  the  mort- 

made  a  party  to  the  proceeding.     Knowles  gagor.     Clay  v.  Banks,  71  Ga.  363. 

V.  Lawton,  18  Ga.  476,  63  Am.  Dec.  290  ;  2  May  v.  Rawson,  21  Ga.  461  ;  Dixon  v. 

Johnston  v.  Crawley,   22  Ga.  348,  25  Ga.  Cuyler,  27  Ga.  248,  251.     A  remedy  at  law 

316,  71  Am.  Dec.  173;  Guerin  v'.  Danforth,  being  provided,  jurisdiction  in  equity  is  lost 

45  Ga.  493,  496.     No  parties  to  the  suit  are  when  this  remedy  is  complete, 

necessary  other  than   the   mortgagor  and  3  Code  1882,  §§  3962-3970. 

mortgagee.     If  the  rights  of  other  persons  *  When  the  rule  has  been  made  absolute 

are  interfered  with,  they  are  not  allowed  to  there  is  no  appeal  from  it.     Clifton  v.  Livor, 

interpose  any  claim  in  the  suit,  but    may  24   Ga.  91.     It  need  not  show  on  its  face 

have  their  remedy  when  the  mortgage  exe-  what  particular  credits  were  allowed  in  fix- 

cution  is  sought  to  be  enforced  against  the  ing   the   amount   of  the   debt.     Cherry   v. 

land.     Jackson    v.    Stanford,   19    Ga.    14;  Home  Building  &  Loan  Asso.  57  Ga.  361. 

Howard   v.   Gresham,   27  Ga.  347.     As  to  A  verdict  for  so  many  dollars  as  principal, 

jurisdiction,   a    court    in    another   county,  with  interest,  is  sufficiently  formal.     Byrd 

though  it  be  the  county  of  the  mortgagor's  v.  Turpin,  62  Ga.  591. 

residence,  has  none.     The  proceedings  of  As  to  computation  of  time,  see  English 

such  court  would  be  void.     Hackenhull  v.  v.  Ozburn,  59  Ga.  392. 

Westbrook,  53  Ga.  285.     The  act  of  1 880,  al-  6  Ytixon  v.  Cuyler,  27  Ga.  248. 

lowing  mortgages  to  be  foreclosed  in  equity,  6  Sutton  v.  Sutton,  25  Ga.  383  ;  Jackson 

conferred  fuller  powers  upon  the  court  by  v.  Stanford,  19  Ga.  14. 

247 


§  1332.]  STATUTORY   PROVISIONS  RELATING   TO 

or  administrator.^  Judgment  is  entered  for  the  amount  due,  and 
the  property  is  ordered  to  be  sold  in  the  manner  of  a  sale  under 
execution,  from  which  there  is  no  redemption.^  The  proceeds,  after 
paying  the  mortgage,  are  paid  to  the  mortgagor  or  his  agent.  If 
the  mortgage  is  given  to  secure  a  debt  due  by  instalments,  and  is 
foreclosed  before  they  are  all  due,  and  there  is  a  surplus,  the  court 
may  retain  the  funds,  or  order  the  same  to  be  invested  to  meet  the 
instalments  still  unpaid.'^ 

1332.  Idaho.4 — Actions  for  the  foreclosure  of  mortgages  of  real 
property  must  be  tried  in  the  county  in  wliich  the  subject  of  the 
action  or  some  part  thereof  is  situated.  There  can  be  but  one  action 
for  the  recovery  of  any  debt,  or  the  enforcement  of  any  right  secured 
by  mortgage  upon  real  estate  or  personal  property,  in  which  action 
the  court  may,  by  its  judgment,  direct  a  sale  of  the  incumbered 
property,  or  so  much  thereof  as  may  be  necessary,  and  the  applica- 
tion of  the  proceeds  of  the  sale  to  the  payment  of  the  costs  of  the 
court  and  the  expenses  of  the  sale,  and  the  amount  due  to  the 
plaintiff  ;  and  if  it  appear  from  the  sheriff's  return  that  the  proceeds 
are  insufficient,  and  a  balance  still  remains  due,  judgment  can  then 
be  docketed  for  such  balance  against  the  defendant  personally  liable 
for  the  debt,  and  it  becomes  a  lien  on  the  real  estate  of  such  judg- 
ment debtor,  as  in  other  cases,  on  which  execution  may  be  issued.^ 
No  person  holding  a  conveyance  from  or  under  the  mortgagor  of 
the  property  mortgaged,  or  having  a  lien  thereon,  which  conveyance 

1  If  there  is  no  administrator,  and  the  to  mortgages  made  to  secure  liquidated  de- 
equity  of  redemption  has  been  assigned,  the  mands.  Richards  v.  Bibb  Co.  Loan  Asso. 
proceeding  should  be  in  equity.  May  v.  24  Ga.  198.  The  judgment  is  not  couclu- 
Rawson,  21  Ga.  461.  sive  against  one  interested  in  the  property 

It  is  a  peculiarity  of  the  law  of  Georgia  who  was  not  made  a  party  to  the  proceed- 
that  a  proceeding  to  foreclose  a  mortgage  ings,  as,  for  instance,  one  who  has  purchased 
upon  realty,  given  by  an  intestate,  would  be  the  property  prior  to  the  commencement  of 
defeated  by  an  administrator's  sale  regu-  proceedings.  Upon  the  levy  of  the  execu- 
larly  made,  and  that  the  mortgage  creditor  tion  he  may  go  behind  the  judgment,  and 
would  have  to  look  to  the  proceeds  of  the  claim  that  the  mortgage  was  barred  by  the 
sale  in  the  administrator's  hands.  Newsom  statute  of  limitations.  Williams  v.  Terrell, 
V.  Carlton,  59  Ga.  516.     But  this  rule  pre-  54  Ga.  462. 

supposes  a  valid  and  legal  sale.  If  the  ^  A  foreclosure  sale  on  one  instalment  of 
sale  be  either  void  or  voidable,  the  same  will  the  debt  passes  the  entire  title  to  the  prop- 
be  no  bar.  The  mortgage  creditor  may  erty.  There  cannot  be  several  foreclosures 
elect  to  ratify  a  voidable  sale,  and  such  elec-  of  the  same  mortgage.  Smith  v.  Bowne, 
tion  may  be  made,  so  far  as  the  executor  is  60  Ga.  484. 
concerned,  by  continuing  to  prosecute  his  *  R.  S.  1887,  §§  4520-4522. 
pending  proceeding  to  foreclose  the  mort-  ^  The  mortgagee,  after  bringing  his  action 
gage.  Reed  v.  Aubrey  (Ga.),  17  S.  E.  Rep.  of  foreclosure,  cannot  maintain  another  and 
1022.  separate  action  for  personal  judgment   on 

2  See  Dickerson  v.  Powell,  21  Ga.  14.3.  the  mortgage  debt.  Winters  v.  Hub.  Min. 
This  proceeding  by  petition  is  not  confined  Co.  57  Fed.  Rep.  287. 

248 


FORECLOSURE   AND   REDEMPTION.  [§  1333. 

or  lien  does  not  appear  of  record  in  the  proper  office  at  the  time  of 
the  commencement  of  the  action,  need  be  made  a  party  to  such 
action  ;  and  the  judgment  therein  rendered,  and  the  proceedings 
therein  had,  are  as  conclusive  against  the  party  holding  such  un- 
recorded conveyance  or  lien  as  if  he  had  been  made  a  party  to 
the  action.  If  there  be  surplus  money  remaining  after  payment 
of  the  amount  due  on  the  mortgage,  lien,  or  incumbrance,  with 
costs,  the  court  may  cause  the  same  to  be  paid  to  the  person  en- 
titled to  it,  and  in  the  mean  time  may  direct  it  to  be  deposited 
in  court.  If  the  debt  for  which  the  mortgage,  lien,  or  incumbrance 
is  held  be  not  all  due,  so  soon  as  sufficient  of  the  property  has  been 
sold  to  pay  the  amount  due,  with  costs,  the  sale  shall  cease  ;  and 
afterwards,  as  often  as  more  becomes  due  for  principal  or  interest, 
the  court  may,  on  motion,  order  more  to  be  sold.  But  if  the  prop- 
erty cannot  be  sold  in  portions  without  injury  to  the  parties,  the 
whole  may  be  ordered  to  be  sold  in  the  first  instance,  and  the 
entire  debt  and  costs  paid,  there  being  a  rebate  of  interest  where 
such  rebate  is  proper. 

1333.  Illinois.  —  Mortgages  may  be  foreclosed  in  equity,  al- 
though the  statutory  provisions  relate  chiefly  to  proceedings  by 
scire  facias^  and  to  sales  under  powers  contained  in  mortgages. ^ 
In  equity  a  decree  may  be  rendered  for  any  balance  of  money  tliat 
may  be  found  due  over  and  above  the  proceeds  of  the  sale,  and  ex- 
ecution may  issue  for  the  collection  of  such  balance  in  the  same  way 
as  when  the  decree  is  solely  for  the  payment  of  money.  Such  de- 
cree may  be  rendered  conditionally  at  the  time  of  decreeing  the 
foreclosure,  or  it  may  be  rendered  after  the  sale  and  the  ascertain- 
ment of  the  balance  due.^ 

The  court  in  proper  cases  will  decree  a  strict  foreclosure  ;  but 
this  is  not  allowed  in  case  of  mortgages  by  executors,  guardians, 
and  conservators.^ 

Scire  facias.'^  If  default  be  made  in  the  payment  of  a  mortgage 
duly  executed  and  recorded,^  and  if  it  be  payable  by  instalments, 

1  See  §  1733.  ceeding.     Fitzgerald    v.    Forristal,   48    111. 

2  R.  S.  1889,  ch.  95,  §  16.  228;  Woodbury  v.  Manlove,  14  III.  213. 
8  R.  S.  1877,  pp.  120,  540,  653.  This  is  a  proceeding  upon  the  mortgage, 
*  R.  S.  1889,  ch.  95,  §§  17-21.     For  form    and  must  be  by  the  mortgagee  holding  the 

of  this  writ  see  Woodbury  v.  Manlove,  14  legal  title.     It  does  not  matter  that  the  note 

111.  213,  approved  in  Osgood  v.  Stevens,  25  has  been  assigned.     Camp  v.  Small,  44  111. 

III.  89.     Whan  foreclosure  is  by  scire  facias,  37  ;  Olds  v.  Cummings,  31  111.  188. 

subsequent  incumbrancers  are  cut  off,  though  5  A    mortgage   not    duly   executed    and 

not  made  direct  parties  to  the  proceeding,  recorded  cannot  be  foreclosed  in  this  way; 

Kenyon  v.  Shreck,   52  111.   382  ;  Mattesoa  and  acknowledgment  is  considered  a  part  of 

V.  Thomas,  41  111.  110.     Failure  or  want  of  the  due  execution  of  it.     Kenoslia  &  Ilock- 

consideration  cannot  be  shown  in  this  pro-  ford  R.  R.  Co.  v.  Sperry,  3  Biss.  309. 

249 


§  1333.] 


STATUTORY   PROVISIONS  RELATING   TO 


and  the  last  instalment  has  become  due,  a  writ  of  scire  facias  may 
be  sued  out  of  the  circuit  court  of  the  county  where  the  lands  or 
any  part  of  them  are  situated,  requiring  the  mortgagor  or  his  repre- 
sentatives to  show  cause  why  judgment  should  not  be  rendered  for 
the  amount  due  under  the  mortgage.^ 

When  a  sale  is  made  by  virtue  of  an  execution,  judgment,  or 
decree  of  foreclosure,  the  officer  gives  a  certificate  of  sale.^  The 
owner  of  the  equity  or  any  person  interested  in  it  may  redeem 
at  any  time  within  twelve  months  from  the  sale,  by  paying  the 
amount  bid,  with  interest  at  the  rate  of  ten  per  cent,  per  annum.^ 

1  No  declaration  need  be  filed.     The  de-  Mooers,  26  111.  162;  nor  the  want  or  fail- 

fendant   may   set   off  any   demand    in  his  are  of  consideration.     Hall  v.  Byrne,  2  111. 

favor.     Henderson  v.  Palmer,  71  111.  579,  22  140 ;  McCumber  v.  Gilmau,  13  111.  542. 

Am.  Rep.  117.  This  form  of  foreclosnre  cannot  be  used 

No  defence  can  be  interposed  except  pay-  in  case  of  a  mortgage  made  to  secure  the 

ment  of  the  mortgage  debt,  a  release  of  the  delivery  of  specific  articles.     It  cannot  be 

lien,  or  that  the  mortgage  was  never  a  valid  maintained  till  the  last  instalment  of  the 

lien.     Camp  v.  Small,  44  111.  37  ;  White  v.  mortgage  is  due,  and  this  fact  should  be 

Watkins,  23  111.  480.  alleged.     Any  remedy  before  this  must  be 

Judgment   is   rendered   for   the   amount  sought  by  ejectment,  or  by  bill  in  chancery, 

found    due,  and   the   premises   are  sold  to  Osgood   v.  Stevens,  25  111.  89  ;    Carroll  i'. 

satisfy  it.     Such  judgment  does  not  create  a  Ballauce,  26  111.  9,  79  Am.  Dec.  354;  Fickes 

lien  on  any  other  lands  than  the  mortgaged  v.  Ersick,  2  Rawle  (Pa.),  166;  Day  r.  Cush- 

premises,  nor  is  any  other  property  of  the  man,  2  111.  475. 

mortgagor  liable  to  satisfy  the  same  except  The  purchaser  at  a  sale  under  a  judg- 

sucli  other  property  as  the  mortgagor  has  ment  in  such  action  takes  all  the  interest  in 

given  as  collateral  security  for  this  purpose,  the  land  which  the  mortgagor  had  when  he 

This  is  purely  a  proceeding  at  law,  and  is  executed  the  mortgage.     State  Bank  v.  Wil- 

governed  by  the  practice  of  courts  of  law  son,  9  111.  57. 

and  not  of  equity.     Tucker  i'.  Conwell,  67  The  mortgagor,  or  his  grantees  since  the 


111.552;   Woodbury  v.  Manlove,  14  111.  213. 

The  action  must  be  brought  by  the  per- 
son who  holds  the  legal  title  to  the  mort- 
gage, and  consequently,  if  the  note  alone 
has  been  assigned,  the  suit  should  be 
brought  by  the  mortgagee.  Camp  v.  Small, 
44  111.  37.  But  ttie  assignee  may  foreclose 
by  scii-e  facias,  though  the  assignment  has 
not  been  acknowledged.  Honore  v.  Wil- 
shire,  109  111.  103. 

No  persons  but  the  mortgagor,  or,  in  case 


mortgage,  may  redeem,  as  in  the  case  of  an 
ordinary  sale  on  execution.  The  judgment 
is  against  the  property  and  not  against  the 
person.  Osgood  )•.  Stevens,  25  111.  89  ;  Mar- 
shall V.  Maury,  2  111.  231;  State  Bank  v. 
Wilson,  9  111.  57. 

The  statute  does  not  give  redemption 
from  a  judicial  sale  made  in  execution  of  a 
trust.  Hyman  v.  Bogue,  135  111.  9,  26  N. 
E.  Rep.  40. 

2  R.  S.  1889,  ch.  77,  §§  16,  19.     A  certifi- 


of  his  death,  his  executor  or  administrator,    cate  of  purchase  issued  to  a  person  other 


are  required  to  be  made  parties.  If  the 
wife  joined  in  the  mortgage  she  is  a  neces- 
sary party.  The  mortgagor's  assignee  in 
bankniptc}'  is  not  a  necessary  party.  Gil- 
bert V.  MajTirord,  2  111.  471. 


than  the  one  who,  by  the  sheriff's  return,  is 
shown  to  be  the  purchaser,  is  void.  Dicker- 
man  V.  Burgess,  20  111.  266. 

^  Seligman   v.   Laubheimer,  58  111.   124. 
The  payment  required  is  the  amount  bid  at 


All  persons  beyond  the  parties  to  the  suit    the  sale,  and  not  the  amount  of  the  mort- 


are  required  to  take  notice  of  the  proceed- 
ings and  to  protect  their  rights.  Chicker- 
ing  V.  Failes,  26  111.  507. 

Usury   cannot   be   set   up ;  Carpenter  v. 

250 


gage  debt.  The  construction  of  the  Iowa 
statute  is  different,  requiring  payment  of  the 
amount  of  the  debt  instead  of  the  amount 
bid.     Stoddard   v.  Forbes,   13  Iowa,   296; 


FORECLOSURE  AND  REDEMPTION. 


[§  1334. 


A  judgment  creditor  may  redeem  after  twelve  months  and  within 
fifteen  months  after  the  sale,  and  there  may  be  successive  redemp- 
tions within  sixty  days  from  the  last  redemption.^  After  the  expi- 
ration of  the  time  of  redemption  the  party  entitled  to  possession, 
after  a  demand  in  writing,  may  have  summary  process  to  recover  it. 
Until  the  time  allowed  for  redemption  expires,  and  the  master's 
deed  is  executed,  the  owner  of  the  equity  of  redemption  is  entitled 
to  possession. 2 

1334.  Indiana.^ — Foreclosure    is    by   complaint    in    the    circuit 


Johnson  v.  Harmon,  19  Iowa,  56.  The 
case  of  Bradley  v.  Snyder,  14  111.  263,  58 
Am.  Dec.  564,  is  not  contrary  to  this,  as  the 
redemption  in  the  latter  was  not  strictly  a 
statutory  right.  There  can  be  no  decree 
for  sale  without  redemption.  Farrell  v. 
Parlier,  50  III.  274.  If,  on  foreclosure  of 
a  senior  mortgage,  the  mortgaged  property 
is  bid  in  by  the  mortgagee  for  less  than  the 
mortgage  debt,  a  statutory  redemption  by  a 
junior  mortgagee  gives  the  latter'a  first  lien 
on  the  land,  regardless  of  the  balance  still 
due  the  senior  mortgagee,  since  by  the  fore- 
closure the  lien  of  the  .senior  mortgage  is 
extinguished.  Ogle  v.  Koerner,  140  111.  170, 
29  N.  E.  Rep.  563. 

A  bill  to  redeem,  which  does  not  allege 
that  the  complainant  has  paid  or  tendered 
the  redemption  money  to  any  one  author- 
ized to  receive  it,  is  demurrable.  Hyraan  v. 
Bogue,  135  111.  9,  26  N.  E.  Rep.  40. 

^  A  purchaser  of  the  equity  of  redemp- 
tion is  allowed  the  twelve  months  for  re- 
demption prescribed  for  the  mortgagor,  and 
not  the  tif  teen  allowed  a  judgment  creditor. 
Dunn  V.  Rodgers,  43  III.  260.  The  judg- 
ment creditor,  upon  redemption,  is  subro- 
gated to  all  the  rights  of  the  purchaser  under 
the  foreclosure  sale.  Lamb  v.  Richards,  43 
111.  312.  He  may  redeem  against  a  second 
mortgagee  who  has  taken  an  assignment  of 
the  certificate  of  purchase.  Grob  v.  Cush- 
man,  45  III.  119.  A  junior  mortgagee  who 
purchases  the  certificate  of  sale  issued  in  a 
suit  of  foreclosure  under  a  senior  mortgage 
cannot  assert  the  lien  of  his  junior  mortgage 
as  against  a  judgment  creditor  who  redeems 
from  the  sale  after  the  junior  mortgagee's 
time  for  redemption  has  expired,  since  the 
judgment  creditor,  by  redeeming,  acquires 
the  rights  of  the  senior  mortgagee.  Lloyd 
V.  Karnes,  45  111.  62  ;  Shroeder  v.  Bauer, 
140  111.  135,  29  N.  E.  Rep.  560. 


A  creditor's  right  to  redeem  where  the 
right  of  homestead  is  waived  in  the  mort- 
gage is  not  affected  by  Laws  1887,  p.  178, 
whose  purpose  is  to  prevent  a  "specific  re- 
lease, waiver,  or  conveyance"  of  the  home- 
stead for  one  purpose  from  being  used  for 
a  different  purpose.  Smith  v.  Mace,  137 
III.  68,  26  N.  E.  Rep.  1092. 

Where  a  homestead  has  been  sold  on  fore- 
closure of  a  mortgage,  in  which  the  home- 
stead estate  is  duly  released,  and  the  mort- 
gagor does  not  redeem  within  the  time 
allowed  him  by  statute  for  that  purpose,  a 
judgment  creditor,  who  afterwards  redeems 
and  buys  in  the  property  at  execution  sale 
under  his  judgment,  takes  title  free  from  the 
homestead  estate,  since  the  effect  of  the  re- 
demption is  to  vest  the  judgment  creditor 
with  the  title  acquired  at  the  foreclosure 
sale.  Herdman  v.  Cooper,  138  111.  583,  28 
N.  E.  Rep.  1094. 

One  who  purchases  a  master's  certificate 
of  sale,  after  the  holder  has  made  a  valid 
contract  to  sell  it  to  another,  takes  the  cer- 
tificate subject  to  the  contract.  Chytraus 
V.  Smith,  141  111.  231,  30  N.  E.  Rep.  450. 

For  other  cases  relating  to  redemption  by 
the  debtor  and  judgment  creditors,  see  Bo- 
zarth  V.  Largent,  128  111.  95,  21  N.  E.  Rep. 
218. 

-  Kihlholz  V.  Wolff,  8  Bradw.  371. 
3  R.  S.  1888,  §§  307,  575,  1094-1105. 
When  all  the  parties  are  properly  before 
the  court  upon  the  complaint  and  cross- 
complaint,  the  court  may  adjust  and  set- 
tle the  claims  and  equities  of  all  the  parties. 
Quill  V.  Gallivan,  108  Ind.  235,  9  N.  E. 
Rep.  99. 

Foreclosure  may  also  be  effected  in  a  pro- 
ceeding in  garnishment.  Sharts  v.  Await, 
73  Ind.  304. 

As  to  foreclosure  of  school-fund  mort- 
gages, see  R.  S.  1888,  §§  4391,  4392,  and 

251 


§  1334.]  STATUTORY   PROVISIONS  RELATING   TO 

court  of  the  county  where  the  land  lies.i  A  sale  of  the  property 
must  in  all  cases  he  ordered.  It  is  sufiBcient  to  make  the  mort- 
gagee, or  the  assignee  shown  by  said  record  to  hold  an  interest 
therein,  defendants. 

When  there  is  no  express  agreement  for  the  payment  of  the 
sum  secured  thereby  contained  in  the  mortgage,  or  in  any  sepa- 
rate instrument,  the  remedy  is  confined  to  the  mortgaged  prop- 
erty. In  rendering  judgment  the  court  gives  personal  judgment 
against  any  party  to  the  suit  liable  upon  any  agreement  for  the 
payment  of  the  debt  secured,  and  orders  the  mortgaged  premises 
to  be  first  sold  before  levy  of  execution  upon  other  property  of  the 
defendant. 

The  plaintiff  cannot  proceed  to  foreclose  his  mortgage  while 
he  is  prosecuting  any  other  action  for  the  same  debt  or  matter 
which  is  secured  by  the  mortgage,  or  while  he  is  seeking  to  obtain 
execution  of  any  judgment  in  such  other  action  ;  nor  can  he  prose- 
cute any  other  action  for  the  same  matter  while  he  is  foreclosing  his 
mortgage,  or  prosecuting  a  judgment  of  foreclosure. 

When  the  complaint  is  in  consequence  of  the  non-payment  of  an 
instalment  of  interest  or  of  the  principal,  and  the  whole  debt  is  not 
due,  it  is  dismissed  on  payment  into  court  at  any  time  before  judg- 
ment of  the  amount  then  due  ;  if  the  payment  be  made  after  final 
judgment,  proceedings  thereon  are  stayed,  subject  to  be  enforced 
upon  a  subsequent  default.  In  the  final  judgment  the  court  directs 
at  what  time  execution  shall  issue.^  The  court  in  such  cases  ascer- 
tains whether  the  property  can  be  sold  in  parcels,  and  if  this  can 
be  done  without  injury,  it  directs  so  much  only  of  the  premises  to 
be  sold  as  will  be  sufiBcient  to  pay  the  amount  due  on  the  mortgage 
with  costs.  If  the  premises  cannot  be  sold  in  parcels  the  court 
orders  the  whole  to  be  sold,  and  the  proceeds  applied  first  to  the 

Haynes  v.  Cox,  118  lud.  184,  20  N.  E.  liep.  debt  evidenced  by  a  note,  a  copy  of  eacb  of 

758.  which  is  filed  herewith,  amouudug  to 

As  to  time  within  which  the  deed  must  dollars,  which  yet  remains  unpaid  ;  where- 

be  given,  see  R.  S.  ch.  77,  §  30;  Peterson  v.  fore  he  asks  judgment  for            dollars,  and 

Emmerson,  135  111.  55.  the  foreclosure  of  the  mortgage,  and  sale  of 

1  If  the  land  lies  in  more  than  one  coun-  the  property,  or  so  much  thereof  as  may  be 

ty,  the   court    of    either   has    jurisdiction,  necessary  to  pay  his   debt,   and  for  other 

Holmes  y.  Taylor,  48  Ind.  169,     The  form  relief."    There  can  be  no  foreclosure  except 

of  complaint  given  by  statute  is  as  follows  :  by   judicial   sale,    and    therefore   power  of 

"  A.  B.  complains  of  C  D.,  and  says  that  sale  mortgages  and  trust  deeds  are  not  in 

the  defendant  executed  a  mortgage  convey-  use. 

ing  to  the  plaintiff  the  tract  of  land  therein  ^  ggg  Skelton  v.  Ward,  51  Ind.  46. 
described,  as  security  for  the  payment  of  a 

252 


FORECLOSURE   AND   REDEMPTION. 


[§  1334. 


payment  of  the  principal  due,  interest,  and  costs,  and  then  to  the 
resithie  secured  and  not  due,  with  a  proper  discount  of  interest. ^ 

In  making  sale  the  sheriff  or  other  officer  issues  to  the  purchaser 
a  certificate,  which  entitles  the  holder  of  it  to  a  deed  of  conveyance, 
to  be  executed  by  the  officer  at  the  expiration  of  one  year  from  the 
date  of  the  sale,  if  the  property  has  not  been  previously  redeemed.^ 
The  debtor  is  in  the  mean  time  entitled  to  the  possession  of  the 
premises,  but  in  case  they  are  not  redeemed  he  is  liable  to  the  pur- 
chaser for  their  reasonable  rents  and  profits. 

Redemption  may  be  made  by  any  one  holding  either  the  legal  or 
equitable  title  in  the  property,  at  any  time  within  one  year  from  the 
date  of  sale,  by  paying  to  the  purchaser,  or  to  the  clerk  of  the  court 
from  which  the  order  of  sale  was  issued,  for  the  use  of  the  pur- 
chaser, the  amount  of  the  purchase-money,  with  interest  at  the  rate 
of  ten  per  cent,  per  annum. ^     When  a  mortgagee  or  judgment  cred- 


1  Generally,  when  divisible  the  premises 
should  be  sold  in  parcels.  Frame  v.  Bell, 
16  Ind.  229;  Dale  r.  Bugh,  IG  Ind.  233; 
Piel  V.  Brayer,  30  Ind.  332,  9a  Am.  Dec. 
699.  Tliis  statute,  however,  applies  only 
to  cases  where  part  of  the  mortgage  is  not 
due.  Harris  v.  Makepeace,  13  Ind.  560; 
Smith  V.  Pierce,  15  Ind.  210;  Bentou  i'. 
Wood,  17  Ind.  260;  Denny  v.  Gra:^ter,  20 
Ind.  20.  Whether  the  premises  are  suscej)- 
tible  of  division  is  a  question  for  the  court 
to  decide.  The  court  must  ali^o  direct  the 
order  of  sale.  A  decree  giving  the  plaintiff 
the  right  to  direct  the  sale  is  erroneous. 
Knarr  v.  Conaway,  42  Ind.  260.  The  fail- 
ure of  the  court  to  determine  whether  the 
premises  are  divisible  does  not  render  the 
order  of  sale  void  ;  but  it  may  be  set  aside 
on  seasonable  ajiplication.  Cassel  v.  ^Cas- 
sel,  26  Ind.  90;  Thompson  v.  Davis,  29  Ind. 
264.  The  sale  must  be  made  according  to 
the  statute  in  force  when  the  mortgage  was 
executed.  Wolf  v.  Heath,  7  Blackf.  154; 
Franklin  v.  Thurston,  8  Blackf.  160.  If 
the  land  is  situate  in  two  counties,  the  part 
in  each  must  be  sold  at  the  door  of  the 
court-house  of  the  county  where  it  is  situ- 
ated.    Holmes  v.  Taylor,  48  Ind.  169. 

Upon  foreclosure  and  satisfaction  of 
judgment  for  the  whole  debt,  the  clerk  of 
the  court  shall  immediately  enter  satisfac- 
tion on  the  records  of  the  recorder's  office 
of  the  county.  Acts  1881,  §  715  of  Civil 
Code. 

'^  The  certificate    of    purchase    may   be 


assigned,  and  the  deed  is  then  made  to  the 
assignee.  Splahn  v.  Gillespie,  48  Ind.  397  ; 
Davis  V.  Langsdale,  41  Ind.  399.  On  the 
decease  of  the  holder  of  the  certificate,  the 
deed  may  be  made  to  his  heirs  or  devisees. 
Sumner  v.  Palmer,  10  Rich.  L.  38 ;  McEl- 
murray  v.  Ardis,  3  Strob.  212;  Swink  v. 
Thompson,  31  Mo.  336. 

^  A  liberal  construction  should  be  given 
to  the  right  of  redemption.  A  holder  of 
one  of  several  mortgage  notes,  who  has 
filed  a  cross  -  bill  in  proceedings  by  the 
holder  of  another  note,  and  obtained  a 
judgment  for  foreclosure  as  to  the  note  held 
by  him,  may  redeem  from  the  foreclosure 
sale,  as  a  judgment  creditor.  Davis  v. 
Langsdale,  41  Ind.  399.  A  mortgagee  hav- 
ing a  judgment  for  a  deficiency  may  also 
redeem.  Greene  v.  Doane,  57  Ind.  186. 
See  §  1069.  See,  also,  Teal  v.  Hinchman, 
69  Ind.  379.  As  to  right  of  junior  mort- 
gagee to  redeem,  see  Duesterberg  v.  Swart- 
zel,  115  Ind.  180,  17  N.  E.  Rep.  155; 
O'Brien  v.  Moffit  (Ind.),  33  N.  E.  Rep.  666. 
No  redemption  after  the  lapse  of  a  year. 
Gordon  v.  Lee,  102  Ind.  125,  1  N.  E.  Rep. 
290. 

There  is  a  very  plain  and  marked  dis- 
tinction between  an  estate  in  lauds  and  a 
title  to  lands.  An  estate  in  land  is  the 
degree,  quantity,  nature,  or  extent  of  inter- 
est  which  a  person  has  in  it.  His  title  to  it 
is  the  evidence  of  his  right,  or  of  the  extent 
of  his  interest.  A  person  purchasing  lands 
at  a  sale  under  execution,  who  has  acquired 

253 


§  1335.]  STATUTORY  PROVISIONS   RELATING   TO 

itor  redeems,  he  retains  a  lien  on  the  premises  for  the  amount  paid 
for  redemption  against  the  owner  or  any  junior  incumbrancer.^ 

1335.  Iowa.2  —  All  deeds  of  trust  and  mortgages  of  real  estate, 
whether  they  contain  a  power  of  sale  or  not,  must  be  foreclosed  by 
an  equitable  proceeding  in  court  in  the  county  in  which  the  prop- 
erty or  some  part  of  it  is  situated.''^  If  separate  suits  are  brought 
in  the  same  county  on  the  bond  or  note,  and  on  the  mortgage,  the 
plaintiff  must  elect  which  to  prosecute.  In  such  action  judgment 
is  entered  for  the  entire  amount  found  due,  and  under  a  special  exe- 
cution the  property,  or  so  much  as  is  necessary,  is  sold  to  satisfy  it 
with  interest  and  costs.  If  the  property  does  not  sell  for  enough  to 
satisfy  the  judgment,  a  general  execution  may  be  issued  for  the 
balance,  unless  the  parties  have  stipulated  otherwise.^ 

At  any  time  prior  to  the  sale,  a  person  having  a  lien  subsequent 
to  the  mortgage  is  entitled  to  an  assignment  of  all  the  interest  of 
the  holder  of  the  mortgage  on  paying  him  the  amount  secured, 
with  interest  and  costs,  together  with  the  amount  of  any  other  liens 
of  the  same  holder  which  are  paramount  to  his. 

If  there  is  an  overplus  remaining  after  satisfying  the  mortgage 
and  costs,  and  if  there  is  no  other  lien  upon  the  property,  such 
overplus  shall  be  paid  to  the  mortgagor.  If  there  are  any  other 
liens  on  the  property  sold,  or  other  payments  secured  by  the  same 
mortgage,  they  shall  be  paid  off  in  their  order.  And  if  the  money 
secured  by  any  such  lien  is  not  yet  due,  a  suitable  rebate  of  in- 
terest must  be  made  by  the  holder  thereof,  or  his  lien  on  such  prop- 

an  equitable  estate  therein  by  the  failure  of  will  apply  the  principles  of  both  law  and 

the  parties  in  interest  to  redeem  within  a  equity.     Kramer  v.  Rebman,  9  Iowa,  114; 

year,  but  who  has  not  demanded  and  re-  McDowell  v.  Lloyd,  22  Iowa,  448  ;    Hart- 

ceived  a  deed  from  the  sheriff,  is  not  enti-  man  v.  Clarke,  11  Iowa,  510;    Packard  v. 

tied  to  redeem  such  lands  as  a  person  hold-  Kingman,  11  Iowa,  219,  221. 

ing  the  "legal  or  equitable  title"  thereof  ^  This  provision  is  not  open  to  the  con- 

(Rev.  St.  1881,  §  768),  but  must  proceed  to  stitutional  objection  that  it  infringes  upon 

redeem  as  a  judgment  creditor  or  lienholder  the  right  of  trial  by  jury.     Clough  v.  Seay, 

(§  772).     Robertson  v.  Vancleave,  129  Ind.  49  Iowa,  111. 

217,  29  N.  E.  Rep.  781.  *  Chittenden  v.  Gossage,  18  Iowa,  157  ; 

Where  land  has  been  sold  under  a  decree  Kennion  v.  Kelsey,   10  Iowa,  443  ;  Elmore 

foreclosing  several  mortgages,  there  can  be  v.  Higgins,  20  Iowa,  250. 

no  redemption  by  the  holder  of  any  one  of  A  personal  judgment  cannot  be  rendered 

them,  though  he  I'eceived  nothing  from  the  against  a  subsequent  purchaser  who  has  not 

sale,  the   entire  proceeds   having   been   re-  assumed  the  mortgage.     Carleton  v.  B^'ing- 

quired  to  satisfy  prior  liens.     Horn  v.  In-  ton,  24  Iowa,  172. 

dianapolis  Nat.  Bank,  125  Ind.  381,  25  N.  E.  But  a  subsequent  purchaser  who  has  as- 

Rep.  558.     See  Lauriat  v.  Stratton,  II  Fed.  sumed  the  payment  of  the  mortgage  debt 

Rep.  107.  is  liable  to  a  personal  judgment,  and  parol 

1  See  Smith  v.  Moore,  73  Ind.  388.  evidence  is  admissible  to  prove  his  agree- 

2  Annot.  Code  1888,  §§  4555-4562.    This  ment  to  assume  the  debt.     Bowen  v.  Kurtz, 
is  a  statutory  proceeding,  to  which  the  court  37  Iowa,  239. 

254 


FORECLOSURE   AND   REDEMPTION.  [§  1335. 

erty  will  be  postponed  to  those  of  a  junior  date,  and  if  there  are 
none  such  the  balance  will  be  paid  to  the  mortgagor.  As  far  as 
practicable,  the  property  sold  must  be  only  sufficient  to  satisfy  the 
mortgage  foreclosed. 

A  bond,  or  an  agreement  to  convey,  may  be  treated  as  a  mortgage 
and  foreclosed  in  the  same  manner.^ 

A  foreclosure  sale  is  subject  to  redemption  in  the  same  man- 
ner as  a  sale  under  general  execution.  The  owner  of  the  equity 
may  redeem  at  any  time  within  one  year  from  the  day  of  sale, 
and  in  the  mean  time  is  entitled  to  the  possession  of  the  property.^ 
For  the  first  six  months  his  right  to  redeem  is  exclusive  ;  but  after 
that  any  creditor  of  his  may  redeem  at  any  time  within  nine  months 
from  the  sale.  Creditors  may  redeem  from  each  other  within  such 
time.^  The  terms  of  redemption  are  the  reimbursement  of  the 
amount  paid  by  the  person  who  then  holds  under  the  sale,  together 
with  the  amount  of  his  own  lien,  with  interest  at  the  rate  of  ten 
l)er  cent,  per  annum,  together  with  costs.  When  redemption  is 
made  from  a  mortgagee  whose  debt  is  not  due,  he  must  rebate  inter- 
est at  the  same  rate.  After  the  expiration  of  nine  months,  cred- 
itors can  no  longer  redeem  from  each  other,  but  the  owner  of  the 
equity  may  still  redeem  at  any  time  before  the  end  of  the  year.  If 
the  property  is  finally  held  by  a  redeeming  creditor,  his  lien,  and 
the  claim  out  of  which  it  arose,  will  be  held  to  be  extinguished  un- 
less within  ten  days  after  the  nine  months  limited  he  enters  on  the 

1  Annot.  Code  1888,  §§  4565,  4566.     But  not  redeemed  from  a  sale  under  a  senior 

the  vendor  may  at  his  election  recover  the  mortgage,  is  divested  where  the  grantee  of 

purchase-money  at  law.  Hershey  y.  Hcrshey,  the  mortgagor   has   redeemed.      Moody  v. 

18  Iowa,  24 ;  Hartman  v.  Clarke,  11  Iowa,  Funk,  82  Iowa,  1,  47  N.  W.  Rep.  1008. 

510.      See,  also,   Blair  v.  Marsh,  8  Iowa,  3  'p^e  statute  does  not  authorize  the  use- 

144  ;  Page  v.  Cole,  6  Iowa,  153;  Mulliu  v.  less  and  fruitless  act  of  a  senior  lienholder 

Bloomer,  11  Iowa,  360;  Guest  v.  Byington,  redeeming  from  a  junior  lien.     If  a  junior 

14  Iowa,  30;  Arms  v.  Stockton,  12  Iowa,  creditor  has,  by  redemption  or  otherwise, 

327;  Wall  y.  Ambler,  11  Iowa,  274.  become  the    holder   of   a   paramount   lien, 

-  After  the  expiration  of  the  year  of  junior  creditors  thereto  may  redeem  there- 
redemption,  it  is  too  late  for  the  judgment  from  by  paying  as  provided  in  §  3107,  but 
debtor  to  redeem  when  he  has  made  no  not  from  the  junior  lien.  Lysinger  v. 
tender  of  the  amount  due,  nor  brought  it  Hayer  (Iowa),  54  N.  W.  Rep.  145. 
into  court  before  the  expiration  of  the  year.  If  the  owner  of  a  sheriff's  certi.ficate 
although  he  had  paid  a  large  amount  of  accepts  the  redemption  money  from  one 
the  debt  which  had  not  been  credited  on  the  who  was  mistaken  in  his  belief  that  he  had 
judgment.  M'Conkey  v.  Laub,  71  Iowa,  a  right  to  redeem,  and  on  discovering  the 
636,  33  N.  W.  Rep.  146.  mistake  returns   the  money  to   the  clerk's 

As  to  damages   by    the  mortgagee  dur-  office  the  next  day,  and  afterwards  tenders 

ing  the  year   allowed   for  redemption,  see  it  to  the  redemptioner,  tliere  is  no  equita- 

Conway  v.  Sherman,  78  Iowa,  588,  43  N.  ble  assignment  of  the  certificate.     Byer  v. 

W.  Rep.  541.  Healey,  84  Iowa,  1,  50  N.  W.  Rep.  70. 

The  lien  of  a  junior  mortgagee,  who  has 

255 


§  1336.] 


STATUTORY   PROVISIONS    RELATING    TO 


sale  book  the  utmost  amount  he  is  willing  to  credit  on  his  claim. 
The  mode  of  making  redemption  is  by  paying  the  money  into  the 
clerk's  office  for  the  use  of  the  persons  entitled  to  it.^  At  the  end 
of  the  year  the  sheriff  makes  the  deed  to  the  person  entitled  to  it.^ 

1336.  Kansas.^  —  Foreclosure  is  by  an  equitable  action  under 
the  Code.  The  action  is  a  local  one,  and  must  be  brought  in  the 
county  in  which  the  land  is  situated.*  An  attachment  of  other  prop- 
erty may  be  made  in  the  foreclosure  suit,  as  in  other  actions  for  the 
recovery  of  money,  upon  an  affidavit  setting  forth  sufficient  grounds, 
among  which  is  the  insufficiency  of  the  security.^ 

In  actions  to  enforce  a  mortgage,  deed  of  trust,  or  other  lien  or 
charge,  a  personal  judgment  is  rendered,  as  well  to  the  plaintiff  as 
other  parties  having  liens,  for  the  amount  due  with  interest,  and  for 
the  sale  of  the  property  and  application  of  the  proceeds.^  When 
the  same  mortgage  embraces  separate  tracts  of  land  situated  in  two 
or  more  counties,  the  sheriff  of  each  county  must  make  sale  of  the 
land  situated  in  the  county  of  which  he  is  sheriff.  There  can  be  no 
sale  of  the  mortgaged  real  estate,  pledged  or  assigned  as  securit}'^, 
except  in  pursuance  of  a  judgment  of  a  court  of  competent  jurisdic- 
tion orderinjr  such  sale." 


1  See  Gilbert  v.  Husman,  76  Iowa,  241, 
41  N.  W.  Rep.  3. 

2  Annot.  Code  1888,  §§  4330-4353.  A 
junior  mortgagee  redeeming  more  than 
six  and  less  than  nine  months  after  the 
sheriff's  sale,  by  purchasing  the  certifi- 
cate, becomes  the  absolute  owner  of  the 
laud,  and  his  mortgage  is  fully  satisfied. 
Lamb  v.  Feeley,  71  Iowa,  742,  30  N.  W. 
Hep.  652  ;  Lamb  v.  West,  75  Iowa,  399,  39 
N.  W.  Kep.  666.  During  such  period  re- 
demption may  be  made  between  the  parties 
without  the  aid  of  the  clerk.  Goode  v. 
Cummiugs,  35  Iowa,  67.  As  to  successive 
redemptions  by  creditors,  see  Woonsocliet 
Inst,  for  Sav.  v.  Goukiin,  28  Fed.  Rep.  900; 
George  v.  Hart,  56  Iowa,  706,  10  N.  W. 
Kep.  265;  Newell  v.  Penn'ck,  62  Iowa,  123, 
17  N.  \V.  Rep.  472;  Goode  v.  Cummings, 
35  Iowa,  67.  The  lien  of  a  junior  mort- 
gagee, wiio  redeems  after  six  and  before 
nine  months  from  the  foreclosure  of  the 
prior  mortgage  without  making  the  state- 
ment of  record  as  to  the  amount  lie  is  will- 
ing to  credit,  is  discharged.  West  v.  Fitz- 
gerald, 12  Iowa,  306,  33  N.  W.  Rep.  688. 

Notwithstanding  the  statute  giving  a 
right  of  redemption,  a  confession  of  judg- 

256 


ment  authorizing  a  decree  of  foreclosure 
may  contain  an  agreement  that  the  sale 
under  the  decree  shall  be  absolute,  with  no 
right  of  redemption.  Cook  v.  McFarland, 
78  Iowa,  528,  43  N.  W.  Rep.  519.  A  de- 
cree which  does  not  allow  time  for  redemp- 
tion is  not  void  so  long  as  it  is  allowed  to 
stand.  Evans  v.  Atkins,  75  Iowa,  448,  39 
N.  W.  Rep.  702. 

3  2  G.  S.  1889,  §  4495. 

*  Shields  v.  Miller,  9  Kans.  390,  397  ; 
App  V.  Bridge,  McCahon,  118. 

5  Shedd  V.  McConnell,  18  Kans.  594. 

®  As  mortgages  can  be  foreclosed  by  suit 
only,  power  of  sale  mortgages  and  trust 
deeds  are  of  no  practical  advantage. 

"  There  is  no  redemption.  The  sale  cuts 
off  all  right.  Kirby  v.  Childs,  10  Kans. 
639. 

An  appraisement  of  real  estate  proposed 
to  be  sold  under  the  provisions  of  §  453  of 
the  Civil  Code  must  be  made  upon  actual 
view  had  subsequent  to  the  time  the  ap- 
praisers are  called  and  sworn.  Alfred  v. 
Bank,  48  Kans.  124,  29  Pac.  Rep.  471. 
When  an  appraisement  has  been  made,  and 
the  land  is  offered  for  sale,  but  no  sale  is 
made,  a  new  appraisement  cannot  be  made 


FORECLOSURE   AND    REDEMPTION.  [§  1337. 

The  suit  is  always  for  the  debt,  whether  the  plaintiff  asks  to  have 
the  mortgaged  property  applied  in  payment  of  it  or  not;  and  the 
judgment  is  always  a  personal  judgment  for  the  debt,  whether  an 
order  is  obtained  to  have  the  property  sold  to  satisfy  the  debt  or 
not.^  A  judgment  requiring  the  defendant  to  pay  the  debt  and  costs 
within  one  day  after  its  rendition,  and  requiring  the  clerk  on  de- 
fault to  issue  a  special  execution  to  sell  the  real  estate  to  satisfy  the 
judgment,  is  not  erroneous  because  no  more  time  is  allowed  him  to 
pay  the  money  before  the  issuing  of  the  special  execution.^ 

1337.  Kentucky.^  —  Foreclosure  is  made  under  the  jurisdiction 
of  a  court  of  equity.  Tiie  bill  may  be  brought  in  any  county  in  which 
any  part  of  the  mortgaged  land  lies.*  A  sale  of  the  premises,  or  so 
much  of  them  as  may  be  necessary,  must  in  all  cases  be  decreed.^ 
Before  the  Code,  the  court  could  not  decree  the  payment  of  any 
balance  found  due  after  the  application  of  the  proceeds  of  sale,  if  the 
mortgagee  had  a  legal  remedy  for  obtaining  this.^ 

Under  the  Code  a  strict  foreclosure  is  forbidden."  In  an  action  to 
enforce  a  mortgage  or  lien,  judgment  may  be  rendered  for  the  sale 
of  the  property  and  for  the  recovery  of  the  debt  against  the  defend- 
ant personally.  A  sale  of  the  property  may  be  ordered  without 
giving  time  to  pay  money  or  do  other  act.  Before  ordering  a  sale 
of  real  property  for  the  payment  of  debt,  the  court  must  be  satisfied 
by  the  pleadings,  by  an  agreement  of  the  parties,  by  affidavits  filed, 
or  by  a  report  of  a  commissioner  or  commissioners,  whether  or  not 
the  property  can  be  divided  without  materially  impairing  its  value  ; 
and  may  cause  it  to  be  divided,  with  suitable  avenues,  streets,  lanes, 
or  alleys,  or  without  any  of  them.  If  it  be  necessary  to  sell,  for  the 
payment  of  debt,  a  parcel  of  real  property  which  cannot  be  divided 
without  materially  impairing  its  value,  the  officer  shall  sell  the  whole 

until   the   first   appraisement   is   set   aside.  Service  may  be  made  bj-  publication,  but 

Kline  v.  Camp,  49  Kans.  114,  30  Pac.  Rep.  if   the  statute  in  regard  to  publication  be 

175.  not  complied  with,  the  sale  will  not  divest 

1  Lichty   V.   McMartin,    11     Kans.    565;  the  title  to  the  land.     Mercantile  Trust  Co. 

Jenness  y.  Cutler,  12  Kans.  510;  Gillespie  v.  South  Park  Residence  Co.  (Ky.)  2'2  S. 

V.  Lovell,  7  Kans.  419,  423.  W.  Rep.  314. 

-  Bkmdin  v.  Wade,  20  Kans.  251.  ^  Formerly,  under   the  general  jurisdic- 

3  Civil  Code  1876.  tion  in  equity,  the  court  might  order  a  strict 

Power  of  sale  mortgages  and  trust  deeds  foreclosure.     See  §  1547. 

must  be  enforced  by  a  court  of  equity  ;  but  *>  Downing  v.  Palmateer,  1  Mon.  64,  67  ; 

in  making  sale  the  court  will  follow  the  terms  Martin    v.   Wade,  5   Mon.  77;    Morgan  v. 

of   the   power.      Campbell   v.   Johnston,  4  Wilkius,  6  J.  J.  Marsh.  28  ;  Crutchfield  v. 

Dana,  178.  Coke,  6  J.  J.  Marsh.  89  ;   Martin  v.  Wade, 

*  Caufman    v.    Sayre,   2    B.    Mon.    207  ;  5  Mon.  77,  79. 

Owings  V.   Beali,  3  Litt.  103;  Shiveley  v.  '  Civil  Code  1889,  §§  374-376,  694-699. 

Jones,  6  B.  Mon.  274. 

VOL.  u.                       17  257 


§  1338.]  STATUTORY   PROVISIONS   RELATING   TO 

of  it,  though  it  bring  more  than  the  sum  to  be  raised  ;  and  the  court 
shall  make  proper  orders  for  the  distribution  of  the  proceeds.  The 
plaintiff  in  an  action  to  enforce  a  lien  on  real  property  must  state 
in  his  petition  the  liens,  if  any,  which  are  held  thereon  by  others, 
and  make  the  holders  defendants  ;  and  no  sale  of  the  property  shall 
be  ordered  by  the  court  prejudicial  to  the  rights  of  the  holders  of 
any  of  the  liens  ;  and  when  it  appears  from  the  petition  or  other- 
wise that  several  debts  are  secured  by  one  lien,  or  by  liens  of  equal 
rank,  and  they  are  all  due  at  the  commencement  of  the  action,  or 
become  so  before  judgment,  the  court  shall  order  the  sale  for  the 
pro  rata  satisfaction  of  all  of  them  ;  but  if  in  such  case  the  debts  be 
owned  by  different  persons  and  be  not  all  due,  the  court  shall  not 
order  a  sale  of  the  property  until  they  all  mature.  If  all  such  liens 
be  held  by  the  same  party,  the  court  may  order  a  sale  of  enough  of 
the  property  to  pay  the  debts  then  due,  unless  it  appear  that  it  is 
not  susceptible  of  advantageous  division  ;  or  that,  for  some  other 
reason,  the  sale  would  cause  a  sacrifice  thereof,  or  seriously  prejudice 
the  interests  of  the  defendants.  Every  sale  made  under  an  order  of 
court  must  be  public,  upon  reasonable  credits  to  be  fixed  by  the 
court,  not  less,  however,  than  six  months  for  real  property;  and 
shall  be  made  after  such  notice  of  the  time,  place,  and  terms  of  sale 
as  the  order  may  direct ;  ^  and,  unless  the  order  direct  otherwise, 
shall  be  made  at  the  door  of  the  court-house  of  the  county  in  which 
the  property,  or  the  greater  part  thereof,  may  be  situated  ;  and  the 
notice  of  such  sale  must  state  for  what  sum  of  money  it  is  to  be 
made.  A  lien  exists  on  real  property  sold  under  an  order  of  court, 
as  security  for  the  purchase-money  ;  and,  upon  payment  thereof,  the 
clerk  releases  the  lien  on  the  margin  of  the  record  of  the  deed  in  the 
office  of  the  clerk  of  the  county  court. 

Redemption  may  be  made  within  one  year  by  the  debtor,  if  the 
property  sold  on  the  judgment  or  order  of  court  does  not  bring 
two  thirds  of  the  valuation  made  by  appraisers  before  the  sale. 
The  debtor  may  remain  in  possession  until  the  right  of  redemp- 
tion expires.  The  sale  from  and  after  such  redemption  is  null  and 
void.^ 

1338.  Louisiana.  —  The  civil  law  system  prevails  in  this  State, 

-^  See,  as  to  sufficiency  of  notice,  Barlow  his  judgment,  subject  the  equity  of  redemp- 

V.  McClintock  (Ky.),  11  S.  W.  Hep.  29.  tion,  if  any  exists,  to  sale.     The  mortgagee 

-  G.  S.  1888,  p.  837.     Under  this  statute  may  in  the  first  instance  protect  himself  by 

the  mortgagee  cannot  have  an  order  of  re-  bidding  more  than  two  thirds  the  appraised 

sale  to  satisfy  the  unpaid  part  of  his  judg-  value,  thus  cutting  off  the  right  of  redemp- 

ment  remaining  after  the  first  sale;  but  he  tion.     Makibben  v.  Arndt,  88  Ky.  180,  10 

m;iy  in  the  same  suit,  or  by  execution  on  S.  W.  Rep.  642. 

258 


FORECLOSURE   AND   REDEMPTION. 


[§  1339. 


and,  as  this  differs  so  widely  as  regards  the  hiw  of  mortgages  as  well 
as  in  other  respects  from  the  common  law  system  adopted  in  the 
other  States,  no  attempt  is  made  to  give  any  full  statement  of  the 
law  relating  to  mortgages  and  the  foreclosure  of  them.^  In  general 
it  may  be  said  that  a  mortgage  executed  according  to  the  law  of  this 
State  is  an  authentic  act  before  a  notary  public,  and  imports  a  con- 
fession of  judgment.  After  the  debt  is  due,  the  mortgage  is  fore- 
closed by  instituting  a  regular  suit  and  obtaining  judgment  thereon  ; 
or  upon  confession  of  judgment  the  court  may  order  the  sheriff 
to  proceed  at  once  to  seize  and  sell  the  mortgaged  property .^  The 
hypothecary  action  by  which  mortgages  are  foreclosed  is  a  real 
action,  or  a  proceeding  in  rem,  whereby  the  property  is  followed 
wherever  it  may  be  found.  It  may  be  instituted  before  a  court  of 
ordinary  jurisdiction.  Thirty  days'  notice  to  the  debtor  must  be 
given  as  a  prerequisite  to  the  bringing  of  the  action.^  If  the  prop- 
erty does  not  sell  for  enough  to  satisfy  the  mortgage,  the  mortgagee 
becomes  an  ordinary  creditor  for  the  balance.* 

A  mortgage  which  contains  the  pact  de  non  alienando  may  be 
enforced  by  proceedings  against  the  mortgagor  alone,  notwithstand- 
ing the  alienation  of  the  property,  whether  voluntary  or  in  proceed- 
ings for  confiscation.^ 

1339.  Maine,  —  A  mortgage  may  be  foreclosed  in  equity,^  but 
the  modes  provided  by  statute  are  generally  pursued.  These  are 
by  entry  and  possession,  by  advertisement,  and  by  writ  of  entry." 


1  Rev.  Civ.  Code  1889,  arts.  3278-3411. 
As  to  rights  of  second  mortgagee  in  the 
surplus,  see  Quertier  v.  Hille,  18  La.  Ann. 
65.  This  is  a  statutory  remedy,  but  does 
not  oust  the  equitable  jurisdiction  of  the 
United  States  courts  to  enforce  the  mort- 
gage.   Benjamin  c.  Cavaroc,  2  Woods,  168. 

-  Boguille  V.  Faille,  1  La.  Ann.  204.  And 
see  Story's  Eq.  §  1007. 

3  Gentis  V.  Blasco,  15  La.  Ann.  104; 
Taylor  v.  Pearce,  15  La.  Ann.  564. 

*  Salzmau  v.  Creditors,  5  Rob.  241.  In 
order  to  make  a  valid  sale  of  land  under  a 
foreclosure  of  a  mortgage,  it  is  indispensa- 
bly necessary  in  all  parishes,  except  Jeffer- 
son and  Orleans,  that  there  should  be  an 
actual  seizure  of  the  land ;  not  perhaps  an 
actual  turning  out  of  the  party  in  posses- 
sion, but  some  taking  possession  of  it  by 
the  sheriff  not  merely  constructively.  Wat- 
son V.  Bondurant,  21  Wall.  123.  As  to 
where  the  sale  should  take  place,  see 
Walker   v.    Villavoso,    26    La.    Ann.    42 ; 


Stockmeyer  v.  Tobin,  139  U.  S.  176,  11 
Sup.  Ct.  Rep.  504.  As  to  the  disposition 
of  the  surplus,  see  Quertier  v.  Hille,  18  La. 
Ann.  65;  Lacoste  v.  West,  19  La.  Ann. 
446. 

A  mortgage  or  deed  of  trust  executed  in 
another  State  on  property  in  Louisiana,  to 
secure  the  payment  of  promissory  notes, 
takes  effect  as  a  conventional  mortgage, 
and  may  be  enforced  as  such  under  the 
jurisprudence  of  that  State.  Pickett  v.  Fos- 
ter, 36  Fed.  Rep.  514. 

Mere  informalities  or  irregularities  in  the 
sale  are  not  sufficient  ground  for  setting  it 
aside.  Stockmeyer  v.  Tobin,  139  U.  S. 
176,  11  Sup.  Ct.  Rep.  504. 

5  Avegno  v.  Schmidt,  113  U.  S.  293,  5 
Sup.  Ct.  Rep.  487;  New  Orleans  Nat. 
Banking  Asso.  v.  Le  Breton,  120  U.  S. 
765,  7  Sup.  Ct.  Rep.  772.  Shields  v. 
Schiff,  124  U.  S.  351,  8  Sup.  Ct.  Rep.  510. 

6  Laws  1891,  ch.  91,  §  1239. 

'  Ireland  v.  Abbott,  24  Me.  155;  Shaw 
259 


§  1340.]  STATUTORY    PROVISIONS    RELATING    TO 

The  mortgagor  or  any  person  claiming  under  him  may  redeem  at 
any  time  within  three  years  after  the  mortgagee  has  obtained  pos- 
session by  entry  or  by  action,  or  after  the  first  publication  of  notice, 
or  the  service  of  it,  as  provided  in  that  mode  of  foreclosure  ;  but 
when  the  mortgagor  and  mortgagee  have  in  the  mortgage  agreed 
upon  a  less  time,  but  not  less  than  one  year,  in  which  the  mortgage 
shall  be  foreclosed,  redemption  must  be  had  accordingly.^  Such 
redemption  applies  to  each  and  all  the  modes  prescribed  by  statute 
for  the  foreclosure  of  mortgages  of  real  estate.  After  payment  or 
tender  of  the  amount  due  on  the  mortgage,  a  bill  in  equity  may  be 
maintained  for  redemption  and  to  compel  the  mortgagee  to  release 
his  right.  When  the  bill  is  founded  on  a  tender  made  before  the 
commencement  of  the  suit,  it  must  be  commenced  within  one  year 
after  the  tender.^ 

1340.  Maryland.^  —  Mortgages  are  foreclosed  by  suit  in  chan- 
cery, in  which  there  may  be  a  decree  that,  unless  the  debt  and 
costs  are  paid  by  the  time  fixed  by  the  decree,  there  shall  be  a  sale 
of  the  property,  or  of  so  much  of  it  as  may  be  necessary.*  This, 
however,  is  merely  a  cumulative  remedy,  and  does  not  do  away 
with  a  strict  foreclosure.  The  heirs  of  the  mortgagee  need  not  be 
made  parties  to  the  bill,  but  any  decree  upon  a  bill  filed  by  the 
executor  or  administrator  of  the  mortgagee  has  the  same  effect  as 
if  his  heirs  were  parties  to  it.  The  sale  is  made  in  the  county 
or  city  where  the  premises  are  situated  ;  but  if  situated  in  more 
than  one  county,  the  sale  may  be  made  in  either.  There  is  no 
redemption.^ 

When  any  suit  is  instituted  to  foreclose  a  mortgage,  the  court 
may  decree  that,  unless  the  debt  and  cost  be  paid  by  a  day  fixed 
by   the   decree,   the  property   mortgaged,    or    so    much    thereof    as 

V.  Gray,  23  Me.  174;  Chase  i'.  Palmer,  25  foreclosure  sales  in  Baltimore  city  or  county, 

Me.  341.     See  §§  1238,  1239,  1277.  see  1  Pub.  Local  Laws  1888,  p.  501  ;  Mur- 

Laws  1887,  cli.  129,  provide  that,  where  a  guiondo  v.  Hoover,  72  Md.  9,  18  Atl.  Rep. 

mortgage  secures  an  agreement  other  than  907. 

that  for  the  payment  of  money,  an  attach-        *  This  provision,  that  the  court  may  de- 

ing  creditor  may  file  a  bill  to  ascertain  the  cree  a  sale  unless  the  debt  be  paid  by  a  day 

condition  of  the  mortgage,  and  may  have  a  fixed  in  the  decree,  may  be  waived  by  the 

decree  enabling  him  to  fulfil  it,  and  pending  mortgagor  in  his  answer,   or  by  previous 

such  a  bill  there  shall   be  no  foreclosure,  assent  in  the  mortgage  itself;  as  by  a  siip- 

This   provision    is   void   as    to    mortgages  ulation  that  upon  any  default  the  mortgagee 

made  before  its   enactment,    as   impairing  "  may   forthwith   foreclose    this   mortgage 

the  obligations   of  contracts.      Phinney  v.  and  sell  the  property."     Dorsey  v.  Dorsey, 

Phinney,  81  Me.  450,  17  Atl.  Rep.  405.  30  Md.  522,  96  Am.  Dec.  633. 

1  R.  S.  1883,  ch.  90,  §  6.  5  j^g  y.    Cromwell,  4   Md.   31 ;  Eichel- 

2  For  proceedings  to  redeem,  see  R.  S.  berger  v.  Harri.son,3  Md.  Ch.  39;  Andrews 
1883,  ch.  90,  §§  13-20.  v.  Scotton,  2  Bland,  629,  667. 

»  Pub.  G.  L.  1888,  art.  16,  §  187.     As  to 

260 


FORECLOSURE   AND   REDEMPTION.  [§  1341. 

may  be  necessary  for  the  satisfaction  of  said  debt  and  cost,  shall 
be  sold,  and  such  sale  shall  be  for  cash,  unless  the  plaintiff  shall 
consent  to  a  sale  on  credit ;  and  if  upon  the  sale  under  such  decree 
of  the  whole  mortgaged  property  the  net  proceeds  thereof,  after 
the  costs  allowed  by  the  court  are  satisfied,  shall  not  suffice  to  sat- 
isfy the  mortgage  debt  and  accrued  interest,  as  this  shall  be  found 
by  the  judgment  of  tlie  court  upon  the  report  of  the  auditor  thereof, 
the  court  may,  upon  tlie  motion  of  the  plaintiff,  enter  a  decree  in 
personam  against  the  mortgagor,  or  other  party  to  the  suit  who  is 
liable  for  the  payment  thereof,  provided  the  moi-tgagee  would  be 
entitled  to  maintain  an  action  at  law  upon  the  covenants  contained 
in  said  mortgage  for  said  residue  of  the  said  mortgage  debt  so  re- 
maining unsatisfied  by  the  proceeds  of  such  sale,  which  decree  shall 
have  the  same  effect  as  a  judgment  at  law,  and  may  be  enforced 
onl}^  in  like  manner  by  a  writ  of  execution  in  the  nature  of  a  writ 
of  fieri  facias,  or  otherwise.^ 

1341.  Massachusetts.  —  Foreclosure  in  equity  is  very  rare, 
although  jurisdiction  of  the  subject  is  given  by  statute  in  cases 
where  there  is  not  a  plain,  adequate,  and  complete  remedy  at  com- 
mon law.^  Mortgages  are  generally  foreclosed  by  entry  and  posses- 
sion, or  by  writ  of  entry,  or  under  powers  of  sale.^ 

Redemption  *  may  be  liad  at  any  time  within  three  years  after 
the  mortgagee  has  obtained  possession  for  the  purpose  of  foreclosure. 
If  a  tender  be  made  of  the  whole  sum  due  on  the  mortgage  within 
the  three  years  limited  for  redemption,  and  it  be  not  accepted,  a 
suit  in  equity  for  redemption  may  be  brought  within  one  year  after 
the  tender  is  made.  If  in  such  suit  the  plaintiff  alleges  a  tender, 
he  must  when  he  commences  his  suit  pay  the  sum  thus  tendered 
to  the  clerk  of  the  court  for  the  use  of  the  party  entitled  thereto. 
But  he  may  at  any  time  within  the  three  years,  and  either  before 
or  after  entry  for  breach  of  the  condition,  bring  a  suit  for  redemp- 
tion without  a  previous  tender,  and  may  -therein  offer  to  perform 
the  condition  of  the  mortgage.  If  suit  is  brought  without  a  pre- 
vious tender,  and  it  appears  that  anything  is  due  on  the  mortgage, 
the  plaintiff  must  pay  the  costs,  unless  the  mortgagee  has  unreason- 
ably refused  or  neglected,  when  requested,  to  render  a  just  and  true 

1  Pub.  G.  L.  188S,  art.  16,  §  187.     If  the  of  interest  for  sums  not   due.     Peyton    o. 

mortgage  is  payable  by  instalments,  a  sale  Ayrcs,  2  Md.  Ch.  64. 

will  be  decreed  of  so  much  of  the  property  ^  p.  g.  i882,  ch.  1.51,  §  2;  Shaw  v.  Nor- 
as will  pay  the  amount  due,  and  the  decree  folk  Co.  K.  R.  Co.  5  Gray,  162;  Lowell  v. 
will  stand  as  security  for  other  instalments  Daniels,  2  Cush.  2.34,  61  Am.  Dec.  448. 
as  they  fall  due;  and  if  it  cannot  be  sold  ^  gee  §§  1237-1316,  1741. 
in  parcels,  the  court  may  order  it  sold  en-  *  G.  S.  ch.  140,  §§  13-35;  P.  S.  1882,  ch. 
tire,  and  the  whole  debt  paid,  with  a  rebate  181,  §§  21-41. 

261 


§  1342.]  STATUTORY   PROVISIONS   RELATING    TO 

account  of  the  money  due  on  the  mortgage,  and  of  the  rents  and 
profits  and  sums  paid  for  taxes,  repairs,  and  improvements;  or 
unless  he  has  prevented  the  phiintiff  from  performing  or  tendering 
performance  of  the  condition.  If  the  tender  be  insufficient,  the 
phiintiff  is  nevertheless  entitled  to  redemption  if  the  suit  has  been 
commenced  Avithin  the  three  years.  If  too  much  be  tendered,  the 
surplus  is  restored  to  the  plaintiff.  If  it  appears  that  the  mortga- 
gee has  received  from  the  rents  and  profits  or  otherwise  more  than 
is  due  on  the  mortgage,  judgment  and  execution  are  awarded 
against  him  for  the  sum  due  the  plaintiff. 

1342.  Michigan.!  —  gjjig  foj.  foreclosure  are  filed  in  the  circuit 
court  in  chancery  of  the  county  where  the  premises,  or  any  part  of 
them,  are  situated.  The  court  has  power  to  decree  a  sale  of  the 
mortgaged  premises,  or  such  part  of  them  as  may  be  sufficient  to 
discharge  the  amount  due  on  the  mortgage,  and  the  costs  of  suit ; 
but  no  lands  are  to  be  sold  within  one  year  after  the  filing  of  the 
bill  of  foreclosure.^  The  court  may  compel  the  delivery  of  the 
possession  of  the  premises  to  the  purchaser,  and  on  the  coming  in 
of  the  report  of  sale  may  decree  the  payment  by  the  mortgagor  of 
any  balance  of  the  mortgage  debt  that  may  remain  unsatisfied  after 
a  sale  of  the  premises,  in  the  cases  in  which  such  balance  is  recov- 
erable at  law ;  and  for  that  purpose  may  issue  the  necessary  execu- 
tions, as  in  other  cases  against  other  property  of  the  mortgagor. 

No  proceedings  at  law  for  the  recovery  of  the  debt  can  be  had 
while  the  bill  is  pending,  unless  authorized  by  the  court.  If  the 
debt  be  secured  by  the  obligation  or  other  evidence  of  debt  of  any 
person  besides  the  mortgagor,  the  complainant  may  make  such 
person  a  party  to  the  bill,  and  the  court  may  decree  payment  of 
the  balance  of  the  debt  unsatisfied  after  a  sale  of  the  premises,  as 
well  against  such  other  person  as  against  the  mortgagor.  Upon 
the  filing  of  the  bill,  the  complainant  must  state  in  it  whether  any 
proceedings  have  been  had  at  law  for  the  recovery  of  the  debt,  or 
any  part  of  it,  and  whether  any  part  of  it  has  been  paid.     If  any 

1  Annotated  Stats.  1882,  §§  6700-6716.  year  and  six  weeks  that  must  elapse  before 

2  The  purpose  of  this  provision  being  to  the  sale  on  foreclosure  may  be  computed 
give  the  mortgagor  time  to  make  payment  from  the  date  of  taking  out  the  subpoena,  if 
and  save  the  lands,  that  purpose  is  not  it  is  taken  out  with  the  intention  in  good 
served  by  allowing  a  sale  within  six  months  faith  of  serving  it  as  soon  as  possible,  and 
after  he  first  has  notice  that  a  hill  has  been  there  is  no  laches  in  obtaining  service, 
filed,  even  though  it  has  been  on  file  for  six  Culver  v.  McKeown,  43  Mich.  322,  5  N.  W. 
months  previous.  The  court  may  postpone  Rep.  422.  The  decree  must  not  authorize 
the  sale  until  the  expiration  of  a  year  from  a  sale  before  the  expiration  of  a  year  after 
service  of  the  subpoena.  Detroit  F.  &  M.  the  filing  of  an  amended  bill.  Gray  v.  Fed- 
Ins.  Co.  V.  Renz,  33  Mich.  298.     The  one  eral  Bank,  83  Mich.  365,  47  N.  W.  Rep.  221. 

262 


FORECLOSURE   AND   REDEMPTION.  [§  1342. 

judgment  has  been  obtained  at  law,  no  proceedings  can  be  had, 
unless  return  is  made  that  the  execution  is  unsatisfied  in  whole  or 
in  part,  and  that  the  defendant  has  no  property  whereof  to  satisfy 
the  execution  except  the  mortgaged  premises.^ 

All  sales  are  made  by  a  circuit  court  commissioner  of  the  county 
in  which  the  decree  was  rendered,  or  the  land  or  some  part  of  it  is 
situated,  or  by  some  other  person  authorized  by  the  order  of  the 
court;  The  sales  are  at  public  vendue  between  the  hour  of  nine 
o'clock  in  the  morning  and  the  setting  of  the  sun,  at  the  court- 
house, or  place  of  holding  the  circuit  court,  in  the  county  in  which 
the  estate  or  some  part  of  it  is  situated,  or  at  such  other  place  as 
the  court  may  direct.  Deeds  are  executed  by  the  commissioner,  or 
other  person  making  the  sale,  specifying  the  names  of  the  parties 
to  the  suit,  the  date  of  the  mortgage,  when  and  where  recorded, 
with  a  description  of  the  premises  sold,  and  the  amount  bid  for  the 
same,  which  vest  in  the  purchaser  the  same  estate  that  would  have 
vested  in  the  mortgagee  if  the  equity  of  redemption  had  been  fore- 
closed, and  no  other  or  greater  ;  and  the  deeds  are  as  valid  as  if 
executed  by  the  mortgagor  and  mortgagee,  and  are  an  entire  bar 
against  each  of  them,  and  against  all  parties  to  the  suit  in  which 
the  decree  was  made,  and  against  their  heirs  and  all  persons  claim- 
ing under  them.^ 

The  proceeds  of  a  sale  under  the  decree  are  applied  to  the  dis- 
charge of  the  debt  adjudged  by  the  court  to  be  due,  and  of  the 
costs  awarded  ;  any  sur^alus  there  may  be  is  brought  into  court  for 
the  use  of  the  defendant,  or  of  the  person  entitled  to  it,  subject  to 
the  order  of  the  court.  If  this  remains  for  three  months  without 
being  applied  for,  the  court  may  direct  it  to  be  put  out  at  interest, 
under  the  direction  of  the  court,  for  the  benefit  of  the  defendant. 
Where  a  portion  of  the  mortgage  debt  is  not  due  at  the  time  of  the 
filing  of  the  bill,  it  is  dismissed  upon  the  defendant's  bringing  into 
court,  at  any  time  before  the  decree  of  sale,  the  principal  and  in- 
terest due,  with  costs.^  If  he  bring  this  in  after  a  decree  of  sale  has 
been  entered,  the  proceedings  are  stayed  ;  but  the  court  enters  a 

1  A  bill  cannot  be  maintained  wbich  notices,  and  the  preservation  of  evidence  of 
shows  that  a  judgment  has  been  recovered  service,  see  Annotated  Stats.  1882,  §§  7497, 
on  one  of  the  notes,  and  that  it  was  nearly  7498;  New  York  Bap.  Union  v.  Atwell,  95 
paid,  but  did   not  show  that  an  execution  Mich.  239,  54  N.  W.  Rep.  760. 

had  been  issued  and  returned  unsatisfied  in  As  to  what  is  a  sufficient  affidavit  under 

whole  or  in  part,  and  did  not  waive  a  decree  these  provisions,  see  Brown  v.  Phillips,  40 

as   to  that   note.     Dennis   v.    Hemingway,  Mich.  264. 

"Walker's  Ch.  387.  ^  Brown  v.  Thompson,  29  Mich.  72. 

2  For  provisions  as  to  the  publication  of 

263 


§  1343.]  STATUTORY   PROVISIONS   RELATING   TO 

decree  of  foreclosure  and  sale,  to  be  enforced  by  a  further  order  of 
court  upon  a  subsequent  default. ^ 

The  court  may  direct  a  reference  to  a  master,  to  ascertain  and 
report  the  situation  of  the  premises,  or  may  determine  the  same 
on  oral  or  other  testimony  ;  and  if  it  appear  that  they  can  be  sold 
in  parcels  without  injury,  the  decree  directs  so  much  of  the  prem- 
ises to  be  sold  as  will  be  sufficient  to  pay  the  amount  then  due  on 
the  mortgage,  with  costs ;  and  such  decree  remains  as  security  for 
any  subsequent  default.  If  there  be  any  default  subsequent  to  the 
decree,  the  court  may,  upon  the  petition  of  the  complainant,  by  fur- 
ther order  direct  a  sale  of  so  much  of  the  premises  as  will  be  suffi- 
cient to  satisfy  the  amount  due,  with  the  costs  of  the  petition  ;  and 
such  proceedings  may  be  had  as  often  as  a  default  may  happen.  If 
it  appear  that  a  sale  of  the  wdiole  of  the  premises  will  be  more 
beneficial  to  the  parties,  the  decree  in  the  first  instance  is  entered 
for  the  sale  of  the  whole.  Upon  a  sale  of  the  whole,  the  proceeds 
are  applied  as  well  to  the  portion  of  the  debt  due  as  towards  that 
not  due,  with  a  rebate  of  legal  interest  in  case  the  residue  do  not 
bear  interest ;  or  the  court  may  dii'ect  the  balance  of  the  proceeds 
of  such  sale,  after  the  payment  of  the  portion  due,  to  be  put  out  at 
interest  for  the  benefit  of  the  complainant,  to  be  paid  him  as  the 
instalments  may  become  due,  and  the  surplus  for  the  benefit  of  the 
defendant,  to  be  paid  on  the  order  of  the  court. 

1343.  Minnesota.^  —  Actions  for  the  foreclosure  of  mortgages 
are  governed  by  the  rules  and  provisions  of  statute  applicable  to 
civil  actions.  Service  by  publication  for  six  weeks,  as  in  the  case 
of  a  sale  under  power,  may  be  made  upon  all  parties  to  the  action 
against  whom  no  personal  judgment  is  sought,  and  such  judgment 
may  be  taken  at  the  expiration  of  twenty  days  after  the  completion 
of  publication.^  Such  judgment  is  entered  for  the  amount  due 
with  costs,  and  directs  the  sheriff  to  proceed  to  sell  the  same  as  on 
execution  and  make  report  to  the  court.  Upon  the  coming  in  of 
the  report  the  court  may  confirm  the  sale,  and  the  clerk  shall  then 
enter  satisfaction  of  the  judgment  to  the  extent  of  the  sum  bid,  less 
expenses  and  costs,  and  execution  may  issue  for  the  balance. 

1  The  proceedings  for   a  further  decree        2  q    g_  1891,  §§  5380-5397.     The  action 

are  essentially  a  new  suit  in  all  respects  is  a  personal  action,  and  not  a  proceeding 

except  form  ;  and  notice  must  be  given  to  in  rem.     Whalley  v.  Eldridge,  24  Minn.  358  ; 

all  persons  whose  interests  will  be  affected  Bardwell  v.  Collins,  44  Minn.  97,  46  N.  W. 

in  the  same  manner  as  in  the  original  suit.  Rep.  315. 

No  decree  can  be  entered  without  proof,  as        ^  ^g  jq   service   of  notice  at  the   usual 

in  other  cases.     Brown   v.   Thompson,   29  abode  of  owner  by  copy,  see  Groff  i\  Na- 

Mich.  72.  tional  Bank  (Minn.),  52  N.  W.  Rep.  934. 

264 


FORECLOSURE   AND   REDEMPTION.  [§  1344, 

Any  surplus  is  subject  to  the  order  of  the  court  for  the  benefit  of 
the  person  entitled  to  it.  When  the  action  of  foreclosure  is  for  an 
instalment  due,  it  may  be  dismissed  on  payment  before  judgment 
of  the  amount  due;  or,  after  judgment,  proceedings  may  be  stayed, 
to  be  enforced  by  further  order  upon  subsequent  default. 

The  mortgagee,  or  any  one  claiming  under  him,  may  fairly  and 
in  good  faith  bid  off  the  premises  at  said  sale ;  and  in  such  case  the 
statement  of  such  fact  in  the  report  of  sale  shall  have  the  same 
effect  as  a  receipt  for  money  paid  upon  a  sale  for  cash. 

Whenever  possession  of  lands,  foreclosed  as  aforesaid,  is  wrong- 
gfully  "withheld  after  final  decree,  the  court  may  compel  delivery  of 
possession  to  the  party  entitled  thereto  by  order  directing  the  sheriff 
to  effect  such  delivery. 

A  strict  foreclosure  may  be  decreed  in  cases  where  such  remedy 
is  just  or  appropriate  ;  but  in  such  case  no  final  decree  can  be  ren- 
dered until  the  lapse  of  one  year  after  the  judgment  determining 
the  amount  due  on  the  mortgage.^ 

Redemption  may  be  made  as  in  case  of  sales  under  a  power,  that 
is,  for  one  year.^  After  the  expiration  of  the  time  allowed  for  re- 
demption, a  final  decree  is  entered  that  the  title  is  in  the  purchaser 
free  of  all  redemption,  and  this  decree  being  recorded  passes  the 
title  to  the  property  as  against  the  parties. 

1344.  Mississippi.  —  Foreclosure  is  under  the  jurisdiction  of 
courts  of  equity.  The  court  may  compute  the  amount  due  on  the 
mortgage,^  or  reference  may  be  made  to  the  clerk  of  court,  or  to  a 
master,  to  compute  it  and  report.  The  bill  may  be  maintained  for 
an  instalment  of  the  mortsao-e  debt  before  the  balance  of  it  becomes 
due  :  but  the  whole  debt  may  be  included  in  the  decree  if  it  becomes 
due  before  the  final  hearing.*  Upon  the  confirmation  of  the  report 
of  sale  under  a  decree  to  satisfy  a  mortgage  or  deed  of  trust,  if 
there  be  a  balance  due  to  the  complainant,  the  court  upon  motion 

1  G.  S.  1891,  §5385;  Wilder  v.  Haughey,  closure  sale.  O'Brien  v.  Krenz,  36  Minu. 
21   Minn.   101,  per  Berry,  J.:  "The  cases     136,  30  N.  W.  Rep.  458. 

are  very  rare  in  which  a  strict  foreclosure  As   to  redemption  by  a  creditor  of  the 

should  be  adjudged."  mortgagor  who  had  conveyed  the  mortgaged 

2  See  §  1743  for  provisions  respecting  land  to  another,  see  Willard  v.  Finnegan,  42 
certificate  of  sale  and  mode  of  redemption.  Minn.  476,  44  N.  W.  Rep.  985.  And  see 
A  creditor,  after  redeeming  sufficient  prop-  same  case  holding  that  the  purchaser,  at  the 
erty  of  his  debtor  to  satisfy  his  judgment,  mortgage  sale,  alone  could  raise  the  question 
cannot  make  a  further  valid  redemption,  whether  a  tender  by  the  mortgagor  dis- 
Scripter  v.  Bartleson,  43  Fed.  Rep.  259.  charged  the  lien  of  the  judgment,  so  as  to 

If  the  land  is  sold  in  one  parcel,  a  pur-  terminate  his  right  to  redeem, 

chaser   or  mortgagee  of  a  part  of  it  may  ^  Beville  v.  Mcintosh,  41  Miss.  516. 

redeem  the  whole, and  is  thereby  subrogated  *  Magruder  v.  Egglestfm,  41  Miss.  284. 
to  the  rights  of  the  purchaser  at  the  fore- 

265 


§  1345.] 


STATUTORY    PROVISIONS    RELATING   TO 


shouUl  ^Ive  a  decree  against  the  defendant  for  any  balance  for  which 
he  is  personally  liable,  upon  which  decree  execution  may  issue.^ 
All  lands  comprising  a  single  tract,  and  wholly  described  by  the 
subdivision  of  the  governmental  surveys,  sold  under  mortgages  and 
deeds  of  trust  hereafter  executed,  shall  be  sold  in  the  manner  pro- 
vided by  the  Constitution  for  the  sale  of  lands  in  pursuance  of  a 
decree  of  court  or  under  execution  ;  that  is,  the  lands  shall  be  first 
offered  in  subdivisions  not  exceeding  one  hundred  and  sixty  acres, 
or  one  quarter  section,  and  then  offered  as  an  entirety,  and  the 
price  bid  for  the  latter  shall  control  only  when  it  shall  exceed  the 
aggregate  of  the  bids  for  the  same  in  subdivisions  ;  but  the  chan- 
cery court  may  decree  otherwise  if  deemed  advisable.^ 

There  is  no  redemption  after  sale. 

1345,  Missouri.^ — Foreclosure  is  by  petition  in  the  circuit  court 


1  Annot.  Code  1892,  §  592.  Motion  for 
such  judgment  need  not  be  made  at  the 
term  of  court  when  the  sale  is  confirmed, 
but  at  any  time  before  the  execution  of  the 
decree  is  barred  by  limitation.  Weir  v. 
Field,  67  Miss.  292,  7  So.  Rep.  35.5. 

On  the  death  of  the  mortgagor,  such  per- 
sonal decree  for  the  balance  may  be  had 
against  his  personal  representative.  Weir 
V.  Field,  67  Miss.  292,  7  So.  Rep.  355. 

2  Annot.  Code  1892,  §  2443. 

3  R.  S.  1889,  §§  7078-7097.  For  sales 
under  powers,  see  §  1745. 

This  is  a  statutory  proceeding,  and  is 
governed  by  the  rules  of  proceedings  at  law 
and  not  by  those  in  equity.  Thayer  v. 
Campbell,  9  Mo.  280.  These  statutory  pro- 
visions are  very  similar  to  those  of  other 
States  which  are  there  enforced  in  equity. 
The  courts  have  sometimes  found  it  a  mat- 
ter of  uncertainty  whether  a  foreclosure 
suit  in  a  particular  instance  is  under  the 
statute,  or  under  the  jurisdiction  of  a  court 
of  equity,  it  being  the  general  opinion  that, 
notwithstanding  the  statutory  remedy,  a 
party  may  pursue  his  rights  in  a  court 
of  chancery.  Although  a  petition  was  ad- 
dressed to  the  judge  "in  chancery  sitting," 
and  contained  language  peculiar  to  bills  in 
equity,  yet,  the  mode  of  proceeding  having 
been  that  prescribed  by  the  statute,  it  was 
regarded  as  a  statutory  proceeding.  The 
chief  distinction  between  the  two  modes  is 
this,  that  in  equity  there  can  be  no  judg- 
ment for  a  deficiency,  while  this  is  provided 

266 


for  by  the  statute.  Riley  v.  McCord,  24 
Mo.  265 ;  Fithian  v.  Monks,  43  Mo.  502. 

The  statute  does  not  do  away  with  the 
chancery  jurisdiction  of  the  United  States 
Circuit  Court  of  a  proceeding  to  foreclose  a 
mortgage  in  Missouri,  the  statute  provid- 
ing for  foreclosure  in  a  court  of  law  not 
doing  away  with  the  right  to  proceed  in 
equity.  Keith  &  P.  Coal  Co.  v.  Bingham, 
97  Mo.  196,  10  S.  W.  Rep.  32. 

A  judgment  for  the  residue  of  the  debt 
not  satisfied  by  the  mortgage  can  be  ren- 
dered only  against  the  mortgagor  or  his 
personal  representative,  and  cannot  be  ren- 
dered Hgainst  a  purchaser  who  has  assumed 
the  payment  of  the  mortgage  as  a  part  of 
the  consideration  of  purchase.  This  pro- 
ceeding being  purely  statutory  cannot  be 
extended  beyond  the  express  provisions  of 
the  statute.  Fithian  v.  Monks,  43  Mo. 
502. 

In  some  cases  a  foreclosure  may  be  had  in 
equity  when  no  remedy  can  be  had  under 
the  statute,  as  in  case  of  a  deed  made  by 
mistake  to  the  grantor  himself,  to  be  void 
upon  the  payment  of  a  debt  by  him ;  it  can- 
not be  treated  as  a  mortgage  in  a  court  of 
law,  but  in  equity  may  be  reformed  and 
foreclosed  upon  the  same  bill.  Rackliffe  v. 
Seal,  36  Mo.  317.  And  so,  also,  on  a  bill 
in  equity  to  redeem,  the  decree  may  be  that 
on  failure  to  redeem  within  the  time  lim- 
ited the  jiroperty  shall  be  sold,  this  being  in 
such  case  a  foreclosure  in  equity.  Davis  v. 
Holmes,  55  Mo.  349. 

The  more  common  form  of  security  in 


FORECLOSURE   AND   REDEMPTION.  [§  1345. 

against  the  mortgagor  and  the  actual  tenants  or  occupiers  of  the 
real  estate,  setting  forth  the  substance  of  the  mortgage  deed,  and 
praying  that  judgment  may  be  rendered  for  the  debt  or  damages, 
and  that  the  equity  of  redemption  may  be  foreclosed,  and  the  prop- 
erty sold  to  satisfy  the  amount  due.  The  petition  may  be  filed  in 
any  county  where  any  part  of  the  mortgaged  premises  is  situated. ^ 
In  case  of  the  death  of  the  mortgagee  or  his  assignee,  or  of  the 
mortgagor,  either  before  or  after  the  action  is  brought,  the  personal 
representatives  of  the  deceased  must  be  made  a  party  to  the  suit ;  ^ 
and  when  the  personal  representative  of  the  mortgagor  is  made  a 
party  to  the  suit,  and  the  property  is  insufficient  to  satisfy  the  debt 
and  costs,  as  to  the  residue  the  judgment  has  the  effect  of  a  judg- 
ment against  the  executor  or  administrator  as  such.^  Any  person 
claiming  an  interest  in  the  mortgaged  property  may,  on  motion,  be 
made  defendant  in  such  proceedings.^  When  the  mortgagor  is  not 
summoned,  but  notified  by  publication,  and  has  not  appeared,  the 
judgment  against  him  is  for  the  debt  and  damages,  or  damages 
found  to  be  due,  and  costs,  to  be  levied  of  the  mortgaged  property 
described  as  in  the  mortgage.  When  he  has  been  duly  summoned,  or 
appears  in  the  suit,  the  judgment  further  provides  that  if  the  mort- 
gaged property  be  not  sufficient  to  satisfy  the  debt  and  damages,  or 
damages  and  costs,  then  the  residue  shall  be  levied  off  other  goods, 
chattels,  lands,  and  tenements  of  the  mortgagor. 

The  execution  is  a  special  fieri  facias^  and  is  served  and  returned 
as  executions  in  ordinary  civil  suits.^  The  purchaser  at  a  fore- 
closure sale  takes  a  title  against  the  parties  to  the  suit,  but  he 
cannot  set  it  up  against  the  subsisting  equities  of  those  who  are  not 
parties. 

If  redemption  be  made  by  payment  to  the  officer  before  sale,  the 
officer  makes  a  certificate,  which  is  acknowledged  and  recorded  in 
the  office  where  the  mortgage  is  recorded,  and  has  the  same  effect 

this  State  is  a  trust  deed  or  a  power  of  sale  *  They  are  allowed  to  become  parties  so 

mortgage.     These  may  be  foreclosed  under  that  they  may  protect  their  owu  interests, 

the  statute,  as  well  as  under  the  powers  in  not  the  interests  of  others.     Wall  v.  Nay, 

these  instruments.  30  Mo.  494.     One  of  several  mortgagees 

1  Objection  that  the  suit  is  not  brought  may  proceed  to  foreclose  without  making 
in  the  county  where  the  premises  are  sit-  the  other  mortgagees  parties  to  the  petition, 
uated,  though  in  the  proper  court,  must  be  He  has  no  right  to  join  them,  but  they  may 
taken  before  plea,  and  will  be  waived  by  come  in  voluntarily.  Thayer  v.  Campbell, 
pleading  to  the  merits.     Choteau  v.  Allen,  9  Mo.  280. 

70  Mo.  290.  ^  A  sale  is  valid  under  a  writ  which  com- 

2  See  Tierney  v.  Spira,  97  Mo.  98,  10  S.  mands  the  sheriff  to  sell  the  mortgaged 
W.  Rep.  433.  premises,  and  have  the  proceeds  before  the 

3  Perkins  v.  Woods,  27  Mo.  547.  His  court  to  satisfy  the  judgment.  Lord  v. 
heirs  are  not  necessary  parties.  Johnson,  102  Mo.  680,  \b  S.  W.  Rep.  73. 

267 


§§  1346,  1347.]      STATUTORY   PROVISIONS  RELATING   TO 

as  satisfaction  entered  on  the  margin.  There  is  no  redemption 
after  snch  sale,  though  there  is  after  a  sale  under  a  power  of  sale 
mortgage  or  trust  deed.^ 

1346.  Montana.^ — An  action  for  the  foreclosure  of  a  mortgage 
of  real  property  must  be  tried  in  the  county  in  which  the  subject  of 
the  action  or  some  part  of  it  lies;  unless  the  property  is  situated 
partly  in  one  county  and  partly  in  another,  in  which  case  the  plain- 
tiff may  select  either  county.  There  is  but  one  action  for  the  re- 
covery of  any  debt,  or  the  enforcement  of  any  rights  secured  by 
mortgage  upon  real  estate.  In  actions  for  the  foreclosure  of  mort- 
gages the  court  has  the  power  by  its  judgment  to  direct  a  sale  of 
the  incumbered  property,  or  as  much  as  may  be  necessary,  and  the 
application  of  the  proceeds  of  the  sale  to  the  payment  of  the  costs 
of  the  court,  and  expenses  of  the  sale,  and  the  amount  due  the 
plaintiff;  and  if  it  appear  from  the  sheriff's  return  that  the  pro- 
ceeds are  insufficient,  and  a  balance  still  remains  due,  judgment  is 
docketed  for  such  balance  against  the  defendant  personally  liable 
for  the  debt,  and  thus  becomes  a  lien  on  the  real  estate  of  such 
judgment  debtoi-.  No  person  whose  title  does  not  appear  on  record 
need  be  made  a  party  to  the  suit.  If  there  be  a  surplus,  it  is 
paid  to  the  person  entitled  to  it,  and  in  the  mean  time  it  is  to  be 
deposited  in  court.  If  the  debt  be  not  all  due,  sufficient  of  the 
property  is  sold  to  satisfy  the  amount  due,  interest,  and  costs,  and 
the  court  may  on  motion  order  a  further  sale.  But  if  the  prop- 
erty cannot  be  sold  in  portions  without  injury,  the  whole  may  be 
sold,  and  the  entire  debt  with  interest  and  costs  paid,  there  being 
a  proper  rebate  of  interest  when  the  part  not  due  does  not  bear 
interest. 

1347.  Nebraska.^ — All  petitions  for  the  foreclosure  or  satisfac- 
tion of  mortgages  shall  be  filed  in  the  district  court  in  chancery 
where  the  mortgaged  premises  are  situated.  The  court  shall  have 
power  to  decree  a  sale  of  the  mortgaged  premises,  or  such  part 
thereof  as  may  be  sufficient  to  discharge  the  amount  due  on  the 
mortgage  and  the  cost  of  suit.  The  court  shall  not  only  have 
the  power  to  decree  and  compel  the  delivery  of  the  possession  of 
the  premises  to  the  purchaser  thereof,  but  on  the  coming  in  of  the 
report  of  sale  shall  have  power  to  decree  the  payment  by  the 
mortgagor  of  any  balance  of  the  mortgage  debt  that  may  remain 

^  §  1745.  Comp.  Stats.  1893,  pp.  960;962.     As  to  affi- 

2  Comp.  Stats.  1887,  Code  of  Civil  Pro-  davit  for  service  l)y  publication,  see  Ful- 
cedure,  §  56  ;  p.  158,  §§  358-360.  ton  v.  Levy,  21   Neb.  478,  32   N.  W.  Rep. 

3  Consoi.     Stats.     1891,    §§    5312-5328;  307. 

268 


FORECLOSURE    AND   REDEMPTION.  [§  1347. 

unsatisfied  after  a  sale  of  the  mortgaged  premises,  in  the  cases  in 
which  such  bahince  is  recoverable  at  law  ;  and  for  that  purpose 
may  issue  the  necessary  execution  against  other  property  of  the 
mortgMgor. 

While  such  petition  is  pending,  and  after  a  decree  rendered 
thereon,  no  proceedings  whatever  shall  be  had  at  law  for  the  recov- 
ery of  the  debt  secured  by  the  mortgage,  or  any  part  thereof,  unless 
authorized  by  the  court.  If  the  mortgage  debt  be  secured  by  the 
obligation  or  other  evidence  of  debt  of  any  other  person  besides 
the  mortgagor,  the  complainant  may  make  such  person  a  party  to 
the  petition,  and  the  court  may  decree  payment  of  the  balance  of 
such  debt  after  a  sale  of  the  mortgaged  premises,  and  may  enforce 
such  decree  as  in  other  cases.  Upon  filing  a  petition  for  the  fore- 
closure or  satisfaction  of  a  mortgage,  the  complainant  shall  state 
therein  whether  any  proceedings  have  been  had  at  law  for  the  re- 
covery of  the  debt  secured  thereby,  or  any  part  thereof,  and  whether 
such  debt,  oi*  aiiy  part  thereof,  has  been  collected  and  paid.^  If  it 
appear  that  any  judgment  has  been  obtained  in  a  suit  at  law  for 
the  money  demanded  by  such  petition,  or  any  part  thereof,  no  pro- 
ceedings shall  be  had  in  such  case,  unless,  to  an  execution  against 
the  property  of  the  defendant  in  such  judgment,  the  sheriff  or  other 
proper  officer  shall  have  returned  that  the  execution  is  unsatisfied  in 
whole  or  in  part,  and  that  the  defendant  has  no  property  whereof  to 
satisfy  such  execution  except  the  mortgaged  premises.^ 

All  sales  of  mortgaged  premises  under  a  decree  in  chancery  shall 
be  made  by  a  sheiiff,  or  some  other  person  authorized  by  the  court 
in  the  countj^  where  the  premises  or  some  part  of  them  are  situated  ; 
and  in  all  cases  where  the  sheriff  shall  make  such  sale  he  shall  act 
in  his  official  capacity,  and  he  shall  be  liable  on  his  official  bond  for 
all  his  acts  therein.  Deeds  shall  thereupon  be  executed  by  such 
sheriff,  which  shall  vest  in  the  purchaser  the  same  estate  that  would 
have  vested  in  the  mortgagee  if  the  equity  of  redemption  had  been 
foreclosed,  and  no  other  or  greater ;  and  such  deeds  shall  be  as  valid 
as  if  executed  by  the  mortgagor  and  mortgagee,  and  shall  be  an 
entire  bar  against  each  of  them,  and  all  parties  to  the  suit  in  which 
the  decree  for  such  sale  was  made,  and  against  their  heirs  respec- 
tively, and  all  persons  claiming  under  such  heirs. 

1  This  provision  applies  alone  to  formal  has  been  a  suit  at  law,  and  whether  any  part 
mortgages,  and  not  to  mortgages  or  liens  of  the  debt  has  been  collected.  Simmons 
arising  out  of  the  equities  between  the  par-  Hardware  Co.  v.  Brokaw,  7  Neb.  405.  As 
ties.  Dimick  v.  Grand  Island  Banking  Co.  to  publication  of  notice  of  sale,  see  Drew 
(Neb.)  5.^  N.  W.  Rep.  1066.  v.  Kirkham,  8  Neb.  477  ;  Parrat  v.  Neligh,  7 

2  The  petition  must  show  whether  there  Neb.  456. 

269 


§  1347.]  STATUTORY   PROVISIONS   RELATING   TO 

The  proceeds  shall  be  applied  to  the  discharge  of  the  debt  ad- 
judged to  be  due,  and  of  the  costs  ;  and  if  there  be  any  surplus  it 
shall  be  brought  into  court  for  the  use  of  the  defendant  or  of  the 
person  entitled  thereto,  subject  to  the  order  of  the  court. 

Whenever  a  petition  shall  be  filed  for  the  satisfaction  or  fore- 
closure of  any  mortgage,  upon  which  there  shall  be  due  any  interest 
on  any  portion  or  instalment  of  the  principal,  and  there  shall  be 
other  portions  or  instalments  to  become  due  subsequently,  the  peti- 
tion shall  be  dismissed  upon  the  defendant  bringing  into  court,  at 
any  time  before  the  decree  of  sale,  the  principal  and  interest  due, 
with  costs.  If,  after  a  decree  for  sale  entered  against  a  defendant 
in  such  case,  lie  shall  bring  into  court  the  principal  and  interest, 
with  costs,  the  proceedings  in  the  suit  shall  be  stayed  ;  but, the  court 
shall  enter  a  decree  of  foreclosure  and  sale,  to  be  enforced  by  a 
further  order  of  the  court  upon  a  subsequent  default  in  the  pay- 
ment of  any  portion  or  instalment  of  the  principal,  or  any  interest 
thereafter  to  become  due.  If  the  defendant  shall  not  bring  into 
court  the  amount  due,  with  costs,  or  if  for  any  other  cause  a  decree 
shall  pass  for  the  complainant,  the  court  may  direct  a  reference  to 
a  sheriff  to  ascertain  and  report  the  situation  of  the  mortgaged 
premises,  or  may  determine  the  same  on  oral  or  other  testimony ; 
and  if  it  shall  appear  that  the  same  can  be  sold  in  parcels,  without 
injury  to  the  parties,  the  decree  shall  direct  so  much  of  the  mort- 
gaged premises  to  be  sold  as  will  be  sufficient  to  pay  the  amount 
then  due  on  such  mortgage,  with  costs,  and  such  decree  shall  remain 
a  security  for  any  subsequent  default.  If  there  shall  be  any  default 
subsequent  to  such  decree  in  the  payment  of  any  portion  or  instal- 
ment of  the  principal,  or  any  interest  due  upon  such  mortgage,  the 
court  may,  upon  the  petition  of  the  complainant,  by  a  further  order 
founded  upon  such  first  decree,  direct  a  sale  of  so  much  of  the  mort- 
gaged premises  to  be  made,  under  such  decree,  as  will  be  sufficient 
to  satisfy  the  amount  so  due,  with  the  costs,  and  the  same  proceed- 
ings may  be  had  as  often  as  a  default  shall  happen. ^  If,  in  any  of 
the  foregoing  cases,  it  shall  appear  to  the  court  that  the  mortgaged 
premises  are  so  situated  that  a  sale  of  the  whole  will  be  most  bene- 
ficial to  the  parties,  the  decree  shall,  in  the  first  instance,  be  entered 
for  the  sale  of  the  whole  premises  accordingly.  In  such  case  the 
proceeds  of  such  sale  shall  be  applied  as  well  to  the  interest,  por- 

1  This  provision  has  no  application  in  an  thoiize  the  court  to  relieve  a  party  from  a 

action  for  the  foreclosure  of  a  mortgage,  forfeiture.     Beisel  v.  Artman,  10  Neb.  181, 

when   the  whole  amount   of   the   debt   se-  4  N.  W.  Rep.  1011. 
cured  is  due.     It  was  not  intended  to  au- 

270 


FORECLOSURE   AND   REDEMPTION.  [§  1348. 

tion,  or  instalment  of  the  principal  due  as  towards  the  whole  or 
residue  of  the  sum  secured  by  such  mortgage  and  not  due  and  pay- 
able at  the  time  of  such  sale  ;  and  if  such  residue  do  not  bear  inter- 
est, then  the  court  may  direct  the  same  to  be  paid,  with  a  rebate  of 
the  legal  interest  for  the  time  during  which  such  residue  shall  not 
be  due  and  payable  ;  or  the  court  may  direct  the  balance  of  the 
proceeds  of  such  sale,  after  paying  the  sum  due,  with  costs,  to  be 
put  out  at  interest  for  the  benefit  of  the  complainant,  to  be  paid  to 
him  as  the  instalments  or  portions  of  the  principal  or  interest  may 
become  due,  and  the  surplus  for  the  benefit  of  the  defendant,  his 
representatives  or  assigns,  to  be  paid  to  them  on  the  order  of  the 
court. 

The  order  of  sale  on  all  decrees  for  the  sale  of  mortgaged  prem- 
ises shall  be  stayed  for  the  period  of  nine  months  from  and  after 
the  rendition  of  such  decree  whenever  the  defendant  shall,  within 
twenty  days  after  the  rendition  of  such  decree,  file  with  the  clerk 
of  the  court  a  written  request  for  the  same  :  provided  that,  if  the 
defendant  make  no  such  request  within  said  twenty  days,  the  order 
of  sale  may  issue  immediately  after  the  expiration  thereof.^ 

1348.  Nevada.^ — Oi^ly  one  action  can  be  had  for  the  recov- 
ery of  the  debt  or  enforcement  of  the  mortgage.^  In  such  action 
judgment  is  rendered  for  the  amount  found  due,  and  for  a  sale  of 
the  property,  and  application  of  the  proceeds  to  payment  of  the 
debt ;  execution  may  issue  for  any  balance  there  may  appear  to  be 
due  by  the  sherifl's  return.  Any  surplus  the  court  may  cause  to 
be  paid  to  the  persons  entitled  to  it,  and  in  the  mean  time  may  di- 
rect it  to  be  deposited  in  court.  If  the  debt  be  not  all  due,  only  so 
much  of  the  property  as  is  necessary  to  satisfy  the  amount  due  shall 
be  sold ;  but  if  it  cannot  be  sold  in  portions  without  injury,  the 
whole  may  be  ordered  to  be  sold  in  the  first  instance  and  the  entire 
debt  paid,  with  a  proper  rebate  of  interest. 

A  certificate  of  the  sale  is  made  by  the  sheriff,  and  after  the 
time  allowed  for  redemption  has  expired  a  deed  is  executed.  The 
debtor,  or  his  successor  in  interest,  may  redeem  within  six  months 
on  paying  the  amount  of  the  bid,  in  the  money  or  currency  speci- 
fied in  the  judgment,  with  eighteen  per  cent,  thereon  in  addition, 
with  any  amount  paid  for  taxes  ;  and  also,  if  the  purchaser  be  a 
creditor  having  a  lien  prior  to  that  of  a  redemptioner  other  than 

1  Comp.  Stats.  1893,  p.  916 ;  Cousol.  Stats.  ^  jt  -would  seem  that  this  provision  would 
1891,  §  5004.  not  prevent  a  sale  under  a  power.     Bryant 

2  G.  S.  1885,  §§  3270-3272.  When  suit  v.  Carson  River  Lumbering  Co.  3  Nev.  313, 
may  be  brought.  Laws  1885,  ch.  95.  93  Am.  Dec.  403. 

271 


§§  1349,  1850.]      STATUTORY   PROVISIONS   RELATING   TO 

the  judgment  under  which  the  purchase  was  made,  the  amount 
of  such  lien,  with  interest.  There  may  be  successive  redemptions 
by  judgment  or  mortgage  creditors  within  sixty  days  after  the  last 
redemption.^ 

The  statute  in  this  State  entirely  changes  the  common  law  rule 
that  the  mortgagee  may  pursue  all  his  remedies  simultaneously 
by  action  upon  the  debt,  by  bill  to  foreclose,  and  by  ejectment. 
Here  ejectment  is  wholly  forbidden.  No  action  of  debt  can  be 
resorted  to  unless  the  mortgage  lien  be  abandoned.  The  remedy 
against  the  property  is  confined  to  foreclosure  and  sale.^  A  judg- 
ment for  the  debt  cannot  be  enforced  until  the  remedy  against  the 
property  is  exhausted.  The  plaintiff  may  if  he  choose  take  simply 
a  decree  in  equity,  without  a  common  law  judgment,  and  then,  if 
the  property  falls  short  of  paying  the  entire  debt,  he  may  afterwards 
have  execution  for  the  balance.  If  a  common  law  judgment  be 
taken  in  the  first  instance,  it  constitutes  no  lien  upon  other  property 
until  a  deficiency  is  duly  ascertained  and  docketed.^  Equity  has 
jurisdiction  of  a  bill  to  foreclose,  although  the  debt  has  been  pre- 
sented and  allowed  against  the  estate  of  the  deceased  raortgngor.* 

1349.  New  Hampshire.  —  Foreclosure  may  be  had  by  bill  in 
equity  when  the  complicated  relations  of  the  parties  render  pro- 
ceedings at  law  inadequate.^  The  modes  of  foreclosure  in  com- 
mon use  are,  by  entry  under  process  of  law  ;  by  peaceable  entry 
and  publication  of  notice  of  the  same  ;  or  by  advertisement  when 
the  mortgagee  is  already  in  possession.  In  either  case,  actual 
peaceable  possession  continued  for  one  year  from  the  time  of  entry, 
or  from  the  day  specified  in  the  notice  in  the  latter  mode,  forever 
bars  the  right  of  redemption.*^ 

1350.  New  Jersey.  —  Foreclosure  is  under  the  general  jurisdic- 
tion of  the  courts  of  chancery  ;  but  where  all  the  premises  are  situate 
in  the  same  county,  the  circuit  court  of  the  county  has  the  same 
jurisdiction  and  power  as  the  court  of  chancery."  The  court  may 
decree  a  sale  oE  the  mortgaged  premises,  or  of  such  part  of  them  as 
shall  be  sufficient  to  discharge  the  debt  and  costs  ;  which  sale  shall 
be  made  either  by  one  of  the  masters  of  the  court,  or  by  the  sheriff 

1  G.  S.  1885,  §§  3253-3258.  whether  it  is  for  his  interest  to  exercise  it. 

2  Hyman  v.  Kelly,  1  Nev.  179.  Eastman  v.  Thayer,  60  N.  H.  405. 

3  Weil  V.  Howard,  4  Nev.  384.  ^  Rev.  1877,  p.  705.  In  an  action  of 
*  Corbett  V.  Rice,  2  Nev.  330.  ejectment  for  the  recovery  of  mortgaged 
5  Aiken  v.  Gale,  37  N.  H.  501,  510.  lands,  and  in  actions  upon  the  bond,  a  ten- 
«  P.  S.  1891,  ch.  138,  §  14.     See  §§  1241-  der  of  the  sum  due  with  costs  is  a  satisfac- 

1243.  The  time  for  redemption  will  not  tion  of  the  mortgage,  and  the  mortgagee 
be  extended  to  enable  a  party  to  ascertain    may  thereupon  be   compelled  to  recouvey. 

R.  S.  1877,  pp.  701,  702. 

272 


FORECLOSURE   AND   REDEMPTION. 


[§  1350. 


of  the  county  where  the  premises  are  situated  by  virtue  of  a  writ  of 
fieri  facias.  The  officer  making  the  sale  executes  the  proper  deed. 
An  absent  defendant  may  at  any  time  before  the  sale  cause  his  ap- 
pearance to  be  entei'ed,  and  upon  the  payment  of  costs  the  proceed- 
ings may  be  stayed,  and  may  afterwards  go  on  as  if  his  appearance 
had  been  duly  entered  in  the  beginning.  When  a  decree  is  had  for 
the  non-payment  of  an  instalment  of  interest  or  principal  before  the 
whole  mortgage  debt  is  due,  and  it  shall  appear  to  the  court  that  a 
part  of  the  mortgaged  premises  cannot  be  sold  to  satisfy  the  amount 
without  material  injury  to  the  remaining  part,  and  that  it  is  just 
and  reasonable  that  the  whole  should  be  sold  together,  the  court 
may  decree  a  sale  of  the  whole,  and  apply  the  proceeds  of  the  sale, 
or  so  much  as  may  be  necessary,  as  well  to  the  payment  of  the 
amount  then  due  as  to  the  payment  of  the  whole  or  residue  of  the 
debt,  making  a  proper  rebate  of  interest  upon  the  part  of  the  debt 
not  then  due  and  payable.  When  the  defendant  has  entered  an  ap- 
pearance but  has  filed  no  answer,  execution  for  sale  is  not  issued 
until  the  expiration  of  such  time  as  may  be  fixed  by  the  rules  of 
the  court,  not  less  than  two,  nor  more  tiian  four,  months.^  If  the 
mortgagor  or  any  of  those  holding  under  him  has  absconded,  or  is 
unknown  to  the  holder  of  the  mortgage,  service  may  be  made  by 
publication.^ 

1  Rev.  1877,  pp.  116-118,  §§  71-77.  witliin  six  months  after  the  entry  of  such 

2  Laws  1873,  j).  161  ;  R.  S.  1877,  p.  704.      jiul<;nient  for  the  balance  of  the  debt. 

By  a  recent  statute.  Laws  1880,  eh.  170,  Confirmation.  The  sheriff' or  otlier  officer 
amended  in  Laws  1881,  ch.  147,  Supp.  1886,  who  may  be  directed  to  sell  any  mortgaged 
pp.  489,  490,  it  is  provided  that  in  all  pro-  premisesshall,  after  makiug  such  sale,  report 
ceedings  to  foreclose  mortgages  no  decree  the  same  within  five  days  thereafter  to  the 
shall  be  rendered  for  any  balance  of  money  court  out  of  which  an  execution  or  order  to 
which  may  be  due  complainant  over  and  sell  is  issued,  stating  the  name  of  the  pur- 
above  proceeds  of  the  sale,  and  no  execu-  chaser  or  purchasers  and  the  price  obtained, 
tion  shall  issue  for  the  collection  of  such  and,  if  the  said  court  or  a  judge  thereof 
balance.  shall  approve  of  such  sale,  they  shall  con- 
Suit  for  deficiency.  In  all  cases  where  a  firm  the  same  as  valid,  and  shall,  by  rule  of 
bond  and  mortgage  has  or  may  hereafter  court  allowed  in  open  court,  or  bj'  a  judge 
be  given  for  the  same  debt,  all  proceedings  at  chambers,  direct  the  said  sheriff  or  other 
to  collect  said  debt  shall  be,  first,  to  foreclose  officer  to  execute  a  good  and  sufficient  con- 
the  mortgage,  and,  if  there  is  a  deficiency,  veyance  in  law  to  the  purchaser ;  provided 
then  to  proceed  on  the  bond ;  and  that  all  that  no  sale  shall  be  confirmed,  or  further 
suits  on  the  bond  shall  be  commenced  within  proceedings  be  had,  until  the  court  or  such 
six  months  from  the  date  of  the  sale  of  the  judge  is  satisfied  by  evidence  that  the  prop- 
mortgaged  premises.  Such  recovery  on  the  erty  has  been  sold  at  the  highe.st  and  best 
bond  opens  the  foreclosure  and  sale,  and  price  the  same  would  then  bring  in  cash,  and 
the  person  against  whom  the  judgment  has  such  evidence  may  be  in  the  form  of  affi- 
been  recovered  may  redsem  the  property  by  davits. 

paying  the  full  amount  for  which  the  decree  This  act  applies  to  mortgages  given  before 

was  rendered,  with  interest  and  costs;  pro-  the  date  of  its  passage;  and  it  is  not  un- 

vided  that  a  suit  for  redemption  is  brought  constitutional  as  taking  away  a  remedy  for 

VOL.  II.                 18  273 


§  1350.] 


STATUTORY    PROVISIONS   RELATING   TO 


When  a  foreclosure  is  sought  for  an  instalment  only  of  the  debt, 
the  remainder  not  being  due,  the  court  will  not  direct  the  whole 
premises  to  be  sold,  if  they  can  be  divided ;  and  if  a  decree  has 
been  entered  for  the  sale  of  the  whole  premises  when  they  are 
manifestly  divisible,  the  court  may  in  its  discretion  regulate  the 
execution  of  the  decree.^ 

When  no  one  is  necessarily  interested  in  the  mortgaged  premises 
other  than  the  mortgagor  and  mortgagee,  and  the  premises  are  sub- 
ject to  one  mortgage  only,  foreclosure  may  be  had  by  scire  facias  in 
the  supreme  court  or  court  of  common  pleas  of  the  county  where 

enforcing  a  contract  which  existed  when  the  under   this    act    for    a   resale.     Delaware, 

contract  was  made,  because  a  more  effica-  Lackawanna  &  Western  R.  R.  Co.  v.  Scran- 

cious  remedy  of   the  same  sort  remains  at  ton,  34  N.  J.  Eq.  429. 

law.     Newark.  Sav.  Inst.  v.  Forman,  33  N.  One  claiming  an  interest  in  the  premises, 

J.  Eq.  436  ;  Naar  v.  Union  &  Essex  Land  who  has  been  deprived  of  an  opportunity  to 

Co.  34  N.  J.  Eq.  IIL  protect  that  interest  through  the  neglect  of 

The  purchaser  at  a  foreclosure  sale,  under  his  counsel,  may  apply  for  a  resale.     Mnt. 

a  mortgage  made  before  the  enactment  of  Benefit  L.  Ins.  Co.  v.  Gould,  34  N.  J.  Eq. 

this  statute,  is  unaffected  by  the  provisions  417. 

for  redemption,  although  at  the  foreclosure  Prior  to  the  statute  of  1880,  the  chan- 
sale  enough  was  received  to  pay  the  prior  cellor  might  decree  the  payment  of  any 
mortgage  in  full,  and  a  small  sum  upon  a  excess  of  the  mortgage  debt  above  the  pro- 
second  mortgage  which  was  made  after  the  ceeds  of  sale,  by  any  of  the  parties  to  the 
.statute  took  effect.  Champion  v.  Hinkle,  suit  who  may  be  liable  for  it  either  at  law 
45  N.  J.  Eq.  162,  16  Atl.  Rep.  701.  or  in  equity.     Rev.  1877,  p.  118,  §  76.     The 

The  terms  of  the  statute  are  not  waived  practice  in  such  cases  was  to  issue  an  order 

by  giving,  with  the  bond,  a  warrant  to  con-  after  sale,  reciting  the  proceedings  under 

fess   judgment,   and   a   judgment   entered  the  execution,  aud  the  existence  and  amount 

upon  such  bond  before  the  foreclosure  of  of  the  deficiency  as  ascertained  by  the  state- 

the   accompanying   mortgage  is   irregular,  ment  of  the  officer  by  whom  the  decree  of 

Hellyer  v.  Baldwin,  53  N.  J.  L.  141,  20  Atl.  sale  was  executed,  and  to  award  an  execu- 

Rep.  1080.  tion  to  make  the  amount  with  interest  and 

Grantees  who  have  assumed  the  payment  costs   of   the   order   and   execution.     Mut. 

of  a  mortgage  are  still  liable  to  the  mort-  Life  Ins.  Co.  v.  Southard,  25  N.  J.  Eq.  337. 

gagee  if  a  deficiency  remain  after  foreclos-  In  a  suit  to  foreclose  a  mortgage,  all  per- 

ure,  and  tlieir  liability  may  be  enforced  by  sons  claiming  an  interest  in  tlie  property, 

an   independent   suit   in    equity.     Allen  v.  under  any  mortgage  or  lien  not  recorded 

Allen,  34  N.J.  Eq.  493;  Chancellor  y.  Trap-  at  the  time  of  filing  the  bill,  are  bound  by 

hagen,  41  N.  J.  Eq.  369,  7  Atl.  Rep.  505.  the  proceedings.     Rev.  118,  §  78  ;  McCrea 

The  object  of  this  provision  is  to  prevent  v.  Newman,  46  N.  J.  Eq.  473,  19  Atl.  Rep. 

a  sacrifice  of  the  property,  so  far  as  it  may  198. 

be  done,  by  requiring  proof  that  the  prop-  A  suit  for  a  deficiency  cannot  be  main- 

erty  brought  the  best  price  then  obtainable,  tained  in  Pennsylvania  against   a  resident 

It  was  not  intended  that  the  court  should  of  that  State  more  than  six  months  after 

set  aside  sales  until  an  adequate  price  should  the  foreclosure  of  the  land  situate  in  New 

be  obtained  for  the  property.  Delaware,  Jersey.  The  act  of  1881  being  an  incident 
Lackawanna  &  Western  R.  R.  Co.  v.  Scran- 
ton,  34  N.  J.  Eq.  429.  The  owner  of  an 
equity  of  redemption  whose  property  has 
been  assigned  for  the  benefit  of  his  creditors 
has   such  an  interest  that  he    may   apply 

274 


of  the  contract,  the  lex  loci  contractus  must 
govern.  Sea  Grove  B.  &  L.  Asso.  v.  Stock- 
ton, 148  Pa.  146,  23  Atl.  Rep.  1063. 

1  Am.  Life  &  Fire  Ins.   &   Trust  Co.  v. 
Ryerson,  6  N.  J.  Eq.  9. 


FORECLOSURE   AND   REDEMPTION.       [§§  1350  a,  1351. 

the  lands  lie.^  Under  this  process,  after  judgment,  the  premises  are 
sold  in  the  same  manner  as  under  other  executions  for  the  sale  of 
real  estate,  and  conveyed  to  the  purchaser.^  If  there  is  any  sur- 
plus after  paying  the  mortgage  debt,  it  is  paid  into  court  by  the 
sheriff  or  other  officer  making  the  sale;  and  the  court  orders  it  to 
be  applied  in  satisfaction  of  any  judgment  or  other  lien  upon  the 
property,  if  there  be  any,  but  otherwise  to  be  paid  to  the  debtor. 

There  is  no  redoraption  after  sale. 

1350  rt.  New  Mexico. 3  —  No  real  property  shall  be  sold  upon 
foreclosure  of  any  mortgage,  mortgage  deed,  trust  deed,  or  any 
other  written  instrument  which  may  operate  as  a  mortgage,  under 
or  by  any  order,  judgment,  or  decree  of  any  court  in  this  Territory, 
until  ninety  days  after  the  date  of  the  order,  judgment,  or  decree, 
within  which  time  the  mortgagor,  or  any  one  for  him,  may  pay  off 
the  decree  and  discharge  the  mortgage  and  avoid  the  sale.  And  all 
real  property  which  may  be  hereafter  sold  under  any  mortgage, 
mortgage  deed,  trust  deed,  or  any  other  written  instrument  which 
may  operate  as  a  mortgage,  by  virtue  of  a  power  of  sale  contained 
in  the  said  mortgage,  mortgage  deed,  trust  deed,  or  other  written 
instrument,  or  annexed  to  or  accompanying  the  same,  and  which 
may  not  be  sold  under  any  order,  judgment,  or  decree  of  any  court, 
may  be  redeemed  by  the  mortgagor  or  his  assignee,  or  any  other 
parties  interested  in  the  said  real  estate,  by  paying  the  purchaser 
the  amount  paid,  with  interest  at  the  rate  of  twelve  per  centum  per 
annum,  at  any  time  within  one  year  after  the  date  of  such  sale. 

1351.  New  York.*  —  In  an  action  to  foreclose  a  mortgage  upon 
real  property,  if  the  plaintiff  becomes  entitled  to  final  judgment,  it 
must  direct  the  sale  of  the  property  mortgaged,  or  of  such  part 
thereof  as  is  sufficient  to  discharge  the  mortgage  debt,  the  expenses 
of  the  sale,  and  the  costs  of  the  action.^ 

1  Rev.  1877,  p.  703.  the  action  be  settled  before  judgment,  the 

2  As  to  advertising  and  adjourning  the  phiintiff  is  entitled,  upon  the  amount  re- 
sale, see  Hewitt  v.  Moutdair  Ry.  Co.  25  N.  ceived  in  settlement,  to  one  half  the  above 
J.  Eq.  392.  rates.     When  a  part  of  the  mortgage  debt  is 

3  Laws  1889,  eh.  51.  not  due,  if  the  final  judgment  directs  a  sale 
*  Bliss's  Code  of  Civil  Procedure   1890,    of  the  whole  property,  the  percentages  are 

§§  1626-1637.  computed  upon  the  whole  sum  unpaid  upon 

°  Upon  final  judgment  the   plaintiff,  in  the  mortgage.     If   the  judgment   directs  a 

addition  to  the  other  costs  allowed,  is  en-  sale  of  a  part  only,  the  percentages  are  com- 

titled  to  the  following  percentage  upon  the  puted  upon  the  sum  actually  due,  and  upon 

amount  due  upon  the  mortgage :  Upon  a  a  sale  of  the  remainder  the  percentages  are 

sum  not  exceeding  $200,  ten  jier  centum;  computed  upon  that  amount ;  buttheaggre- 

uj)on  an  additional  sum  not  exceeding  $400,  gate  of  the  percentages  cannot  exceed  tlie 

five  per  centum;  upon  an  additional  sum  sum  which  would  have  been  allowed  if  the 
not  exceeding  $1,000,  two  ])er  centum.     If 

275 


§  1351.] 


STATUTORY    PROVISIONS    RELATING    TO 


Any  person  who  is  liable  to  the  plaintiff  for  the  payment  of  the 
debt  secured  by  the  mortgage  may  be  made  a  defendant  in  tlie 
action  ;  and  if  he  has  appeared,  or  has  been  personally  served  with 
the  summons,  the  final  judgment  may  award  payment  by  him  of 
the  residue  of  the  debt  remaining  unsatisfied  after  a  sale  of  the 
mortgaged  property  and  the  application  of  the  proceeds  pursuant 
to  the  directions  contained  therein. ^ 

While  an  action  to  foreclose  a  mortgage  upon  real  property  is 
pending,  or  after  final  judgment  for  the  plaintiff  therein,  no  other 
action  shall  be  commenced  or  maintained  to  recover  any  part  of  the 
mortgage  debt  without  leave  of  the  court  in  which  the  former  action 
was  brought.^  The  complaint  in  an  action  to  foreclose  a  mortgage 
upon  real  property  must  state  whether  any  other  action  has  been 
brought  to  recover  any  part  of  the  mortgage  debt,  and  if  so  whether 
any  part  thereof  has  been  collected. 

Where  final  judgment  for  the  plaintiff  has  been  rendered  in  an 
action  to  recover  an}^  part  of  the  mortgage  debt,  an  action  shall  not 
be  commenced  or  maintained  to  foreclose  the  mortgage  unless  an 
execution  against  the  property  of  the  defendant  has  been  issued  upon 
the  judgment  to  the  sheriff  of  the  county  where  he  resides,  if  he 
resides  witliin  the  State,  or,  if  he  resides  without  the  State,  to  the 
sheriff  of  the  county  where  the  judgment  roll  is  filed,  and  has  been 
returned  wholly  or  partly  unsatisfied.'^ 


entU'e  sum  secured  had  beeu  due  when  final 
judgment  was  reudered. 

The  court  may  also  in  its  discretion  allow 
a  sum  not  exceeding  two  and  one  half  per 
centum  upon  the  sum  due  upon  the  mort- 
gage, and  not  exceeding  in  the  aggregate 
$200.  Bliss's  Code  of  Civil  Procedure  1890, 
§§  3252,  3253. 

1  A  contingent  decree  for  the  payment 
of  any  deficiency  may  be  made  before  sale. 
McCarthy  v.  Graham,  8  Paige,  480. 

The  master's  deed  passes  the  title  from 
the  time  of  its  delivery.  Fuller  v.  Van 
Geesen,  4  Hill,  171. 

-  A  suit  at  law  need  not  be  actually  dis- 
continued before  filing  the  bill,  but  upon 
the  filing  of  it  the  suit  is  suspended.  Wil- 
liamson V.  Champlin,  8  Paige,  70. 

This  provision  does  not  apply  to  an  action 
on  a  deficiency  judgment,  as  that  becomes 
a  new  obligation  on  being  docketed,  and  is 
conclusive  on  defendant;  and  it  is  immate- 
rial that  plaintiff  in  foreclosure  purchased 
the  property  at  the  sale,  and  made  a  profit 

276 


thereon.  Schultz  v.  Mead,  8  N.  Y.  Supp. 
663. 

The  granting  of  such  permission  is  not  a 
matter  of  course.  The  application  must  be 
upon  cause  shown ;  and  its  favorable  con- 
sideVation  is  to  be  determined  according 
to  principles  of  equity.  Equitable  L.  Ins. 
Co.  V.  Stevens,  63  N.  Y.  341 ;  Scofield  v. 
Doscher,  72  N.  Y.  49 1 .  While  the  court  may 
have  the  power  to  grant  such  leave  to  sue 
nunc  pro  tunc  after  commencement  of  the 
suit,  by  an  ex  parte  application,  the  practice 
is  not  in  the  orderly  administration  of  jus- 
tice, and  should  not  be  encouraged.  The 
defendant  should  have  an  oppoitunity  to 
be  heard  in  the  first  instance.  Walton  v. 
Grand  Belt  Copper  Co.  11  N.  Y.  Supp.  110, 
following  United  States  Ins.  Co.  v.  Poillon, 
6  N.  Y.  Supp.  370. 

^  This  prohibition  is  not  limited  to  a  suit 
against  the  mortgagor,  but  applies  to  a  suit 
against  a  surety,  or  one  who  has  assumed 
to  pay  the  mortgage.  Pattison  v.  Powers,  4 
Paige,  549.     And  to  a  suit  upon  a  guaranty 


FORECLOSURE  AND  REDEMPTION. 


[§  1351. 


The  plaintiff  must,  at  least  twenty  days  before  a  final  judgment 
directing  a  sale  is  rendered,  file,  in  the  clerk's  office  of  each  county 
where  the  mortgaged  property  is  situated,  a  notice  of  the  pendency 
of  the  action,  which  must  specify,  in  addition  to  other  particulars 
required,  the  date  of  the  mortgage,  the  parties  thereto,  and  the 
time  and  place  of  recording  it.^ 

A  conveyance  upon  a  sale  made  pursuant  to  a  final  judgment,  in 
an  action  to  foreclose  a  mortgage  upon  real  property,  vests  in  the 
purchaser  the  same  estate  only  that  would  have  vested  in  the  mort- 
gagee if  the  equity  of  redemption  had  been  foreclosed.^  Such  a 
conveyance  is  as  valid  as  if  it  were  executed  by  the  mortgagor  and 
mortgagee,  and  is  an  entire  bar  against  each  of  them,  and  against 
each  party  to  the  action  who  was  duly  summoned,  and  every  person 
claiming  from,  through,   or   under  a  party  by  title   accruing  after 


of  the  mortgage.  McKeriian  v.  Eobinson, 
84  N.  Y.  105.  But  it  does  not  apfjly  to  a  suit 
upon  a  guaranty  of  the  mortgage  debt. 
Schaaf  V.  O'Brien,  8  Daly,  181.  lu  case  of 
a  guaranty  of  collection,  it  is  implied  that 
the  guarantor  is  not  liable  until  the  rem- 
edy upon  the  security  has  been  exhausted. 
Baxter  v.  Smack,  17  How.  Pr.  18.3,  184. 

If  the  plaintiff  untruly  aver  that  no  pro- 
ceedings have  been  had,  the  defendant  may 
plead  a  judgment  at  law  without  averring 
that  no  execution  has  been  issued  on  it. 
North  River  Bank  v.  Rogers,  8  Paige,  648. 
See,  also,  as  to  the  effect  of  a  judgment, 
Grosvenor  v.  Day,  Clarke,  109. 

The  mere  commencement  of  proceedings 
at  law,  if  no  judgment  has  been  recovered, 
will  not  prevent  the  filing  of  a  bill  to  fore- 
close. But  the  suit  cannot  be  prosecuted 
without  the  permission  of  the  court.  This 
may  be  given  in  some  cases,  as,  for  in- 
stance, where  the  suit  is  against  a  third 
person  liable  for  the  debt,  but  who  is  not  a 
party  to  the  bill  of  foreclosure,  and  might 
not  be  liable  to  a  decree  for  the  deficiency 
if  he  were  a  party,  and  where  the  premises 
are  not  sufficient  to  pay  the  debt.  The 
court  will  permit  the  suit  at  law  to  proceed 
so  far  as  to  test  the  validity  of  a  defence 
set  up,  but  will  not  allow  an  execution  to 
be  taken  out  on  the  judgment  without  fur- 
ther order  of  court.  Suydam  v.  Bartle,  9 
Paige,  294.  See,  also,  Thomas  v.  Brown, 
9  Paige,  370;  Engle  v.  Underbill,  .3  Edw, 
249. 


If  an  action  has  been  commenced  without 
previous  authority,  the  court  may  by  sub- 
sequent order  made  nunc  pro  tunc  grant  per- 
mission. McKernan  v.  Robinson,  84  N.  Y. 
105. 

1  A  decree  without  proof  of  such  notice, 
though  irregular,  is  not  void.  Potter  v. 
Rowland,  8  N.  Y.  448;  Curtis  v.  Hitch- 
cock, 10  Paige,  399  ;  White  v.  Coulter,  1 
Hun,  357. 

Under  Code  of  Civ.  Pro.  1890,  §  1331, 
providing  for  the  giving  of  a  bond  upon 
taking  an  appeal  from  a  judgment  direct- 
ing a  sale  in  order  to  stay  execution,  an  un- 
dertaking against  waste  and  for  the  value 
of  use  and  occupation  operates  as  a  stay  of 
proceedings,  without  a  covenant  to  pay  a 
deficiency.  The  bond  may  be  in  either 
form,  that  is,  to  pay  for  use  and  occupation, 
or  to  pay  the  deficiency.  Grow  v.  Garlock, 
29  Hun,  598;  "Werner  v.  Tuch,  52  Hun, 
269,  119  N.  Y.  632,  23  N.  E.  Rep.  573,  5 
N.  Y.  Supp.  219. 

2  When  the  sale  is  made  by  a  master,  no 
report  or  confirmation  is  necessary  before 
making  the  deed.  Mouell  v.  Lawrence,  12 
Johns.  521. 

If  the  sale  be  made  by  a  referee  appointed 
for  the  purpose,  his  duties  are  ministerial 
in  their  nature,  and  he  must  follow  the 
terms  of  sale,  and  is  personally  liable  if  he 
di,sregards  them.  Day  v.  Bergen,  53  N.  Y. 
404. 


277 


§  1351.]  STATUTORY   PROVISIONS  RELATING   TO 

the  filing  of  the  notice  of  the  pendency  of  the  action,  as  above  pre- 
scribed. 

If  there  is  any  surplus  of  the  proceeds  of  the  sale  after  paying 
the  expenses  of  the  sale,  and  satisfying  the  mortgage  debt  and  the 
costs  of  the  action,  it  must  be  paid  into  court  for  the  use  of  the 
person  or  persons  entitled  thereto.^  If  any  part  of  the  surplus 
remains  in  court  for  the  period  of  three  months,  the  court  must,  if 
no  application  has  been  made  therefor,  and  may  if  an  application 
therefor  is  pending,  direct  it  to  be  invested  at  interest  for  the  ben- 
efit of  the  person  or  persons  entitled  thereto,  to  be  paid  upon  the 
direction  of  the  court.  Where  an  action  is  brought  to  foreclose 
a  mortgage  upon  real  property,  upon  which  a  portion  of  the  princi- 
pal or  interest  is  due,  and  another  portion  of  either  is  to  become 
due,  the  complaint  must  be  dismissed,  without  costs  against  the 
plaintiff,  upon  the  defendant  paying  into  court,  at  any  time  before 
a  final  judgment  directing  a  sale  is  rendered,  the  sum  due,  and 
the  plaintiff's  costs.  In  such  case,  if,  after  a  final  judgment  direct- 
ing a  sale  is  rendered,  but  before  the  sale  is  made,  the  defendant 
pays  into  court  the  amount  due  for  principal  and  interest  and  the 
costs  of  the  action,  together  with  the  expenses  of  the  proceedings 
to  sell,  if  any,  all  proceedings  upon  the  judgment  must  be  stayed  ; 
but  upon  a  subsequent  default  in  the  payment  of  principal  or  interest, 
the  court  may  make  an  order  directing  the  enforcement  of  the  judg- 
ment for  the  purpose  of  collecting  the  sum  then  due.^ 

Where  the  mortgage  debt  is  not  all  due,  and  the  mortgaged  prop- 
erty is  so  circumstanced  that  it  can  be  sold  in  parcels  without 
injury  to  the  interests  of  the  parties,^  the  final  judgment  must 
direct  that  no  more  of  the  property  be  sold,  in  the  first  place,  than 
is  sufficient  to  satisfy  the  sum  then  due,  with  the  costs  of  the  action 
and  expenses  of  the  sale;*  and  that,  upon  a  subsequent  default  in 
the  payment  of  principal  or  interest,  the  plaintiff  may  apply  for  an 
order  directing  the  sale  of  the  residue,  or  of  so  much  thereof  as  is 
necessai-y  to  satisfy  the  amount  then  due,  with  the  costs  of  the  ap- 
plication and  the  expenses  of  the  sale.  The  plaintiff  may  apply 
for  and  obtain  such  an  order  as  often  as  a  default  happens.^     If  in 

1  Bostwick  V.  Pulver,  3  How.  Pr.  69.  instalment  becoming  due  a  second  reference 

2  See,  also,  Brinckerhoff  y.  Thallhimer,  2  is  not  necessary.  Knapp  v.  Burnham,  11 
Johns.  Ch.  486  ;   Ellis  v.  Craig,  7  Johns.  7.  Paige,  330. 

3  An  order  of  sale  will  not  be  made  with-  *  The  master  is  not  bound  to  sell  iu  par- 
out  reference.     Ontario  Bank  v.  Strong,  2  eels  unless  the  decree  so  directs.    WoodhuU 
Paige,  301.       -  v.  Osborne,  3  Edw.   614;    Lansing  v.   Ca- 
lf the  master  has  reported  that  the  prem-  pron,  1  Johns.  Ch.  617. 

ises  cannot  be  sold  in  parcels,  on  another        ^  If  the  mortgage  be  conditioned  for  the 

278 


FORECLOSURE   AND    REDEMPTION. 


[§  1B51. 


such  case  it  appears  that  the  mortgager!  property  is  so  circum- 
stanced that  a  sale  of  the  whole  will  be  most  beneficial  to  the  par- 
ties, the  final  judgment  must  direct  that  the  whole  property  be 
sold  ;  1  that  the  proceeds  of  the  sale,  after  deducting  the  costs  of 
the  action  and  the  expenses  of  the  sale,  be  either  applied  to  the 
satisfaction  of  the  whole  sum  secured  by  the  mortgage,  with  such  a 
rebate  of  interest  as  justice  requires,  or  be  first  applied  to  the  pay- 
ment of  the  sum  due,  and  the  balance,  or  so  much  thereof  as  is 
necessary,  be  invested  at  interest  for  the  benefit  of  the  plaintiff,  to 
be  paid  to  him  from  time  to  time  as  any  part  of  the  principal  or 
interest  becomes  due.^ 


support  of  the  mortgagee  during  life,  no 
decree  for  subsequent  breaches  can  be  made 
without  supplementary  proceedings.  Fer- 
guson V.  Ferguson,  2  N.  Y.  360. 

So  where  interest  only  is  due.  Brincker- 
hoff  V.  Thallhimer,  2  Johns.  Ch.  486  ;  Ly- 
man V.  Sale,  2  Johns.  Ch.  487 ;  Campbell 
i;.  Macomb,  4  Johns.  Ch.  534  ;  Delabigarre 
V.  Bush,  2  Johns.  490;  Brevoort  u.  Jackson, 
1  Edw.  447. 

1  A  sale  of  the  whole  may  be  decreed 
when  the  mortgage  is  inadequate  security 
and  the  mortgagor  is  irresponsible,  al- 
though the  whole  debt  be  not  due,  unless 
the  mortgagor  will  pay  the  amount  due,  or 
give  security  for  the  residue.  Suffern  v- 
Johnson,  1  Paige,  450,  19  Am.  Dec.  440. 
The  court  may  order  a  sale  of  the  whole 
premises,  with  a  view,  not  to  the  satisfac- 
tion of  the  mortgage,  but  to  the  better  pro- 
tection of  the  subsequent  parties  in  interest. 
Livingston  v.  Mildrum,  19  N.  Y.  440,  443; 
Snyder  v.  Stafford,  II  Paige,  71  ;  Deforest 
V.  Farley,  4  Hun,  640. 

So  when  there  is  a  second  mortgage  on 
the  same  premises,  which  is  due,  upon  the 
foreclosure  of  the  first  mortgage,  although 
a  part  only  of  that  is  due,  the  court  will 
direct  a  sale  of  the  whole  premises,  or  so 
much  as  will  satisfy  the  whole  of  both 
mortgages,  unless  the  defendant  pay  the 
amount  due  with  costs  before  sale.  Hall 
V.  Bamber,  10  Paige,  296.  Although  the 
premises  consist  of  two  or  more  parcels,  if 
they  have  previously  been  held,  used,  and 
conveyed  together  as  one  farm,  a  sale  of 
the  whole  in  one  parcel  is  good.  Anderson 
V.  Austin,  34  Barb.  319.  And  see  Wolcott 
V.  Schenck,  23  How.  Pr.  385  ;  VVoodhull  v. 
0:,borne,  2  Edw.  614. 


2  The  judgment  may  direct  the  delivery 
of  the  possession  of  the  property  to  the 
person  entitled  thereto.  If  a  party,  or  his 
representative  or  successor,  who  is  bound 
by  the  judgment,  withholds  possession  from 
the  person  thus  declared  to  be  entitled 
thereto,  the  court,  besides  punishing  the 
disobedience  as  a  contempt,  may  in  its  dis- 
cretion, by  order,  require  the  sheriff  to  put 
that  person  in  possession.  Such  an  order 
must  be  executed  as  if  it  was  an  execution 
for  the  delivery  of  the  possession  of  the 
property.  Code  of  Civil  Procedure  1880, 
§  1675. 

The  officer  making  the  sale  must,  out  of 
the  proceeds,  unless  the  judgment  other- 
wise directs,  pay  all  taxes,  assessments,  and 
water  rates,  which  are  liens  upon  the  prop- 
erty sold,  and  redeem  the  property  sold 
from  any  sales  for  unpaid  taxes,  assess- 
ments, or  water  rates  which  have  not 
apparently  become  absolute.  The  sums 
necessary  to  make  those  payments  and  re- 
demptions are  deemed  expenses  of  the  sale, 
within  the  meaning  of  that  expression,  as 
used  in  any  provision  of  articles  second, 
third,  or  fourth  of  this  title.  Code  of  Civil 
Procedure  1880,  §  1676. 

The  sale  must  be  at  public  auction  to  the 
highest  bidder.  Notice  of  sale  must  be 
given  as  follows:  1.  A  written  or  printed 
notice  thereof  must  be  conspicuously  fas- 
tened up,  at  least  forty-two  days  before  the 
sale,  in  three  public  places  in  the  town  or 
city  where  the  sale  is  to  take  place,  and 
also  in  three  public  places  in  the  town  or 
city  where  the  property  is  situated,  if  the 
sale  is  to  take  place  in  another  town  or 
citv.  2.  A  copy  of  the  notice  must  be 
published,  at  least  once  in  each  of  the  six 

279 


§§  1352,  1352  a.]     statutory  provisions  relating  to 

1352.  North  Carolina.  —  Mortgages  are  foreclosed  by  action  in 
the  nature  of  a  bill  in  equity.^  The  suit  must  be  brought  in  the 
county  in  which  the  premises  or  some  part  of  them  are  situated.^ 
If  any  party  having  an  interest  in  the  mortgaged  premises  or  a 
lien  upon  them  is  unknown  to  the  plaintiff,  and  his  residence  can- 
not with  reasonable  diligence  be  ascertained,  upon  affidavit  of  such 
fact  the  court  may  grant  an  order  that  the  notice  be  served  by  pub- 
lishing the  same  for  six  weeks,  once  in  each  week  successively,  in  a 
newspaper  printed  in  the  county  where  the  premises  lie,  if  there 
be  any  ;  otherwise  in  some  newspaper  printed  in  Raleigh,  and  in 
one  printed  in  the  county  where  tlie  premises  lie.^  There  is  no 
redemption  after  sale.  Judgment  may  be  rendered  against  any 
one  personally  liable  for  the  mortgage  debt  for  a  deficiency  after 
the  sale,  though  this  could  not  be  done  under  the  former  equity 
practice.'^ 

1352  a.  North  Dakota  and  South  Dakota.^  —  Foreclosure  is  by 
an  equitable  suit  in  accordance  with  the  Code.  The  action  must  be 
brought  in  the  district  court  of  the  county  where  the  premises  or 
some  part  of  them  are  situated  ;  judgment  may  be  rendered  for  the 
amount  of  the  debt  against  the  mortgagor,  and  a  decree  may  be 


weeks  immediately  preceding  the  sale,  in  a 
newspaper  published  in  the  county,  if  there 
is  one ;  or,  if  there  is  none,  in  the  news- 
paper printed  at  Albany  in  which  legal 
notices  are  required  to  be  published. 

In  case  the  property  is  situated  wholly  or 
partly  in  a  city  in  whicli  a  daily  newspaper 
is  published,  notice  must  be  given  by  pub- 
lishing notice  of  the  sale  at  least  twice  in 
each  week  for  the  three  successive  weeks 
immediately  preceding  the  sale  in  one,  or 
in  the  city  of  New  York  or  the  city  of 
Brooklyn  in  two,  of  such  papers.  Notice 
of  a  postponement  of  the  sale  must  be 
published  in  the  paper  or  papers  wherein 
the  notice  of  sale  was  published.  The 
terms  of  the  sale  must  be  made  known  at 
the  time  of  sale;  and  if  the  ])roperty,  or 
any  part  thereof,  is  to  be  sold  subject  to  a 
right  of  dower,  charge,  or  lien,  that  fact 
must  be  declared  at  the  time  of  sale.  If 
the  property  consists  of  two  or  more  dis- 
tinct buildings,  farms,  or  lots,  they  must  be 
sold  separately  ;  except  that  where  two  or 
more  buildings  are  situated  on  the  same 
city  lot,  and  access  to  one  is  obtained 
through  the  other,  they  may  be  sold  to- 
gether. Code  of  Civil  Procedure  1880, 
280 


§   1G78;     Code   of   Civil   Procedure    1878, 
§  1434. 

A  foreclosure  sale  of  two  buildings  is 
not  invalidated  because  they  have  been 
sold  together.  The  word  "  must "  in  this 
provision  is  directory  merely.  Wallace  v. 
Ferly,  6  How.  Pr.  22.5. 

1  All  distinction  between  actions  at  law 
and  suits  in  equity  is  abolished.  Constitu- 
tion, §  1,  art.  14;  Battle's  Revisal  (1873), 
137. 

2  Code  1883,  §  221.  The  Superior  Court 
has  jurisdiction  of  the  action  although  the 
debt  secured  be  less  than  two  hundred 
dollars.  The  action  is  not  founded  on  the 
contract  merely,  but  on  the  equity  growing 
out  of  the  relation  of  mortgagor  and  mort- 
gagee. The  enforcement  of  such  an  eciuity 
does  not  fall  within  the  jurisdiction  of 
a  justice,  because  the  sum  secured  on  the 
contract  would  be  cognizable  before  him. 
Murphy  v.  McNeill,  82  N.  C.  221. 

3  Code  of  Civ.  Pro.  1892,  §  221. 

*  Fleming  v.  Sitton,  1  Dev.  &  Bat.  Eq. 
621. 

5  Code  of  Civ.  Pro.  1883,  §§  616-634; 
Comp.  Laws  1887,  §§  51 50-5159,  5420,  5421 , 
5430-5448. 


FORECLOSURE   AND   REDEMPTION. 


[§1352  a. 


made  for  the  sale  of  the  premises,  or  of  such  part  as  may  be  suffi- 
cient to  pay  the  amount  of  the  judgment.  The  court  may  order 
and  compel  the  delivery  of  the  possession  of  the  premises  to  the 
purchaser  after  the  expiration  of  one  year  from  the  sale,  and  may 
direct  an  execution  to  issue  for  the  balance  remaining  unsatisfied. 
While  this  action  is  pending,  no  proceedings  at  law  can  be  had 
for  the  recovery  of  the  debt  or  any  part  of  it  unless  authorized  by 
the  court.  If  any  person  other  than  the  mortgagor  is  liable  for  the 
debt,  a  judgment  for  the  balance  remaining  unsatisfied  after  the 
sale  may  be  entered  against  him  as  well  as  the  mortgagor,  and  may 
be  enforced  by  execution  or  other  process.  The  complainant  must 
state  in  his  complaint  whether  any  proceedings  have  been  had  at 
law  or  otherwise  for  the  recovery  of  the  debt ;  and  if  any  execu- 
tion has  been  issued  for  any  part  of  the  debt,  the  proceedings  can- 
not go  on  unless  the  execution  be  returned  unsatisfied  in  whole  or 
in  part ;  and  that  the  defendant  has  no  property  whereon  to  satisfy 
it,  except  the  mortgaged  premises. 

Sales  under  a  decree  of  foreclosure  are  made  by  a  referee,  sheriff, 
or  deputy  sheriff  of  the  county,  or  other  person  appointed  by  the 
court,  in  the  county  or  subdivision  of  it  where  the  premises  or  some 
part  of  them  are  situated.^  The  officer  making  the  sale  must  give 
to  the  purchaser  a  certificate  in  writing,  setting  forth  a  description 

1  In  South  Dakota  the  s.ale  must  be  at  plied;  all  of  which  receipts  and  cancelled 
public  auction  between  the  hours  of  nine  evidences  of  debt  or  security  shall  be  by- 
o'clock  in  the  forenoon  and  the  setting  of  said  officer  kept  and  preserved  in  his  office 
the  sun  on  that  day,  in  the  county  in  which  until  called  for  by  the  debtor.  If,  however, 
the  premises  to  be  sold,  or  some  part  there-  the  original  evidences  of  sale  and  security 
of,  are  situated,  and  must  be  made  by  the  have  been  deposited  in  court,  no  cancella- 
sheriff  of  the  county  or  his  deputy,  to  the  tion  shall  be  required,  but  receipts  shall  be 
highest  bidder.     Laws  1891,  ch.  84.  taken  as  in  case  of  partial  payments.    Laws 

On   all    foreclosure   sales    conducted    by  1893,  ch.  118. 
tiie  sheriff  or  his  deputy,  it  is  the  duty  of        All  real  property  sold  upon  foreclosure 

such  officer  to  apply  the  proceeds  of  such  of  mortgage  by  advertisement,  order,  judg- 

sale,  first,  to  the  payment  of  the  expenses  ment,  or  decree  of  court,  may  be  redeemed 

of  such  sale,  for  which  he  shall  take  receipts ;  at  any  time  within  one  year  after  such  sale, 

second,  in  payment  of  the  costs  on  account  in   like  manner  and  to  the  same  effect  as 

of  which  the  sale  was  made;  and  when  the  provided  for  redemption  of  real  property  sold 

proceeds  of  the  sale  are  sufficient,  such  offi-  upon  execution,  by,  l,The  mortgagor  or  his 

cer   shall  take   up   all  notes,   bonds,    mort-  successor  in  interest  in  the  whole  or  any  part 

gages,  or  other  evidences  of  the  debt  and  of  the  property ;  2,  A  subsequent  judgment 

security,  and  cancel  the  same  by  plain  and  or  mortgage  creditor  has  the  rights'  of   a 

legible  notation  upon  the  face  thereof,  giv-  redemptioner. 

ing  date  and  amounts  so  paid  ;  and  when  If,  at  the  expiration  of  one  year  from  the. 
the  proceeds  are  insufficient,  he  shall  make  date  of  sale,  the  mortgagor  or  his  successor 
a  like  indorsement  thereon  of  the  amount  in  interest  shall  pay  all  taxes  and  all  inter- 
paid,  and  shall  also  take  from  the  judgment  est  then  due,  and  interest  for  one  year  in 
or  mortgage  creditor,  his  agent  or  attorney,  advance,  the  time  of  redeinjttion  shall  be 
a  receipt  for  the  amount  so  paid  and  aj)-  extended  one  year.     Laws  1893,  ch.  140. 

281 


§  1353.]  STATUTORY    PROVISIONS    RELATING    TO 

of  the  property  sold,  the  price  bid  for  each  parcel,  and  the  whole 
price  paid ;  and  if  the  premises  are  not  redeemed  within  one  year 
from  the  time  of  sale,  he  executes  a  deed  to  the  purchaser.^  Re- 
demption within  that  time  may  be  made  by  paying  the  purchaser 
the  snm  for  which  the  premises  were  sold,  with  interest  at  the  rate 
of  twelve  per  cent,  per  annum.  The  proceeds  of  the  sale  are  ap- 
plied to  the  payment  of  the  debt,  and  any  surplus  there  may  be  is 
brought  into  court  for  the  use  of  the  persons  entitled  to  it. 

When  the  action  is  brought  for  an  instalment  of  tiie  debt  or  of 
the  interest,  and  other  instalments  are  not  then  due,  the  bill  is  dis- 
missed upon  payment,  at  any  time  before  the  decree  of  sale,  of  the 
principal  and  interest  due,  with  costs.  If,  after  a  decree  of  sale, 
the  money  is  brought  into  court,  the  proceedings  are  stayed  until  a 
further  default,  in  case  of  which  the  court  may  enforce  the  collec- 
tion of  such  subsequent  instalment.  The  court  may  direct  a  refer- 
ence to  a  master  to  ascertain  whether  the  premises  shall  be  sold  in 
parcels  or  together,  and  may  direct  the  sale  to  be  made  accordingly. 
If  it  appears  that  a  sale  of  the  whole  together  will  be  most  bene- 
ficial to  the  parties,  the  decree  may  be  in  the  first  instance  entered 
for  the  sale  of  the  whole.  In  that  case  the  proceeds  are  applied  to 
the  payment  as  well  of  the  part  of  the  debt  already  due  as  that 
which  is  not  then  due ;  and  if  the  residue  which  is  not  then  paya- 
ble does  not  bear  interest,  a  proper  rebate  of  interest  is  made.^ 

1353.  Ohio.3 — An  action  for  the  sale  of  real  property  under  a 
mortgage  must  be  brought  in  the  county  in  which  the  property  lies, 
except  that,  when  the  property  is  situate  in  more  than  one  county, 
the  action  may  be  brought  in  either.  When  a  mortgage  is  fore- 
closed, a  sale  of  the  premises  shall  be  ordered  ;  and  when  the  prem- 
ises to  be  sold  are  in  one  or  more  tracts,  the  court  may  direct  the 
officer  who  makes  the  sale  to  subdivide,  appraise,  and  sell  the  same 
in  parcels,  or  to  sell  any  one  of  the  tracts  as  a  whole.  When  the 
mortgaged  property  is  situate  in  more  than  one  county,  the  court 
maj'  order  the  sheriff  or  master  of  each  to  make  sale  of  the  property 
in  his  county,  or  may  direct  one  officer  to  sell  the  whole  ;  the  court 

1  A  certificate  by  a  deputy  in  his  name  in  equity  was  abolished  in  1853,  but  the 
as  deputy  sheriff,  while  perhaps  irregular  mode  of  proceeding  is  in  accordance  with 
in  not  using  the  name  of  his  principal,  is  general  equity  principles.  The  former 
not  void.  Hodgdon  v.  Davis,  6  Dak.  21,  statute  remedy  by  sciVe  /ac/as  did  not  pre- 
50  N.  W.  Rep.  478.  elude  foreclosure  by  bill  in  equity.     Anon. 

2  Redeiuption  may  be  made  as  provided  1  Ohio,  235.  The  system  of  procedure  by 
in  case  of  foreclosure  by  advertisement,  scire  facias  was  adopted  by  the  territorial 
S  1728.  government    in  1795  from  the  Statutes  of 

8  2  R.  S.  1892,  §§  5021,  5316,  5317.  The  Pennsylvania.  Biggerstaff  v.  Loveland,  8 
distinction  between  actions  at  law  and  suits    Ohio,  45. 

282 


FORECLOSURE   AND   REDEMPTION.  [§  1353  a. 

mny  direct  that  the  property,  when  it  consists  of  a  single  tract,  be 
sold  as  one  tract,  or  in  separate  parcels,  and  shall  direct  whether 
appraisers  shall  be  selected  for  each  county,  or  one  set  for  all ;  and 
shall  also  direct  whether  publication  of  the  sale  shall  be  made  in  all 
the  counties  or  in  one  county  only.  , 

The  plaintiff  may  also  ask  in  his  petition  for  a  judgment  for 
the  money  claimed  to  be  due  ;  and  such  proceedings  shall  be  had 
and  judgment  rendered  as  in  other  civil  actions  for  the  recovery 
of  money  only.^ 

A  receiver  may  be  appointed  when  it  appears  that  the  mortgaged 
property  is  in  danger  of  being  lost,  removed,  or  materially  injured, 
or  that  the  condition  of  the  mortgage  has  not  been  performed,  and 
the  property  is  probably  insufficient  to  discharge  the  mortgage 
debt.2 

There  is  no  redemption  after  sale. 

1353  a.  Oklahoma  Territory.^  —  Actions  for  a  sale  of  real  prop- 
erty under  a  mortgage  must  be  brought  in  the  county  in  which  the 
property  is  situated,  except  in  case  the  land  is  situated  in  two  or 
more  counties,  the  action  may  be  brought  in  any  county  in  which 
any  part  of  it  is  situated.  In  actions  to  enforce  a  mortgage,  deed 
of  trust,  or  other  lien  or  charge,  a  personal  judgment  or  judg- 
ments shall  be  rendered  for  the  amount  or  amounts  due,  as  well  to 
the  plaintiff  as  other  parties  to  the  action  having  liens  upon  the 
mortgaged  premises  by  mortgage  or  otherwise,  with  interest  thereon, 
and  for  the  sale  of  the  property  charged  and  the  application  of  the 
proceeds,  or  such  application  may  be  reserved  for  the  further  order 
of  the  court ;  and  the  court  shall  tax  the  costs,  attorney's  fees,  and 
expenses  which  may  accrue  in  the  action,  and  apportion  the  same 
among  the  parties  according  to  their  respective  interests,  to  be  col- 
lected on  the  order  of  sale  or  sales  issued  thereon.  When  the  same 
mortgage  embraces  separate  tracts  of  land  situated  in  two  or  more 
counties,  the  sheriff  of  each  county  shall  make  sale  of  the  lands 
situated  in  the  county  of  which  he  is  sheriff.  No  real  estate  sliall 
be  sold  for  the  payment  of  any  money,  or  the  performance  of  any 
contract  or  agreement  in  writing,  in  security  for  which  it  may  have 
been  pledged  or  assigned,  except  in  pursuance  of  a  judgment  of  a 
court  of  competent  jurisdiction  ordering  such  sale.  A  receiver  may 
be  appointed  in  an  action  by  a  mortgagee  for  the  foreclosure  of  his 

1  See  Keller  v.  Wenzell,  23  Ohio  St.  579  ;    note,  although  the  mortgage  is  executed  by 
Wood  V.  Stanherry,  21  Ohio  St.  142;  Ham-    ouly  a  part  of  them.     King  v.  Safford,  19 
ilton  V.  Jefferson,  13  Ohio,  427  ;    Myers  v.     Ohio  St.  587. 
Hewitt,  16  Ohio,  449,  456.     There  may  be        2  u.  g.  1892,  §  5587. 
judgment   agaiust   all    the   makers   of    the        ^  gtats.  1893,  §§  3920,  4144,  4290. 

283 


§  1354.]  STATUTORY   PROVISIONS   RELATING   TO 

mortgage  and  sale  of  the  mortgaged  property,  where  it  appears  that 
the  mortgaged  property  is  in  danger  of  being  lost,  removed,  or 
materially  injured,  or  that  the  condition  of  the  mortgage  has  not 
been  performed,  and  that  the  property  is  probably  insufficient  to 
discharge  the  mortgage  debt. 

1354.  Oregon.^  —  Mortgages  are  foi-eclosed  by  suit  in  equity 
and  the  property  adjudged  to  be  sold.^  If  a  promissory  note  or 
other  personal  obligation  for  the  payment  of  the  debt  has  been 
given,  the  court  also  decrees  a  recovery  of  the  amount  of  such  debt. 
Any  person  having  a  lien  subsequent  to  the  plaintiff  upon  the  same 
property,  and  any  person  who  has  given  a  promissory  note  or  other 
personal  obligation  for  the  payment  of  the  debt,  must  be  made  a 
defendant  in  the  suit;^  and  any  person  having  a  prior  lien  may 
be  made  defendant  at  the  option  of  the  plaintiff.  Any  defendant 
having  a  lien  may  have  a  decree  in  the  same  manner  as  if  he  were 
plaintiff.  When  a  decree  is  given  foreclosing  two  or  more  liens 
upon  the  same  property  or  any  portion  thereof  in  favor  of  different 
persons  not  united  in  interest,  such  decree  must  determine  and  spe- 
cify the  order  of  time,  according  to  their  priority,  in  which  the 
debts  secured  by  such  liens  shall  be  satisfied  out  of  the  proceeds  of 
the  sale  of  the  property. 

The  decree  may  be  enforced  b}^  execution  as  an  ordinary  decree 
for  the  recovery  of  money,  except  that,  when  a  decree  of  foreclosure 
and  sale  is  given,  an  execution  may  issue  thereon  against  the  prop- 
erty adjudged  to  be  sold.*  If  the  decree  is  in  favor  of  the  plaintiff 
only,  the  execution  may  issue  as  in  ordinai'y  cases  ;  but  if  it  be  in 
favor  of  different  persons,  not  united  in  interest,  it  shall  issue  upon 
the  joint  request  of  such  persons,  or  upon  the  order  of  the  court  or 
judge  thereof,  on  the  motion  of  either  of  them.  When  the  decree 
is  also  against  the  defendants  or  any  one  of  them  in  person,  and  the 
proceeds  of  the  sale  of  the  property  upon  which  the  lien  is  fore- 
closed is  not  sufficient  to  satisfy  the  decree,  as  to  the  sum  remain- 
ing unsatis6ed  the  decree  may  be  enforced  by  execution  as  in  ordi- 
nary cases.     When  in  such  case  the  decree  is  in  favor  of  different 

1  Hill's  Annot.  Laws  1892,  §§  414-422.        no  jurisdiction  after  the  death  of  the  mort- 

2  The  method  of  foreclosing  prescribed  gagor.  Verdier  v.  Bigne,  16  Oreg.  208, 
by  this  section  is  exclusive  and  imperative,     19  Pac.  Kep.  64. 

and   an   attempt   to    prescribe   a  different        ^  Lauriat  v.  Stratton,  6  Sawyer,  339. 
method  in  the  mortgage  or  writing  creating        *  The  sheriff  need  not  make  a  levy  before 

a  lien  upon   real    property  must  be  disre-  proceeding  to  pell.     He  may  sell  premises 

garded.     Thompson  v.  Marshall,  21   Oreg.  consisting  of  several  town  lots  eitlier  sep- 

171,  27  Pac.  Rep.  957.  arately  or  together,  in  his  discretion.    Bank 

The  jurisdiction  of  such  suits  is  vested  in  of  British  Columbia  v.  Page,  7  Oreg.  454. 
the  circuit  courts.     But  these  courts  have 

284 


FORECLOSURE   AND   REDEMPTION.  [§  1355. 

persons  not  united  in  interest,  it  shall  be  deemed  a  separate  decree 
as  to  such  persons,  and  may  be  enforced  accordingly. 

During  the  pendency  of  an  action  of  law  for  the  recovery  of  a 
debt  secured  by  any  lien,  a  suit  cannot  be  maintained  for  the  fore- 
closure of  such  lien,  nor  thereafter,  unless  judgment  be  given  in 
such  action  that  the  plaintiff  recover  such  debt  or  some  part  thereof, 
and  an  execution  thereon  against  the  property  of  the  defendant  in 
the  judgment  is  returned  unsatisfied  in  whole  or  in  part.  When  a 
suit  is  commenced  to  foreclose  a  lien  by  which  a  debt  is  secured, 
which  debt  is  payable  in  instalments  either  of  interest  or  principal, 
and  any  of  such  instalments  is  not  then  due,  the  court  shall  decree 
a  foreclosure  of  the  lien,  and  may  also  decree  a  sale  of  the  property 
for  the  satisfaction  of  the  whole  of  such  debt,  or  so  much  thereof 
as  may  be  necessary  to  satisfy  the  instalment  then  due,  with  costs 
of  suit ;  and  in  the  latter  case  the  decree  of  foreclosure  as  to  the 
remainder  of  the  property  may  be  enforced  by  an  order  of  sale  in 
whole  or  in  part,  whenever  default  shall  be  made  in  the  payment 
of  the  instalments  not  then  due.  If,  before  a  decree  is  given,  the 
amount  then  due,  with  the  costs  of  suit,  is  brought  into  court  and 
paid  to  the  clerk,  the  suit  shall  be  dismissed  ;  and  if  the  same  be 
done  after  decree  and  before  sale,  the  effect  of  the  decree  as  to 
the  amount  then  due  and  paid  shall  be  terminated,  and  the  execu- 
tion, if  any  have  issued,  be  recalled  by  the  clerk.  When  an  instal- 
ment not  due  is  adjudged  to  be  paid,  the  court  shall  determine  and 
specify  in  the  decree  what  sum  shall  be  received  in  satisfaction 
thereof,  which  sum  may  be  equal  to  such  instalment  or  otherwise, 
according  to  the  present  value  thereof. 

Redemption  may  be  had  from  a  foreclosure  sale,  in  like  manner 
as  upon  an  execution  sale,  within  four  months  after  the  date  of  the 
order  con  fir  mine;  the  sale.^ 

1355.  Pennsylvania.  —  In  the  case  of  mortgages  given  by  cor- 
})orations  the  Supreme  Court  of  the  Commonwealth  may  exercise 
all  the  power  and  jurisdiction  of  a  court  of  chancery .^  There  has 
never  been  any  distinct  chancery  tribunal  in  this  State,  and  the 
chancery  powers  conferred  previous  to  the  above  statute  never  em- 
braced the  subject  of  mortgages  ;  therefore  there  was  no  jurisdic- 
tion to  decree  a  foreclosure  or  t-ale  under  a  mortgage ;  but  as  the 

1  Hill's  Annot.  Laws  1892,  §§  299-307,  act  of  April  11,  1862.  This  provision  is 
418.  constitutional  as  applied  to  mortgages  made 

For  provision  for  entry  of  satisfaction  of  before  the  act  was  passed.  McCiirdy's  Ap- 
a  mortgage  of  record  when  foreclosed,  see  peal,  65  Pa.  St.  290;  McElrath  v.  Pitts- 
Laws  1893,  p.  81.  burg  &  Steubenville  R.  R.  Co.  55  Pa.  St. 

2  Brightly's   Purdon's    Dig.    1872,   593;  189. 

285 


§  1355.]  STATUTORY   PROVISIONS  RELATING   TO 

court  had  jurisdiction  of  trusts,  it  could  in  behalf  of  a  cestui  que  trust 
compel  trustees  under  a  mortgage  with  a  power  of  sale  to  execute 
the  power  according  to  its  terms.  The  court  declined,  however,  to 
do  more  than  to  control  or  direct  the  execution  of  a  power  of  sale 
already  conferred,  and  would  not  itself  exercise  the  power.^  The 
above  provision  was  accordingly  enacted  in  order  tliat  there  might 
be  a  remedy  more  adequate  for  the  administration  of  the  large 
mortgages  which  corporations  are  in  the  habit  of  making  than 
was  furnished  by  the  writ  of  scire  facias  by  which  mortgages  are 
generally  foreclosed. 

The  mode  of  foreclosing  mortgages  in  other  cases  is  by  scire 
facias.  When  default  has  been  made  on  a  mortgage,  the  holder  of 
the  mortgage,  at  any  time  after  the  expiration  of  twelve  months^ 
next  ensuing  the  last  day  when  the  mortgage  money  ought  to  be 
paid,  or  other  condition  performed,  may  sue  forth  a  writ  of  scire 
facias  ^  from  the  court  of  common  pleas  for  the  county  or  city 
where  the  lands  lie,  directed  to  the  proper  officer,  requiring  him  to 
make  known  to  the  mortgagor,  or  his  heirs,  executors,  or  adminis- 
trators, that  he  show  cause  why  the  mortgaged  premises  should  not 
be  seized  and.  taken  on  execution  for  payment  of  the  mortgage 
money,  with  interest.  If  the  defendant  appears,  he  may  plead  sat- 
isfaction of  part  or  all  of  the  mortgage  money,  or  make  any  other 
lawful  plea,  in  avoidance  of  the  deed  or  debt;  but  if  he  do  not  ap- 
pear on  the  day  the  writ  is  made  returnable,  if  damages  only  are 
recoverable,  an  inquest  is  to  be  forthwith  charged  to  inquire  thereof, 
and  judgment  is  entered  that  the  plaintiff  have  execution  by  levari 
facias,  by  virtue  of  which  the  premises  are  taken  in  execution  and 

i  Bradley  v.  Chester  Valley  R.  R.  Co.  36  the  mortgage  provides  that  on  a  failure  to 

Pa.  St.  141 ;  Ashhurst  v.  Montour  Iron  Co.  pay  any  instalment  for  a  certain  period  the 

35  Pa.  St.  30.  whole  debt  should  become  due  and  collecti- 

■■^  Brightly's    Purdon's     Dig.    1883,    pp.  h\e, scire  facias  may  issue  fortlivvith  upon 

596-599.     This   limitation  may  be  waived  the  default  for  the  whole  dubt.     Hosie  v. 

in    the    mortgage    subsequently,    but    the  Gray,  71  Pa.  St.  198.    The  provisions  of  a 

waiver  must  be  explicit,  and  by  the  party  stay  law  may  be  waived  in  the  mortgage  by 

authorized  to  make  it ;  and  must  be  in  the  express  provision.     Drexel  v.  JNIiller,  49  Pa. 

mortgage  itself,  and  not  in  the  bond.     Ken-  St.  246.     Upon  any  default  ejectment  may 

nedy  v.  Ross,  25  Pa.  St.   256;   Huling  v.  be  maintained  for  possession  of   the   land. 

Drexell,  7  Watts,  126;  Walker  v.  Tracey,  1  Smitli  v.  Shuler,  12  S.  &  R.  240;  Fickes  v. 

Phila.  225;  Whitecar  v.  Worrell,  1   Phila.  Ersick,  2  Rawle,  166;  Martin  v.  Jackson, 

44  ;  Bhick  V.  Galway,  24  Pa.  St.  18.  27  Pa.  St.  504.     But  this  process  only  gives 

3  The  mortgagee  cannot  proceed  by  scire  possession,  which  may  be  maintained  until 

facias  to  recover  successive  instalments  of  the  debt  is  paid.     Colwell  v.  Hamilton,  10 

a  mortgage   debt.     This    remedy   puts    an  Watts,  413, 417. 

end  to  the  security,   and   disposes   of   the  A  scire  facias  does  not  lie  upon  an  un- 

whole  estate.     Fickes  v.  Ersick,  2   Rawle,  sealed    equitable    mortgage.      Spencer    v. 

166  ;  Ewart  v.  Irwin,  1  Phila.  78.     But  if  Haynes,  12  Phila.  (Pa.)  452. 

286 


FORECLOSURE   AND   REDEMPTION.  [§  1355. 

exposed  to  sale  and  conveyed  to  the  buyer,  and  the  money  rendered 
to  the  mortgage  creditor ;  but,  for  want  of  buyers,  to  be  delivered 
to  the  creditor,  in  the  same  manner  as  land  taken  upon  execution 
for  other  debts.  When  the  lands  are  sold  or  delivered  tliey  are 
held  discharged  of  all  equity  of  redemption,  and  all  incumbrances 
made  or  suffered  by  the  mortgagor,  his  heirs  or  assigns  ;  but  before 
sale  is  made,  notice  must  be  given  in  writing  of  the  time  and  place 
of  sale  in  the  same  manner  as  is  directed  concerning  sales  upon  ex- 
ecution.^ Any  surplus  realized  above  the  debt  and  costs  must  be 
returned  by  the  officer  to  the  defendant.  On  a  reversal  of  the 
judgment  under  which  a  sale  has  been  made,  the  purchaser  is  pro- 
tected in  his  title,  unless  the  process  was  void.^  When  an  action  is 
brought  on  a  mortgage,  a  memorandum  of  the  names  of  the  parties 
and  date  of  the  action  is  furnished  to  the  recorder  and  entered  upon 
the  record  of  the  mortgage.  An  assignee  of  the  mortgage  may  sue 
in  his  own  name,  or  in  the  name  of  the  mortgagee  for  the  use  of  the 
assignee ;  or  the  record  may  be  amended  after  suit  has  been  com- 
menced, and  the  proper  persons  made  parties.  Mortgages  of  lease- 
hold estates  are  foreclosed  in  the  same  manner.^ 

If  the  mortgagee  has  released  a  portion  of  the  premises,  the 
defendant  in  sch-e  facias  may  plead  that  the  balance  claimed  is 
greater  than  in  a  just  proportion  should  be  levied  on  the  premises 
described  in  the  writ.'*     In  general  as  to  the  defences  that  may  be 

1  This  is  a  proceeding  in  rem.  The  ef-  Pa.  St.  402;  "Wilson  i'.  McCulloiigh,  19  Pa. 
feet  of  the  sale  is  to  extinguish  the  equity  of  St.  77  ;  Burd  v.  Dansdale,  2  Binn.  80. 
redemption,  and  transfer  the  estate  as  fully  3  Before  this  statute,  after  an  assignment 
as  it  exi?ted  in  the  mortgagor  before  the  duly  executed  and  recorded,  no  suit  could 
mortgage.  Hartman  v.  Ogborn,  54  Pa.  St.  be  maintained  in  the  name  of  the  assignor 
120,  93  Am.  Dec.  679.  The  wife's  dower  is  for  the  use  of  those  having  the  equitable 
barred  though  she  did  not  join  in  t!ie  niort-  interest  in  the  mortgage.  Pryor  v.  Wood, 
gage.  Scott  V.  Crosdale,  2  Dall.  127.  The  31  Pa.  St.  142.  If  the  assignment  was  not 
sale  must  be  by  the  sheriff  of  the  county  formal  and  legal,  the  suit  could  be  main- 
where  the  land  lies.  He  can  make  the  sale  tained  by  the  assignor.  Partridge  v.  Part- 
outside  of  it.  Menges  v.  Oyster,  4  W.  &  S.  ridge,  38  Pa.  St.  78;  Moore  v.  Harrisburg 
20,  39  Am.  Dec.  56.  As  to  distribution  Bank,  8  Watt5,  138,  151. 
of  surplus,  see  Selden's  Appeal,  74  Pa.  St.  Upon  petition  of  the  mortgagor  or  owner 
323.  of  the  property,  the  court  may  direct  scire. 

The  mortgagor  should    not   be   made  a  facias  to  issue.     If  the  holder  of  the  mort- 

j)arty  if  he  no  longer  has  any  interest  in  gage  neglects  for  sixty  days   to  issue  the 

the  property.     Broomell  v.  Anderson  (Pa.),  writ,  the   owner   may    pay    into  court  the 

8  Atl.  Rep.  764.  amount  admitted  by  him    to  be   due,   and 

As  to  sale  under  a  mortgage  given  by  a  the  court  may  thereupon  direct  satisfaction 

life  tenant,  see  Dalesman's  App.  127  Pa.  St.  to    be  entered.      Brightly's    Purdou's  Dig. 

348,  17  Atl.  Rep.  1086,  1100.  Supp.  2189.     A  creditor  is  not  an  "owner" 

'^  See  Caldwell  v.  Walters,  18  Pa.  St.  79,  for  this  purpose.     Guarantee  Deposit  Co.  v. 

84,  54  Am.  Dec.  592;  Evans  v.  Meylcrt,  19  Powell,  150  Pa.  St.  16,  24  Atl.  Rep.  345. 

*  Brightly's  Purdon's  Dig.  1883,  p.  480. 

287 


1355.] 


STATUTORY   PROVISIONS    RELATING   TO 


taken,  although  the  action  be  one  at  law,  equitable  defences  are 
not  necessarily  excluded.^  Any  defence  may  be  set  up  in  this  ac- 
tion that  may  be  set  up  against  the  mortg;)ge  debt ;  as  that  there 
was  no  consideration,  or  that  this  was  void  or  illegHl,^  or  that  the 
consideration  has  failed,  as  in  the  case  of  a  purchase-money  mort- 
gage, when  the  mortgagor  has  been  ejected  by  reason  of  a  para- 
mount title  in  another.^  But  a  purchaser  of  several  lots  of  land, 
having  secured  the  unpaid  purchase-money  by  a  mortgage  upon 
one  of  the  tracts  of  which  he  has  taken  a  separate  deed,  cannot 
set  up  as  a  defence  to  the  mortgage  a  failure  of  the  title  of  the  lots 
not  included  in  the  mortgage.* 

This  is  a  local  action  and  must  issue  in  the  county  where  the 
land  lies.^  It  is  regarded  chiefly  as  a  proceeding  in  rem  to  fore- 
close the  mortgage  and  convert  the  security  into  money.  It  is  a 
proceeding  in  personam  only  so  far  as  notice  to  the  parties  is  pre- 
scribed by  the  act.*^  The  action  is  applicable  to  all  mortgages, 
whether  recorded  or  not.  It  is  founded  on  the  instrument  itself, 
and  not  upon  the  record  of  it.  The  proper  plea  in  denial  of  the 
instrument  is  non  est  factum  and  not  nul  tiel  record.  But  on  the 
trial   an  exemplification  of    the    record    may  be   used    as  evidence 


1  Ewart  V.  Irwiu,  1  Phila.  78,  7  Leg.  Int. 
134. 

2  Raguet  V.  Eoll,  7  Ohio,  77.  In  this 
case  the  defence  was  that  the  consideration 
was  in  ))art  for  the  forbearance  of  acriminal 
prosecution. 

Tliis  defence  must  be  made  before  the 
court,  and  not  before  the  auditor  appointed 
to  make  distribution.  Tiiompson's  App. 
126  Pa.  St.  434,  17  Atl.  Rep.  663. 

3  Morris  v.  Buckley,  11  S.  &  R.  168. 
Otherwise  in  Illinois :  McFadden  v.  Fortier, 
20  Ilk  .509  ;  Wacker  v.  Straub,  88  Pa.  St.  32. 

■*  risk  V.  Duncan,  83  Pa.  St.  196. 

5  Tryon  v.  Munson,  77  Pa.  St.  250. 
When  the  real  estate  bound  by  a  mortgage 
is  situate  in  two  or  more  counties,  it  is  law- 
ful for  the  mortgagee  or  his  assignee  to  issue 
his  writ  of  scire  facias  to  enforce  the  collec- 
tion of  said  mortgage  in  the  courts  of  either 
of  the  said  counties  where  the  mortgage 
may  be  recorded,  and  proceed  to  obtain 
judgment  thereon;  provided,  that  the  sale 
made  under  a  writ  of  levari  facias,  issued 
on  the  judgment  in  the  county  where  the 
judgment  shall  have  been  obtained,  shall  be 
sufficient  to  vest  in  the  purchaser  the  entire 
estate   of   the   mortgagor  in    the   premises 

288 


bound  by  the  mortgage,  as  well  in  the  county 
where  scire  facias  may  have  been  issued 
as  in  the  other  counties  where  the  mortgage 
may  have  been  recorded;  and  provided,  fur- 
ther, that  before  sale  be  made  under  the 
writ  of  levari  facias,  an  exemplification  of 
the  record  of  the  judgment  shall  be  taken 
from  the  county  where  the  same  was  ob- 
tained, and  entered  in  the  courts  of  the 
other  counties  where  said  mortgage  may 
have  been  recorded ;  and  advertisement  of 
the  sale  shall  be  made  by  the  sheriff,  in  at 
least  one  newspaper  published  in  each  of  the 
other  counties,  in  addition  to  the  advertise- 
ment as  now  directed  by  law  in  the  county 
in  which  the  sale  is  to  be  made.  The  court 
of  the  county  in  which  the  judgment  may 
be  obtained  upon  any  such  mortgage  as 
aforesaid  may  make  any  order  which  may 
appear  to  them  just  and  equitable,  directing 
the  lands  to  be  sold  in  parcels,  as  divided 
by  the  county  lines  or  otherwise,  as  may 
best  suit  the  interest  of  parties  having  liens 
upon  the  land  in  the  different  counties. 
Purdon's  Ann.  Dig.  p.  2111,  §§  6,  8. 

6  Hartmau  ;;.  Ogborn,  54  Pa.  St.  120,  93 
Am.  Dec.  679;  Wilson  v.  McCullough,  19 
Pa.  St.  77  ;  Brown  v.  Scott,  51  Pa.  St.  357. 


FORECLOSURE   AND    REDEMPTION.        [§§  1356,  1357. 

of  the  instrument  itself.^  No  one  except  the  mortgagor,  or  upon 
his  death  his  personal  representatives,  is  a  necessary  party  to  the 
action.  A  purchaser  from  the  mortgagor  or  other  terre-tenant 
need  not  be  made  a  party  to  the  suit  ;  though  it  is  the  general 
practicie  to  give  such  purchaser  or  tenant  notice  of  it,  and  to  per- 
mit him  to  make  any  equitable  or  legal  defence  to  which  he  may 
be  entitled,^  in  which  case  he  should  be  required  to  give  a  stipula- 
tion for  costs  ;  otherwise,  the  judgment  being  exclusively  in  rem, 
he  is  not  personally  responsible  for  them.  The  writ  takes  the 
place  of  a  declaration,  and  should  show  on  its  face  an  immediate 
cause  of  action.^  The  judgment  cuts  off  all  rights  and  interests 
under  the  mortgage  which  are  not  paramount  to  it,  although  the 
parties  holding  rights  subsequent  to  the  mortgage  are  not  made 
parties  to  the  action,  and  have  no  notice  of  it.^  The  sale  under 
tlie  judgment  does  not  affect  prior  rights  and  liens,  but  is  subject 
to  them.*'     The  judgment,  moreover,  extinguishes  the  debt.^ 

1356.  Rhode  Island. — There  is  jurisdiction  in  equity  of  the 
foreclosure  of  mortgages.  The  bill  should  be  brought  in  the  su- 
preme  court  for  the  county  in  which  the  premises  are  situated.  It 
is  heard  and  determined  according  to  the  principles  of  equityJ 

The  statutory  remedies  are  entry  and  possession,'^  and  actions 
at  law  of  ejectment,  or  of  trespass  and  ejectment,  for  obtaining 
possession.^  Redemption  may  be  made  within  three  years  after 
possession  is  acquired  in  either  way. 

1357 .  South  Carolina.^*^  —  Mortgages  are  foreclosed  by  ordi- 
nary suit  of  complaint  and  summons  in  the  nature  of  a  proceeding 
in  equity.  The  action  must  be  brought  in  the  county  where  the 
premises  or  some  part  thereof  are  situated.  If  any  party  inter- 
ested in  the  lien  or  in  the  property  is  unknown  to  the  plaintiff, 
and  his  residence  cannot  with  reasonable  diligence  be  ascertained 
by  him,  the  court  upon  affidavit  of  such  fact  may  grant  an  order 
that  the  summons  be  served  on  such  party  by  publishing  the  same 
for  six  weeks,  once  in  each  week  successively,  in  a  newspaper 
printed  in  the  county  where  the  premises  are  situated.  The  court 
has  power  to  adjudge  and  decree  the  payment  by  the  mortgagor  of 

1  McLaughlin  v.  Ihmsen,  85  Pa.  St.  364 ;  *  Dennison  v.  Allen,  4  Ohio,  495. 

Tryon  v.   Munson,  77   Pa.   St.  250;  Lan-  ^  Wertz's  Appeal,  65  Pa.  St.  306;  Hel- 

caster  v.  Smith,  67  Pa.   St.  427  ;    Roberts  frich  v.  Weaver,  61  Pa.  St.  385. 

V.  Halstead,  9  Pa.  St.  32,  49  Am.  Dec.  541  ;  6  Reedy  v.  Burgert,  1  Ohio,  157. 

Frear  v.  Drinker,  8  Pa.  St.  520.  '  P.  S.  1882,  ch.  176,  §  14. 

-  Mevey's  Appeal,  4  Pa.  St.  80 ;  Hinds  v.  »*See  §  1245. 

Allen,  34  Conn.  185.  9  See  §  1279. 

■^  Swift  V.  Allegheny  Building  Asso.  82  i^  Code  of  Civ.  Pro.  1882,  §§  144,  156, 

Pa.  St.  142.  188. 

VOL.  II.              19  289 


§  1358.]  STATUTORY    PROVISIONS   RELATING   TO 

any  residue  of  the  mortgage  debt  that  may  remain  unsatisfied  after 
a  sale  of  the  mortgaged  premises,  in  cases  in  wliich  he  is  personally 
liable  for  the  debt  secured  ;  and  if  the  debt  be  secured  by  the  cove- 
nant or  obligation  of  any  other  person,  the  plaintiff  ma}'  make  him 
a  party  to  the  action,  and  the  court  may  adjudge  payment  of  the 
residue  remaining  unsatisfied  after  a  sale  against  such  other  person, 
ajid  may  enforce  such  judgment  as  in  other  cases. 

There  is  no  i*edemption  after  sale. 

1358.  Tennessee.^  —  Foreclosure  is  b}'  bill  in  chancery  and  sale 
under  decree.  The  officer  whose  duty  it  is  to  make  the  sale  must, 
in  the  absence  of  any  special  provision  in  the  decree,  publish  the 
sale  at  least  thi-ee  different  times  in  some  newspaper  published  in 
the  county  where  it  is  to  be  made,  the  first  of  which  publications 
shall  be  at  least  twenty  days  previous  to  the  sale.  The  publication 
is  dispensed  with  when  the  owner  of  the  property  so  directs,  or  when 
no  newspaper  is  published  in  the  county,  in  which  cases  notice  is 
posted  for  thirty  days  in  at  least  five  of  the  most  public  places  in 
the  county,  one  of  which  must  be  the  court-house  door,  and  another 
the  most  public  place  in  the  civil  district  where  the  land  lies.  The 
advertisement  or  notice  must  give  the  names  of  the  plaintiff  and 
defendant,  or  parties  interested,  and  describe  the  land  in  brief  terms, 
and  mention  the  time  and  place  of  sale.  A  sale  without  such  notice 
is  not  on  that  account  void  or  voidable  ;  but  the  officer  failing  to 
comply  with  these  provisions  is  guilty  of  a  misdemeanor,  and  pun- 
ishable accordingly,  and  is  moreover  liable  to  the  party  injured  for 
damages.  At  any  time  before  ten  in  the  forenoon  on  the  day  of 
sale,  the  owner  of  the  property  may  deliver  to  the  officer  making 
the  sale  a  plan  or  division  of  the  lands,  subscribed  by  him  and  bear- 
ing date  subsequent  to  the  advertisement,  according  to  which  so 
much  of  the  land  as  may  be  necessary  to  satisfy  the  debt  and  costs, 
and  no  more,  shall  be  sold.  If  no  such  plan  is  furnished,  the  land 
may  be  sold  without  division.  The  sale  must  be  made  between  the 
hours  of  ten  in  the  forenoon  and  four  in  the  afternoon  of  the  day 
appointed.^ 

The  real  estate  sold  may  be  redeemed  at  any  time  within  two 
years,  unless  upon  application  of  the  complainant  the  court  order  it 
to  be  sold  on  a  credit  of  not  less  than  six  months,  nor  more  than  two 

1  Code  1884,  §§  2969-2979.  two  years;   that   there    shall    be  no  right 

2  Upon  any  foreclosure  of  a  mortgage  of  redemption,  but  the  purchaser's  title 
or  of  a  deed  of  trust,  the  court  may  order  .shnll  be  absolute ;  and  that  the  surplus  be 
that  the  property  be  sold  on  a  credit  of  paid  to  the  debtor.  Compiled  Stats.  1871, 
not  less   than  six  months  nor  more  than  §  4489. 

290 


FOKKCLOSURE  AND  REDEMPTION.  [§  1359. 

years,  and  that,  upon  confirmation  by  the  court,  no  right  of  redemp- 
tion shall  exist  in  the  debtor  or  his  creditor,  but  tiiat  the  title  of  the 
purchaser  shall  be  absolute.  This  right  of  redemption  does  not  ex- 
tend to  sales  made  under  a  deed  of  trust  or  mortgage  by  virtue  of  a 
power.i  Redemption  is  made  by  paying  the  purchaser  the  amount 
paid  by  him,  with  interest  at  the  rate  of  six  per  cent,  per  annum, 
together  with  all  other  lawful  charges.  If  the  purchaser  is  a  creditor 
by  judgment,  decree,  or  acknowledge'd  by  deed,  and  within  twenty 
days  after  the  sale  makes  an  advance  on  hia  bid  and  credits  his  debt, 
he  may  hold  the  property  subject  to  redemption  at  the  price  bid  and 
such  advance.  Any  creditor  may  redeem  in  the  same  manner  by 
advancing  at  least  ten  per  cent,  on  the  sum  bid,  or  crediting  that 
amount  on  the  debt  owing  to  him.^ 

1359.  Texas.  —  Foreclosure  is  by  suit  in  which  judgment  is  ren- 
dered and  a  sale  ordered.^  The  ordinary  proceeding  for  foreclosure 
is  by  petition  in  the  clerk's  office  of  the  district  court  of  the  county 
where  such  land  or  a  part  of  it  is  situated,  stating  the  case  and  the 
amount  of  the  demand,  and  describing  the  property  mortgaged. 
Whereupon  the  mortgagor  is  summoned  to  appear  at  the  next  term 
of  the  court,  to  show  cause  why  judgment  should  not  be  rendered 
for  the  sum  due  on  the  mortgage,  with  interest  and  costs.  Judg- 
ment is  rendered  and  execution  issued  as  in  other  cases.*  The  judg- 
ment against  other  persons  than  executors,  administrators,  or  guar- 
dians is  that  the  plaintiff  recover  his  debt,  damages,  and  costs,  and 
that  an  order  of  sale  issue  to  the  sheriff  or  any  constable  of  the 
county  directing  him  to  sell  as  under  execution,  and,  if  the  proceeds 
be  insufficient  to  pay  the  judgment  and  costs,  further  execution  may 
issue  for  the  balance.^ 

When  any  order  foreclosing  a  lien  is  made,  such  order  shall 
have  all  the  force  and  effect  of  a  writ  of  possession,  as  between 
the  parties  to  such  suit  of  foreclosure  and  any  person  claiming 
under  the  defendant  to  such  suit  by  any  right  acquired  pending 
such  suit,  and  the  court  shall  so  direct  in  the  judgment  providing 
for  the  issuance  of  such  order  ;  and  the  sheriff  or  other  officer  exe- 

1  See  Chadbouni  v.  Henderson,  68  Tenn.  *  r.  g.  i889,  art.  1198,  §  11.  See,  as  to 
460.  Before  this  provision  a  waiver  of  jurisdiction,  Cavanaugh  y.Petersou,  47  Tex. 
redemption    was    not   binding.     Cherry    v.     197. 

Bowen,  4  Sneed,  415.  ^  R.  S.  1889,  art.  1340. 

2  Code  1884,  §§  2947-2951.  See,  as  to  the  decree  of  sale,  Goss  v.  Pil- 
^  Power  of  sale  mortgages   are   in   use,    grim,  28  Tex.  263,  267  ;  Bishop  v.  Jones, 

but  the  plaintiff  may  also  foreclose  under    28  Tex.  294,  321.     As  to  form  of  decree, 
the  statute.     The  power  of  sale  is  only  a    see  Kinney  v.  McCleod,  9  Tex.  78,  80. 
cumulative  remedy.     Morrison  v.  Bean,  15 
Tex.  267,  269. 

291 


§  1360.]  STATUTORY   PROVISIONS   RELATING   TO 

cuting  sacli  order  of  sale  shall  proceed  by  virtue  of  said  order  to 
place  the  purchaser  of  the  property  sold  under  the  same  in  possession 
thereof  within  thirty  days  after  the  day  of  sale.^ 

The  court  may  by  injunction  restrain  the  party  in  possession  from 
doing  any  act  to  the  injury  of  the  property  during  the  foreclosure 
of  a  mortgage,  or  after  a  sale  before  a  conveyance.^ 

After  the  death  of  the  mortgagor  proceedings  to  enforce  the 
mortgage  debt  must  be  taken  in  the  probate  court. ^  Instead  of 
ordering  a  sale  the  court  may  order  payment  to  be  made  out  of  the 
general  assets  if  this  be  beneficial  to  the  estate.  Any  creditor  of  a 
deceased  person  holding  a  claim  secured  by  mortgage  or  other  lien, 
which  claim  had  been  allowed  and  approved  or  established  by  suit, 
may  obtain  at  a  regular  term  of  the  court,  from  the  county  court 
of  the  county  where  the  letters  testamentary  or  of  administration 
were  granted,  an  order  for  the  sale  of  the  property  upon  which  he 
has  such  mortgage  or  other  lien,  or  so  much  of  said  property  as  may 
be  required  to  satisfy  such  claim,  by  making  his  application  in 
writing  and  having  such  executor  or  administrator  cited  to  appear 
and  answer  the  same.  And  in  case  the  mortgage  or  other  lien 
shall  be  upon  real  property  the  same  notice  shall  be  given  of  said 
application  as  is  required  to  obtain  an  order  for  the  sale  of  such 
property.*  If  one  joint  mortgagor  or  owner  of  the  equity  be  dead, 
the  mortgagee  must  pursue  his  remedy  against  the  representatives 
of  the  deceased  in  the  probate  court,  so  far  as  his  interest  is  con- 
cerned, and  the  interest  of  the  other  mortgagor,  who  is  living,  must 
be  foreclosed  in  the  ordinary  way  in  the  district  court.^ 

Redemption  may  be  had  until  the  sale,  but  not  afterwards. 

1360.  Utah  Territory.^  —  Thei-e   is  but  one    action   for  the   re- 

^  Laws  1885,   ch.   8;    K.   S.   1889,    art.  is  required  to  obtain  an  order  for  the  sale 

1340  a.  of  such  property.     Cannon  v.  McDaniel,  46 

'^  Comp.  Laws  1888,  §  3474.  Tex.  303.     In  such  case  the  probate  court 

2  Any  creditor  of  a  deceased  person  hold-  must  order  the  sale,  even  if  the  mortgage 

ing  a  claim  secured  by  mortgage  or  other  contains  a  power.     This  is  revoked  by  the 

lien,  which  claim  has  been  allowed  and  ap-  mortgagee's  death.     Fortson  !'.  Caldwell,  17 

proved  or  established  by  suit,  may  obtain  Tex.  627;  Boggess  v.  Lilly,  18  Tex.  200; 

at  a  regular,  term   of  the  court,  from  the  Buchanan   i;.   Monroe,  22    Tex.  537,  542  ; 

county  court  of  the  county  where  the  let-  Webb  *.  Mallard,  27  Tex.  80,  83;  Giddings 

ters  testamentary  or  of  administration  were  v.  Crosby,  24  Tex.  295,  299.     See  §  1792. 

granted,  an  order  for  the  sale  of  the  prop-  *  Sayles's  Civ.  Stats.  1889,  §  2067. 

erty  upon  which  he  has  such  mortgage  or  ^  Martin  v.  Harrison,  2  Tex.  456,  458  ; 

other  lien,  or  so  much  of  said  property  as  Buchanan  v.  Monroe,  22  Tex.  537  ;  Wiley 

may  be  required  to  satisfy  such  claim,  by  v.  Pinson,  23  Tex,  486. 

making  his  application  in  writing,  and  hav-  ^  Compiled   Laws    1888,    §§   3460-3462. 

'ing  such  executor  or  administrator  cited  to  Under  §  3220,  Comp.  Laws  1888,  providing 

appear  and   answer   the  same.     The  same  that  several  causes  of  action  arising  out  of 

notice  shall  be  given  of  said  application  as  the  same  contract  may  be  united,  the  maker 

292 


FORECLOSURE  AND  REDEMPTION.  [§  1361. 

covery  of  any  debt,  or  the  enforcement  of  any  right  secured  by 
mortgage.  In  such  action  judgment  is  rendered  for  the  amount 
found  due  the  plaintiff,  and  a  decree  is  entei-ed  for  the  sale  of  the 
property  and  the  application  of  the  proceeds  to  the  payment  of  the 
expenses  of  sale,  the  costs  of  suit,  and  the  amount  due  the  plaintiff. 
A  judgment  is  entered  for  any  deficiency  there  may  be  against  the 
mortgagor  and  others  liable  for  the  debt.^  Any  surplus  proceeds  of 
sale  must  be  paid  to  the  person  entitled  to  it,  and  in  the  mean  time 
deposited  in  court.  When  the  debt  is  not  all  due,  the  sale  must 
cease  as  soon  as  sufficient  property  has  been  sold  to  satisfy  the 
amount  due  ;  and  as  often  as  more  becomes  due  for  principal  or 
interest,  the  court  may  on  motion  order  a  further  sale.  But  if  the 
property  cannot  be  sold  in  portions  without  injury  to  the  parties, 
the  whole  may  be  ordered  to  be  sold  in  the  first  instance,  and  the 
entire  debt  and  costs  paid,  with  a  proper  rebate  of  interest  when 
necessary. 

1361.  Vermont.^  —  Foreclosure  may  be  had  in  equity  under 
general  chancery  jurisdiction,  or  a  petition  in  equity  for  foreclosure 
may  be  made  with  the  same  effect  as  by  bill.^ 

Whenever  a  decree  shall  have  been  made  by  the  court  to  foreclose 
the  right  in  equity  of  redeeming  mortgaged  premises,  if  the  premises 
are  not  redeemed  agreeably  to  the  decree,  the  clerk  of  the  court  of 
chancery  may  issue  a  writ  of  possession  to  put  the  complainant  in 
possession  of  the  premises,  which  is  executed  in  the  same  manner, 
and  with  the  same  effect,  as  similar  writs  issued  by  a  court  of  law, 
after  judgment  in  an  action  of  ejectment. 

When  the  time  of  redemption  has  expired,  the  decree  in  chancery 
or  a  copy  of  it  must  be  recorded  in  the  town  clerk's  office  where  the 
land  is  situated,  within  thirty  days  after  the  expiration  of  the  time 
of  redemption.  The  foreclosure  is  not  effectual  against  subsequent 
purchasers,  mortgagees,  or  attaching  creditors,  unless  the  decree  is 

and  indorser  of  a  note  secured  by  mortgage  ^  Ross   v.    Shurtleff,   55    Vt.    177.     The 

may  be  joined  in  a  proceeding  to  foreclose  form  of  the  petition  and  decree  are  given 

the   mortgage,   and   it   is  not  necessary  to  R.  L.  1880,  §  760. 

state  a  separate  cause  of  action  against  each.  On  bill  or  petition  to  foreclose,  any  sub- 
Smith  V.  McEvoy,  8  Utah,  58,  29  Pac.  Rep.  sequent  attaching  creditor  may  be  made 
1030.  defendant. 

1  An  execution  cannot  issue  for  any  de-  A  petition  for  foreclosure  does  not  re- 
ficiency  until  a  judgment  is  entered  there-  quire  the  fulness  and  particularity  required 
for  after  the  return  of  the  officer.  Russell  by  a  bill.  A  general  and  comprehensive 
V.  Hank  (Utah),  34  Pac.  Rep.  245.  statement  of  ultimate  facts  constituting  the 

2  R.  L.  1880,  §§  760-762,  767-779.  This  ground  of  right  and  liability  is  sufficient, 
is  a  strict  foreclosure.  Sprague  v.  Rockwell,  51  Vt.  401. 

293 


§  1362.]  STATUTORY    PROVISIONS   RELATING    TO 

SO  recorded,  or  afterwards  left  for  record,  before  they  acquire  any 
rights. 

Foreclosure  may  also  be  made  by  action  of  ejectment,}  in  which 
the  court  ascertains  the  sum  equitably  due  to  the  plaintiff  on  the 
mortffage  or  deed  with  defeasance,  and  orders  that  if  the  defendant 
or  his  representatives  shall  pay  or  cause  to  be  paid  the  amount  then 
due  the  plaintiff,  with  legal  interest,  to  the  clerk  of  the  court,  by  a 
time  limited  by  the  court,  not  exceeding  one  year  from  the  rendition 
of  the  judgment,  then  such  judgment  shall  be  vacated.  If  the  debt 
is  payable  by  instalments,  a  part  of  which  is  not  due  at  the  time  the 
judgment  is  rendered,  the  court  may  order  and  decree  a  redemption 
at  any  future  period,  by  instalments  or  otherwise,  as  to  the  court 
appeal's  just  and  equitable,  not  more  than  one  year  after  the  last 
instalment  becomes  due.^  If  the  defendant  pays  within  the  time 
limited  by  the  court  the  sums  so  ordered  to  be  paid,  the  clerk  de- 
livers to  him  a  certificate  of  payment,  which,  when  recorded  in  the 
proper  registry  of  deeds,  defeats  the  mortgage.''^  If  the  defendant 
does  not  pay  as  ordered  by  the  time  limited,  the  plaintiff  has  his 
writ  of  possession  for  the  premises  recovered,  and  for  his  damages 
and  costs,  and  holds  the  premises  discharged  from  all  right  and 
equity  of  redemption. 

1362.  Virginia.  — Foreclosure  is  under  the  general  jurisdiction 
of  courts  of  equity.  Mortgages,  however,  are  now  seldom  or  never 
used  in  this  State,  deeds  of  trust  being  substituted  in  their  place.* 
There  are  no  provisions  of  statute  relating  specifically  to  the  fore- 
closure  of    mortgages.      There   are   special    provisions    relating  to 

1  R.  L.  1880,  §§  1253-1258.  This  mode  mortgage  must  be  apportioned  upon  the 
of  foreclosure  is  applicable  only  where  the  land  according  to  their  value,  and  the  owner 
conveyance  is  technically  a  mortgage  by  of  each  given  a  time  to  redeem  his  portion, 
deed,  to  be  void  upon  condition,  or  having  and  upon  failure  to  do  so  he  is  foreclosed, 
a  defeasance  under  seal.  Miller  y.  Ha mblet,  If  neither  of  such  owners  redeem,  that  is 
11  Vt.  499.  The  action  may  be  maintained  the  end  of  it.  If  one  redeems  his  portion, 
although  the  statute  of  limitations  has  run  and  the  others  do  not,  then  the  one  redeem- 
against  the  debt.  Reed  v.  Shepley,  6  Vt.  ing  must  also  redeem  the  portions  of  the 
602.  The  note  secured  by  the  mortgage  others,  or  forfeit  the  whole  estate,  and  if  he 
must  be  produced ;  and  a  variance  between  does  so  redeem  he  takes  the  whole  estate, 
the  note  produced  and  that  described  in  the  Gates  v.  Adams,  24  Vt.  70. 

mortgage  cannot  be  explained  by  parol  as        ^  -p^g  result  of  a  failure  to  so  record  the 

a  mistake.     Edgell  v.  Stanford,  3  Vt.  202.  decree  is  that  the  mortgagor,  when  allowed 

But  it  need  not  be  produced  when  the  mort-  to  occupy  the  premises,  must  be  regarded, 

gagor  has  released  the  equity  in  satisfaction  as  to  his  creditors,  as  a  mortgagor  in  pos- 

of  the  note.     Marshall  v.  Wood,  5  Vt.  250.  session,  and  they  may  levy  on  the  crops  as 

2  It  is  held  that  if  the  mortgage  embraces  his.  Wolcott  v.  Hamilton,  61  Vt.  79,  17 
several  parcels    which   have    subsequently  At).  Rep.  39. 

been  transferred    to  different   persons,  the        *  Pitzer  v.  Burns,  7  W.  Va.  63,  74. 

294 


FORECLOSURE   AND   REDEMPTION.  [§  1363. 

deeds  of  trast,^  and  courts  of  equity  may  be  invoked  in  any  case 
to  supervise  the  execution  of  them.^  There  are  general  provisions 
relating  to  judicial  sales  which  would  be  applicable  to  a  foreclosure 
sale  under  decree  of  court,  and  to  sales  under  trust  deeds  when 
made  under  direction  of  court.  These  authorize  the  court  to  direct 
the  sale  to  be  made  for  cash,  or  on  such  credit  and  terms  as  it  may 
deem  best ;  and  it  may  appoint  a  commissioner  to  make  the  sale, 
who  must  give  bonds  befoi-e  receiving  any  money  under  the  decree. 
When  no  special  commissioner  is  appointed,  the  sheriff  or  sergeant 
may  act.^ 

1363.  Washington.^  —  When  default  is  made  in  the  perform- 
ance of  any  condition  contained  in  a  mortgage,  the  mortgagee  or 
his  assigns  may  proceed,  in  the  district  court  of  the  district  or 
county  where  the  land  or  some  part  thereof  lies,  to  foreclose  the 
equity  of  redemption.  Wlien  there  is  no  express  agreement  in  the 
mortgage,  nor  any  separate  instrument  given  for  the  payment  of 
the  sum  secured  thereby,  the  remedy  is  confined  to  the  property 
mortgaged.  In  rendering  judgment  of  foreclosure  the  court  orders 
the  mortgaged  premises,  or  so  much  tliereof  as  may  be  necessary, 
to  be  sold  to  satisfy  the  mortgage  and  cost  of  the  action.  The  pay- 
ment of  the  mortgage  debt,  with  interest  and  costs,  at  any  time  be- 
fore sale,  satisfies  the  judgment.  When  there  is  an  express  agree- 
ment for  the  payment  of  the  sum  of  money  secured  contained  in 
the  mortgage  or  any  separate  instrument,  the  court  directs  in  the 
order  of  sale  that  the  balance  due  on  the  mortgage,  with  costs  re- 
maining unsatisfied  after  the  sale,  shall  be  levied  on  any  property 
of  the  mortgage  debtor. 

The  decree  may  be  enforced  by  execution,  as  an  ordinary  decree 
for  the  payment  of  money.  The  sheriff  thereupon  proceeds  to  sell 
the  mortgaged  premises,  or  so  much  thereof  as  may  be  necessar}'^  to 
satisfy  the  judgment,  interest,  and  costs,  as  upon  execution  ;  and  if 
any  part  of  the  judgment,  interest,  and  costs  remain  unsatisfied, 
the  sheriff  forthwith  proceeds  to  levy  the  residue  upon  the  property 
of  the  defendant. 

A  notice  of  the  sale  must  be  posted  particularly  describing  the 

1  See  chapter  xxxix.  paid   in   cash.     The    commissioner   cannot 

2  Michie  v.  Jeffries,  21  Gratt.  334.  sell  for  less  than  three  fourths  of  the   as- 

3  All  sales  for  the  payment  of  debts  con-  sessed  value.  Code  1873,  p.  1123.  Thecom- 
tracted  or  liabilities  incurred  prior  to  April  missioner  or  officer  is  allowed  for  services 
10,  1865,  must  be  upon  a  credit  of  not  less  5%  on  the  first  $300,  and  2%  on  all  above 
than  three  nor  more  than  six  equal  instal-  that. 

ments  annually  from  the  day  of  sale,  except        *  G.  S.  1891,  Code  of  Proced.  §§  625-635. 
that  the  costs  of  the  suit  and  sale  must  be 

295 


§  1363.]  STATUTORY   PROVISIONS   RELATING   TO 

property,  for  four  weeks  suecessively,  in  three  public  places  of  the 
county  where  the  property  is  to  be  sold,  and  must  be  published  once 
a  week  for  the  same  period  in  a  newspaper  of  the  county,  if  there 
be  one,  or,  if  there  be  none,  then  in  a  newspaper  published  nearest 
to  the  place  of  sale.^  The  plaintiff  cannot  proceed  to  foreclose  his 
mortgage  while  he  is  prosecuting  any  other  action  for  the  same  debt 
or  matter  which  is  secured  by  the  mortgage,  or  while  he  is  seeking 
to  obtain  execution  of  any  judgment  in  such  other  action  ;  nor  can 
he  prosecute  any  other  action  for  the  same  matter  while  he  is  fore- 
closing his  mortgage  or  prosecuting  a  judgment  of  foreclosure. 

Whenever  a  complaint  is  filed  for  the  foreclosure  of  a  mortgage 
upon  which  there  shall  be  due  any  interest  or  instalment  of  the 
principal,  and  there  are  other  instalments  not  due,  if  the  defend- 
ant pay  into  court  the  principal  and  interest  due,  with  costs,  at 
any  time  before  the  final  judgment,  proceedings  thereon  shall  be 
stayed,  subject  to  be  enforced  upon  a  subsequent  default  in  the 
payment  of  any  instalment  of  the  principal  or  interest  thereafter 
becoming  due.  In  the  final  judgment,  the  court  directs  at  what 
time  and  upon  what  default  any  subsequent  execution  shall  issue. 
In  such  cases,  after  final  judgment,  the  court  ascertains  whether 
the  property  can  be  sold  in  parcels  ;  and  if  it  can  be  done  without 
injury  to  the  interests  of  the  parties,  the  court  directs  so  much  only 
of  the  premises  to  be  sold  as  may  be  sufficient  to  pay  the  amount 
then  due  on  the  mortgage,  with  costs,  and  the  judgment  remains 
and  may  be  enforced  upon  any  subsequent  default,  unless  the 
amount  due  shall  be  paid  before  execution  of  the  judgment  is 
perfected. 

If  the  mortgaged  premises  cannot  be  sold  in  parcels,  the  court 
orders  the  whole  to  be  sold,  and  the  proceeds  of  the  sale  applied 
first  to  the  payment  of  the  principal  due,  interest,  and  costs,  and 
then  to  the  residue  secured  by  the  mortgage  and  not  due  ;  and 
if  the  residue  do  not  bear  interest,  a  deduction  is  made  therefrom 
by  discounting  the  legal  interest ;  and  in  all  cases  when  the  pro- 
ceeds of  the  sale  are  more  than  sufficient  to  pay  the  amount  due 
and  costs,  the  surplus  is  paid  to  the  mortgage  debtor,  his  heirs  and 
assigns. 

The  debtor  or  his    successor   in    interest    may  redeem  any  real 

estate  sold  under  foreclosure  at  any  time  within  one  year  from  the 

date   of  the  sale,  by  paying  the  amount  of  purchase-money  with 

interest    at  the   rate  of  one  per  centum  per  month  thereon    from 

1  2  G.  S.  1891,  Code  Proced.  §  500. 

296 


FORECLOSURE   AND  REDEMPTION.         [§§  1364,  1365. 

the  date  of  sale,  together  with  the  amount  of  any  taxes  which  the 
purcliaser  may  have  paid.^ 

1364.  West  Virginia.  —  The  foreclosure  of  mortgages  in  this 
State,  tlie  same  as  in  Virginia,  is  by  bill  in  chancery,  and,  as  is  the 
case  in  that  State,  deeds  of  trust  have  been  generally  substituted 
for  mortgages.^  There  are  no  statutory  provisions  in  regard  to  en- 
forcing the  latter  ;  though  there  are  such  in  regard  to  sales  under 
deeds  of  trust,^  which  may  be  made  in  accordance  with  the  provi- 
sions of  the  deed  and  the  statute  without  the  intervention  of  the 
court,  or  may  be  supervised  by  it  in  equity.  All  judicial  sales  may 
be  for  cash,  or  on  such  credit  and  terms  as  the  court  may  deem 
best;  and  it  may  appoint  a  special  commissioner  to  make  such  sale. 
If  no  commissioner  is  appointed  for  the  purpose,  the  sheriff  or  ser- 
geant executes  the  decree.^ 

1365.  Wisconsin.^ — In  actions  for  the  foreclosure  of  mort- 
gages upon  real  estate,  if  the  plaintiff  recover,  the  court  shall 
render  judgment  of  foreclosure  and  sale  of  the  mortgaged  prem- 
ises. The  proceeds  of  every  sale  made  under  such  judgment  are 
applied  to  the  discharge  of  the  debt  adjudged  to  be  due,  and  the 
costs  awarded ;  and  if  there  be  any  surplus,  it  is  brought  into 
court  for  the  use  of  the  defendant,  or  of  an}'  person  who  may  be 
entitled  thereto,  subject  to  the  order  of  the  court.  If  such  sur- 
plus, or  any  part  thereof,  remain  in  court  for  the  term  of  three 
months  without  being  applied  for,  the  court  directs  the  same  to 
be  put  out  at  interest  for  the  benefit  of  the  defendant,  his  rep- 
resentatives or  assigns,  to  be  paid  to  them  by  the  order  of  such 
court. 

In  all  such  actions,  the  plaintiff  may,  in  his  complaint,  unite 
with  his  claim  for  a  foreclosure  and  sale  a  demand  for  judgment 
for  any  deficiency  which  may  remain  due  to  the  plaintiff,  after 
sale  of  the  mortgaged  premises,  against  every  party  who  may  be 
personally  liable  for  the  debt  secured  by  the  mortgage,  whether 
the  mortgagor  or  other  persons,  if  upon  the  same  contract  which 
the  mortgage  is  given  to  secure  ;  and  judgment  of  foreclosure  and 
sale,  and  also  for  any  such  deficiency  remaining  after  applying  the 

1  G.  S.  1891,  Code  Proced.  §  512.  If  the  Only  one  case  relating  to  mortgages  is 
mortgagor  does  not  redeem  within  the  time  found  in  the  reports  of  this  State,  and  the 
allowed,  lie  cannot  afterwards  recover  them  mortgage  in  that  instance  was  made  in 
from  the  purchaser,  or  his  grantee,  on  the  New  York. 

ground  that  no  valid  deed  was  ever  made  ^  See  chapter  xxxix. 

by  the  sheriff.     Stevens  v.  Ferry,  48  Fed.  *  Code  1891,  ch.  132. 

Rep.  7.  5  2  Aunot.  Stats.  1889,  ch.  135,  §§  3154- 

2  Pitzer    V.    Burns,   7  W.    Va.    63,   74.  3169. 

297 


§  1365.]  STATUTORY    PROVISIONS   RELATING    TO 

proceeds  of  sale  to  the  amount  adjudged  to  be  due  for  principal, 
interest,  and  costs,  may  in  such  case  be  rendered.  Such  judgment 
for  deficiency  is  ordered  in  the  original  judgment,  and  separately 
rendered  against  the  party  liable,  on  or  after  the  coming  in  and 
confirmation  of  the  report  of  sale,  and  is  docketed  and  enforced  as 
in  other  cases. ^ 

Whenever  there  is  due  any  interest,  or  any  instalment  of  the 
principal,  and  there  be  other  portions  or  instalments  to  become 
due  subsequently^  the  action  is  dismissed  upon  the  defendant's 
bringing  into  court,  at  any  time  before  judgment,  the  principal 
and  interest  due,  with  the  costs.  If  after  judgment  is  entered  the 
defendant  brings  into  court  the  principal  and  interest  due,  with  the 
costs,  proceedings  on  the  judgment  are  stayed  ;  but  the  court  may 
enforce  the  judgment  by  a  further  order  upon  a  subsequent  de- 
fault in  the  payment  of  any  instalment  of  the  principal  or  of  inter- 
est. The  court,  before  rendering  judgment,  directs  a  reference  to 
some  proper  person,  to  ascertain  and  report  the  situation  of  the 
mortgaged  premises,  and  whether  they  can  be  sold  in  pai'cels  with- 
out injury  to  the  interests  of  the  parties  ;  and  if  it  appear  that 
they  can  be  so  sold,  the  judgment  directs  a  sale  in  parcels,  specify- 
ing them,  or  so  much  thereof  as  will  be  sufficient  to  pay  the  amount 
then  due  ;  and  such  judgment  remains  as  security  for  any  subse- 
quent default.  If  there  be  any  default  subsequent  to  such  judg- 
ment, the  court  may,  upon  petition  of  the  complainant,  by  a  fur- 
ther order,  founded  upon  such  first  judgment,  direct  a  sale  of  so 
much  of  the  mortgaged  premises  to  be  made  under  the  said  judg- 
ment as  will  be  sufficient  to  satisfy  the  amount  so  due,  with  the 
costs  of  such  petition  and  the  subsequent  proceedings  thereon  ;  and 
the  same  proceedings  are  had  as  often  as  a  default  happens.^  If  it 
appear  to  the  court  that  the  mortgaged  premises  are  so  sitiuited 
that  they  cannot  be  sold  in  parcels  without  injury  to  the  interests 
of  the  parties,  or  that  the  sale  of  the  whole  will  be  most  beneficial 
to  them,  the  court  may  adjudge  the  sale  of  the  whole  accordingly, 
in  which  case  the  proceeds  of  sale,  after  deducting  the  costs  of  the 
action  and  of  sale,  are  applied  to  the  payment  of  the  sums  then 
due  and  also  to  become  due  thereafter;  deducting  from  all  sums 
not  due,  wiiich  do  not  bear  interest,  interest  from  the  time  of  pay- 
ment to  the  time  when  the  same  are  payable  ;  or  the  court  may 
direct  the  balance  of  the  proceeds  of    sale,  after  paying   the  sum 

^  The  judgment  for  a  deficiency  cannot  ure.  Welp  v.  Guuther,  48  Wis.  543,  4  N. 
be  rendered  with  the  judgment  of  foreclos-    W.  Rep.  647. 

-'  Siipp.  to  R.  S.  1883,  §  3159,  p.  682. 
298 


FORECLOSURE   AND  REDEMPTION.  [§  1365. 

then  due,  witb  such  costs,  to  be  placed  at  interest  for  the  benefit 
of  the  plaintiff,  to  be  paid  to  him  as  sucb  subsequent  instalments 
become  due,  with  the  interest  thereon. 

The  judgment  fixes  the  amount  of  the  mortgage  debt  then  due, 
and  also  the  amount  of  each  instalment  thereafter  to  grow  due, 
and  the  several  times  when  they  will  become  so  due,  and  adjudges 
that  the  mortgaged  preuiises  be  sold  for  the  payment  of  the  amount 
adjudged  to  be  then  due,  and  of  all  instalments  wliich  shall  there- 
after grow  due  before  the  sale,  or  so  much  thereof  as  may  be  suffi- 
cient to  pay  such  amount,  including  costs  of  sale  ;  but  no  such  sale 
shall  be  made  until  the  expiration  of  one  year  from  the  date  of 
such  judgment  or  order  of  sale  ;^  and  when  judgment  is  for  instal- 
ments due  and  to  grow  due,  and  payment  shall  be  made  within  the 
year  of  the  instalments  found  due  at  the  date  of  the  judgment, 
with  interest  and  costs,  no  sale  shall  be  made  upon  any  instalment 
growing  due  after  the  date  of  the  judgment,  until  the  expiration 
of  one  year  after  the  same  shall  become  due;^  but  in  all  cases  the 
parties  may,  by  stipulation  in  writing,  to  be  filed  with  the  clerk, 
consent  to  an  earlier  sale.  These  provisions  do  not  apply  to  judg- 
ments of  foreclosure  and  sale  of  mortgages  given  by  any  railroad 
corporation;  but  such  sales  may  be  made  immediately  after  the 
rendition  of  the  judgment.^ 

The  sheriff  or  referee  who  makes  sale  of  mortgaged  premises 
under  a  judgment  therefor  shall  give  notice  of  the  time  and  place 
of  sale,  in  the  manner  provided  by  law  for  the  sale  of  real  estate 
upon  execution,  or  in  such  other  manner  as  the  court  shall  in  the 
judgment  direct.^     He  shall,  within  ten  days  thereafter,  file  with 

1  Laws  Wis.  1877,  ch.  143,  which  post-  premises  is  a  homestead,  see  2  Annot.  Stats, 
pones  foreclosure  sales  for  a  year  after  1889,  ch.  135,  §  3163.  For  provision  as  to 
judgment,  and  provides  for  the  repeal  of  interest  on  judgment  and  instalments,  see 
Laws  1859,  ch.  195,  but  docs  not  give  the  2  Annbt.  Stats.  1889,  ch.  135,  §  3164.  As 
year's  right  of  redemption  allowed  by  that  to  redemption  of  the  whole  or  part  before 
law  after  sale,  does  not  impair  the  obliga-  sale,  see  2  Annot.  Stats,  ch.  135,  §§3135- 
tion  of  contracts  when  applied  to  mort-  3137.  The  mortgagor  has  the  paramount 
gages  given  before  its  enactment,  since  the  and  absolute  right  to  redeem  ;  and  upon 
time  for  redemption  is  the  same  in  either  his  doing  so  a  deposit  previously  made  by 
case,  and  the  remedy  not  materially  changed,  the  holder  of  a  subsequent  lien,  for  the  pur- 
Northwestern  Mut.  L.  Ins.  Co.  V.  Neeves,  pose  of  redeeming,  becomes  of  no  effect. 
46  Wis.  147,  49  N.  W.  Rep.  832.  Wylie  v.   Welch,    51    Wis.   351,   8  N.   W. 

■^  The  judgment  referred  to  is  the  formal  Rep.  207. 
entry  by  the  clerk  of  the  court,  completed        *  The  notice  of  sale  must  be  published 

.so  as  to  show  the  total  amount  which  must  for  six  full  weeks  after  the  expiration  of 

be  paid  in  order   to  redeem,  including  the  one  year   from  the  date  of  the  judgment, 

costs  taxed.     Andrews  v.   Welch,  47  Wis.  Kopmeier  v.  O'Neil,  47  Wis.  593,  3  N.  W. 

132,  2  N.  W.  Rep.  98.  Rep.  365  ;  Northwestern  Mut.  Life  Ins.  Co. 

•^  For  provision  in  case  any  part  of  the  v.  Neeves,  46  Wis.  147. 

299 


§  1366.]  STATUTORY    PROVISIONS. 

the  clerk  of  the  court  a  report  of  the  sale,  and  immediately  after  the 
sale  shall  pay  to  the  parties  entitled  thereto,  or  their  attorneys, 
the  proceeds  of  the  sale,  after  deducting  the  costs  thereof,  unless 
otherwise  ordered  by  court. 

Upon  any  such  sale  being  made,  the  sheriff  or  referee  making 
the  same,  on  compliance  with  its  terms,  shall  make,  execute,  and 
deliver  to  the  purchaser  a  deed  of  the  premises  sold,  setting  forth 
each  parcel  of  l^nd  sold  to  him,  and  the  sum  paid  therefor,  which 
deed,  upon  the  confirmation  of  such  sale,  vests  in  the  purchaser  all 
the  right,  title,  and  interest  of  the  mortgagor,  his  heirs,  personal 
representatives,  and  assigns,  in  and  to  the  premises  sold,  and  is 
a  bar  to  all  claim,  right,  or  equity  of  redemption  therein,  of  and 
against  the  parties  to  such  action,  their  heirs  and  personal  represen- 
tatives, and  also  against  all  persons  claiming  under  them  subsequent 
to  the  filing  of  the  notice  of  the  pendency  of  the  action  in  which 
such  judgment  was  rendered  ;  and  the  purchaser  is  let  into  the  pos- 
session of  the  premises  so  sold,  on  production  of  such  deed,  or  a  duly 
certified  copy,  and  the  court  may,  if  necessary,  issue  a  writ  of  as- 
sistance to  deliver  such  possession. ^ 

There  is  no  redemption  after  foreclosure  by  action,  though  there 
is  a  right  of  redemption  for  one  year  after  a  foreclosure  by  adver- 
tisement.^ 

1366.  Wyoming.^  —  In  an  action  to  foreclose  a  mortgage  given 
to  secure  the  payment  of  money,  or  to  enforce  a  specific  lien  for 
money,  the  plaintiff  may  also  ask  in  his  petition  a  judgment  for  the 
money  claimed  to  be  due.  A  sale  of  the  premises  shall  be  ordered  ; 
and  when  the  premises  to  be  sold  are  in  one  or  more  tracts,  the 
court  may  direct  the  officer  who  makes  the  sale  to  subdivide,  ap- 
praise, and  sell  the  same  in  parcels,  or  to  sell  any  one  of  the  tracts 
as  a  whole.  When  the  mortgaged  property  is  situate  in  more  than 
one  county,  the  court  may  order  the  sheriff  or  master  of  each  to 
make  sale  of  the  property  in  his  county,  or  may  direct  one  officer 
to  sell  the  whole.  The  court  may  direct  that  the  property,  when  it 
consists  of  a  single  tract,  be  sold  as  one  tract,  or  in  separate  parcels, 
and  shall  direct  whether  appraisers  shall  be  selected  for  each  county, 
or  one  set  for  all ;  and  shall  also  direct  whether  publication  of  the 
sale  shall  be  made  in  all  the  counties  or  in  one  county  only. 

1  This  provision  defines  the  rights  of  the  2  Annot.  Stats.  1889,  §  3187.    See  McBride 

purchaser  after  confirmation  of  sale.    Welp  v.   Wright,  75   Wis.   306,  43   N.  W.   Kep. 

V.  Gunther,  8  Wis.  543;  Woehier  r.  Endter,  955. 

46  Wis.  301.  -  R.  S.  1889,  §  3533. 

As   to  filing   notice  of  lis  pendens,   see  3  r.  g.  1887,  §§  2410,  2663,  2664. 
300 


CHAPTER   XXXI. 

THE  PARTIES  TO  AN  EQUITABLE  SUIT  FOE  FORECLOSURE. 


Of  Parties  P/mntiff,  1368-1393. 


Of  Parties  Defendant,  1394-1442. 


1367.  General  principles.  —  In  determining  who  are  tlie  proper 
and  necessary  parties  to  a  bill  to  foreclose  a  mortgage,  two  funda- 
mental principles  in  all  proceedings  in  equity  must  be  kept  in  view : 
first,  that  no  one  shall  be  adjudged  as  to  his  rights  except  he  is 
before  the  court ;  and  second,  that  the  rights  of  all  persons  interested 
in  the  object  of  the  suit  shall  be  provided  for  in  the  determination  of 
it.  It  is  the  constant  aim  of  a  court  of  equity  to  do  complete  justice, 
by  deciding  upon  and  settling  the  rights  of  all  persons  interested 
in  the  subject  of  the  suit,  to  make  the  performance  of  the  order  of 
the  court  perfectly  safe  to  those  who  are  compelled  to  obey  it,  and 
to  prevent  further  litigation. ^  It  is  a  maxim,  as  stated  by  Lord 
Talbot,  that  "  a  court  of  equity  in  all  cases  delights  to  do  complete 
justice,  and  not  by  halves."  ^  Therefore  it  is  generally  essential 
that  all  persons  materially  interested  in  the  subject-matter  of  the 
suit  shall  be  made  parties  to  it,  either  as  plaintiffs  or  defendants.^ 
This  is,  however,  a  general  statement,  and  as  a  practical  rule  is  sub- 
ject to  many  limitations.  Those  who  are  indirectly  or  consequently 
interested  in  the  mortgage  debt  or  in  the  mortgaged  premises  are 
not  necessarily  included  among  the  proper  parties  to  the  suit.  The 
interest  in  the  object  of  the  suit  must  be  apparent  upon  the  record. 
When  it  is  said  that  a  person  materially  interested  should  be  made 
a  party  to  the  suit,  the  materiality  of  the  interest  is  relative  to  the 
case,  and  to  the  prayer  of  the  bill.  For  instance,  a  mortgagee  may 
pray  for  a  foreclosure  against  the  mortgagor  and  not  against  a  sub- 
sequent incumbrancer,  in  which  case  such  incumbrancer  is  not 
materially  interested  in  the  object  of  the  suit.  Then,  as  we  shall 
presently  notice  more  fully,  the  interests   which   persons  have   in 

1  Lord  Redesdale's  Pleadings,  164.  Grant,  in  Wilkins  v.  Fry,  1  Mcr.  244,  262, 

2  Knight  j;.  Knight,  3  P.  W.  331,333.  per   Lord   Redesdaie,    PI.    164;    per   Lord 
"  Per    Lord     Eldon,     in     Cockburn     v.    Langilale,    in    Richardson    v.    Hastings,    7 

Thompson,  16  Ves.  321,  325;    per  Sir  Wm.    Beav.  323,  326. 

301 


§  1367.]       PARTIES   TO   AN   EQUITABLE   SUIT    FOR    FORECLOSURE. 

the  debt  and  in  tlie  equity  of  redemption  may  be  represented  by 
others,  as  by  executors  and  administrators,  and  by  trustees.  More- 
over, the  suit  may  be  brought  or  defended  by  persons  interested 
on  behalf  of  themselves  and  of  others,  as  where  the  number  is  too 
large  to  make  it  practicable  to  bring  all  of  them  before  the  court. 
In  several  other  ways  the  general  rule  founded  upon  interest  is 
modified  in  the  practical  application  of  it ;  and  these  exceptions 
will  appear  under  the  particular  applications  of  the  rule  to  the 
parties  interested  in  the  mortgage  debt  and  property  to  be  made  in 
this  chapter. 

Of  course,  when  neither  party  to  a  mortgage  has  assigned  his 
interest,  or  done  anything  to  affect  it  in  an}'^  way  down  to  the  time 
of  the  bringing  of  the  suit  to  foreclose  it,  the  mortgagor  and  mort- 
gagee remain  the  only  parties  to  be  brought  before  the  court.  But 
this  simple  state  of  facts  may  be  changed  to  one  of  great  complica- 
tion by  events  subsequent  to  the  mortgage ;  and  the  changes  which 
thus  take  place  give  rise  to  a  great  many  questions  as  to  the  proper 
and  necessary  parties  to  a  suit  for  foreclosure. 

These  general  principles  of  equity  respecting  the  parties  to  suits 
have  been  embodied  in  the  codes  adopted  in  several  of  the  States, 
and  extended  to  all  actions,  whether  such  as  were  formerly  suits  in 
equity  or  distinctively  suits  at  law.  These  codes  provide  that  all 
persons  having  an  interest  in  the  subject  of  the  action,  or  in  obtain- 
ing the  relief  demanded,  may  be  joined  as  plaintiffs.^  "  Of  the 
parties  to  the  action,  those  who  are  united  in  interest  must  be  joined 
as  plaintiffs  or  defendants  ;  but  if  the  consent  of  any  one  who 
should  have  been  joined  as  plaintiff  cannot  be  obtained,  he  may  be 
made  a  defendant,  the  reason  thereof  being  stated  in  the  complaint. 
When  the  question  is  one  of  a  common  or  general  interest  of  many 
persons,  or  when  the  parties  are  very  numerous,  and  it  may  be  im- 
practicable to  bring  them  all  before  the  court,  one  or  more  may  sue 
or  defend  for  the  benefit  of  the  whole."  ^ 

1  Pomcroy's  Remedies,  §  116.  Kansas:  G.  S.  1889,  §§  4114,4115;  Code 

For  a  statement  of  the  provisions  in  sev-  of  Civ.  Pro.  §§  .37,  38. 
eral   States   abolishinj^   all    distinction    be-        Nebraska:    Conip.    Stats.    1885,    p.   633, 

tween  suits  at  law  and  in  equity,  see  chap-  §§  42,  43. 

ter  XXX. ;  and  also  see  Pomeroy's  Remedies,        Missouri:  R.    S.    1889,    §  1994,  without 

§§  28-30,  44.  last  clause. 

•^  New    York:     Code     of     Civ.    Proced.        Nevada:  G.  S.  1885,  §  3036. 
§  448.  Oregon:  1  Annot.  Laws  1887,  §  385,  but 

Ohio:  R.  S.  1880,  §§  5007,  5008.  limited  to  equitable  actions. 

Indiana:  R.  S.  1888,  §  269.  California:  Codes  and  Stats.  1885,  Code 

Iowa :  R.  Code  1880,  §§  2548,  2549.  of  Civ.  Pro.  §  382. 

Wisconsin:  Annot.  Stats.  1889,  §  2604.  Kentucky:  Civil  Code  1889,  §§  24,  25. 

302 


WHO   ARE   PROPER   PARTIES.  [§  1368. 

In  the  same  States  it  is  provided  that  an  executor,  administrator, 
trustee  of  an  express  trust,  a  person  with  whom  or  in  whose  name 
a  contract  is  made  for  the  benefit  of  another,  or  a  person  expressly 
authorized  by  statute,  may  bring  an  action  without  joining  with 
him  the  person  for  whose  benefit  it  is  prosecuted.^  It  is  further 
provided  thtit  when  a  complete  determination  of  the  controversy 
between  the  parties  before  the  court  cannot  be  had  without  the 
presence  of  other  parties,  the  court  must  cause  them  to  be  brought 
in.  A  person  having  an  interest  in  the  subject  of  the  suit,  and  not 
a  party  to  it,  may  be  made  a  party  on  his  own  application.^  These 
codes  also  contain  a  few  other  provisions  relative  to  parties,  gen- 
erally recognizing  equitable  rules  already  established,  but  which  it 
is  not  essential  to  notice  in  this  connection. 


PART  I. 

OF    PARTIES    PLAINTIFF. 

Who  are  the  Proper  Parties. 

1368.  All  those  who  are  interested  in  the  mortgage  debt 
should,  according  to  the  geneml  principle  already  stated,  join  in 
the  suit  to  enforce  the  security.  If  the  mortgagee  is  the  only  party 
in  interest,  he  is  of  course  the  only  plaintiff.  If  several  persons 
and  even  numerous  persons  are  made  mortgagees,  or  are  entitled  to 
the  mortgage  money,  all  of  them  must  be  parties  to  the  suit,^  though 
there  are  many  cases  in  which  some  of  the  persons  so  interested 
may  properly  be  made  defendants.  The  codes  of  several  States,  as 
already  noticed,  embody  this  equitable  principle,  extending  it  to  all 
actions,  including  such  as  were  foimerly  distinctively  actions  at  law. 
Not  only  joint  mortgagees,  but  also  persons  having  an  united  interest 
in  the  debt  secured,  even  if  their  interests  be  several,  may  join  as 
plaintiffs.^ 

North  Carolina  :  Code  1883,  §  185.  501 ;  Mangels  v.  Brewing  Co.  53  Fed.  Rep. 

South  Carolina:  G.  S.  Code  of  Civ.  Pro.  513. 

§  I-IO-  *  Story's  Eq.  PI.  §  201  ;  Pomeroy's  Kem- 

1  Pomeroy's  Remedies,  §  115.  edies,  §§  116,  117,  183;  Lowe  v.  Morgan,  1 

2  Pomeroy's  Remedies,  §  119.  Bro.  C.  C.  368;  Stansfield  v.  Hobson,  16 

3  Palmer  v.  Carlisle,  1  S.  &  S.  423,  425.  Beav.  189  ;  Palmer  v.  Carlisle,  1  S.  &  S. 
Sir  John  Leach  said:  "There  can  be  no  423,  425;  Noyes  v.  Sawyer,  3  Vt.  160; 
foreclosure  or  redemption  unless  the  parties  Pogue  v.  Clark,  25  111.  351  ;  Shirkey  v. 
entitled  to  the  whole  mortgage  money  are  Hanna,  3  Blackf.  403,  26  Am.  Dec.  426; 
before  the  court."  Carpenter  v.  O'Dough-  Stucker  v.  Stucker,  3  J.  J.  Marsh.  301  ; 
erty,  2  T.  &  C.  427,  67  Barb.  397,  affirmed  Woodward  v.  Wood,  19  Ala.  213. 

58  N.  Y.  681  ;  Pine  v.  Shannon,  30  N.  J.  Eq. 

303 


§  1369.]  -  OF   PARTIES   PLAINTIFF. 

1369.  Joinder  of  plaintiff.  —  It  is  not  very  material,  however,  in 
an  equity  suit,  whether  more  than  one  of  the  persons  interested  in 
prosecuting  it  is  nominally  made  a  plaintiff.  It  is  generally  sufficient 
that  the  persons  to  be  bound  by  the  decree  shall  be  brought  before 
the  court  in  some  capacity. ^  When  a  person  having  an  interest  in 
the  security  is  made  a  defendant  in  the  action,  the  bill  ought  to 
show  his  refusal  to  join  as  a  plaintiff;  but  this  omission  is  not 
material  unless  such  defendant  objects  by  demurrer.^  If  several 
persons  have  rights  and  interests  in  the  same  demand  and  security, 
even  if  these  are  not  strictly  joint,  and  are  entitled  to  the  same 
relief,  they  should  naturally  join  as  plaintiffs  in  seeking  it.  But  if 
one  of  the  persons  so  interested  institutes  the  suit,  and  makes  the 
others  having  like  interests  defendants,  the  requirements  of  equity 
are  generally  satisfied.  If  several  persons  have  claims  alike  in 
being  antagonistic  to  the  defendant,  but  several  and  distinct  in  their 
nature,  because  they  have  arisen  out  of  different  events  and  circum- 
stances, although  they  may  join  as  co-plaintiffs  in  seeking  the  same 
relief,  in  actual  practice  one  person,  perhaps  by  reason  of  his  greater 
interest  or  more  urgent  occasion  for  relief,  institutes  the  suit  with- 
out asking  the  cooperation  of  the  others,  making  them  defendants. 
And  finally,  as  no  one  can  be  made  a  plaintiff  against  his  will,  this 
practical  restriction  in  many  cases  determines  the  question  whether 
a  person  shall  be  made  a  plaintiff  or  defendant. 

There  are,  however,  some  decisions  at  variance  with  these  gener- 
ally established  doctrines  in  equity.  Thus,  it  was  held  in  one  case 
that  where  a  mortgage  was  given  to  secure  two  or  more  notes  which 
were  transferred  to  different  persons,  the  holders  could  not  join  in 
an  action  to  foreclose  it,  although  a  pro  rata  interest  in  the  security 
was  assigned,  because,  the  indebtedness  having  been  severed,  the 
demands  were  distinct  and  separate.  The  rights  of  all  parties 
were,  however,  protected  and  determined  in  one  action  in  which 
the  holder  of  one  note  was  made  plaintiff,  and  the  holders  of  the 
others  defendants,  who  answered  in  the  form  of  cross-bills,  and  had 
their  rights  fixed  by  the  decree.^ 

It  is  not  material  that  the  interests  of  the  several  plaintiffs  should 
be  coextensive,  or  that  they  should  have  originated  at  the  same  time. 

1  Wilkins  v.  Fry,  1    Mer.  244,  262,  per  2  Hancock   v.    Hancock,  22  N.  Y.  568  ; 

Sir  William  Grant:  "In  equity  it  is  suffi-  Carpenter  v.  O'Dougherty,  58  N.  Y.  681. 

cient  that  all  parties  interested  in  the  sub-  ^  Rankin  v.   Major,   9    Iowa,    297.     To 

ject  of  the  suit  should  be  before  the  court,  like  effect  see  Thayer  v.  Campbell,  9  Mo. 

either  in  the  shape  of  plaintiffs  or  defend-  280.     But  the  court  say  that  the  proceeding 

ants,"  to  foreclose  is  one  at  law,  and  is  not  gov- 
erned by  the  rules  in  equity. 

804 


WHO   ARE    PROPER    PARTIES.  [§§  1370,  1371. 

Neither  is  the  extent  of  the  interest  material,  if  there  be  any  inter- 
est at  all ;   nor  whether  it  be  absolute  or  conditional. ^ 

1370.  Real  party  in  interest.  —  Moreover,  the  codes  of  all  these 
States  provide  that  "  every  action  must  be  prosecuted  in  the  name  of 
the  real  party  in  interest,"  ^  thus  recognizing  another  established 
principle  of  equity  and  extending  it  to  all  actions.  The  applica- 
tion of  this  rule  to  the  question.  Who  can  prosecute  a  suit  to  fore- 
close a  mortgage?  is  of  special  service  in  answering  it  in  the  case  of 
an  assignment  of  the  mortgage,  whether  this  be  a  legal  or  equitable 
assignment.  If  the  assignee  be  the  legal  owner  of  both  the  mort- 
gage and  the  mortgage  debt,  he  must  of  course  bring  the  action.  If 
he  is  the  equitable  assignee.only,  he  is  still  the  proper  plaintiff,  and 
generally  the  only  plaintiff  necessary,  though  by  statute  in  a  few 
of  the  States  the  assignor  retaining  the  legal  title  should  be  joined 
either  as  plaintiff  or  defendant.  A  mortgage  to  one  as  cashier  of  a 
bank  to  secure  a  loan  made  by  the  bank  may  be  enforced  by  a  suit 
in  the  name  of  the  bank,  without  assignment  or  indorsement.  The 
cashier  cannot  maintain  such  suit  alone.  The  bank  is  a  necessary 
party,  and  must  join  with  the  cashier  if  he  is  made  a  party  to  the 
suit.^  A  note  and  mortgage  given  to  secure  an  indebtedness  to  a 
county,  made  in  terms  to  the  supervisors  of  such  county  or  their 
successors  in  office,  may  be  declared  upon  as  obligations  to  the 
county,  and  the  suit  may  be  brought  in  the  name  of  the  board  of 
supervisors.* 

A  subsequent  judgment  creditor  of  the  mortgagor  having  a  lien 
upon  the  equity  of  redemption  may  redeem  the  mortgage  and  then 
foreclose  it ;  but  without  having  redeemed  he  cannot  maintain  a  bill 
in  equity  to  have  the  mortgage  foreclosed,  and  the  proceeds  of  sale 
applied,  after  payment  of  the  mortgage  debt,  to  the  satisfaction  of 
his  judgment.^ 

1371.  The  plaintiff  must  have  some  interest.  After  an  abso- 
lute assignment  the  suit  cannot  be  prosecuted  in  the  mortgagee's 
name  for  the  use  of  the  assignee.^  The  plaintiff  must  have  either 
the  legal  or  equitable  interest.  If  he  has  not  both  these  interests, 
he  must  make  the  holder  of  the  other  interest  a  party  with  himself ; 
if  not  plaintiff,  then  as  defendant.  The  plaintiff  must,  however, 
have  some  interest  either  as  mortgagee  or  assignee.'^  If  he  has  only 
a  partial  interest,  the  remedy  given  is  limited  to  the  extent  of  that 

1  Pomeroy's  Remedies,  §  199.  ^  Kelly  v.  Longshore,  78  Ala.  203. 

2  Pomeroy's  Kemedies,  §  124.  <"•  Barraque  v.  Manuel,  7  Ark.  516. 

3  Moore  u.  Pope  (Ala.),  11  So.  Rep.  840.  "  Bolles  i'.  Carll,  12  Minn.  113. 
*  Oconto  County  v.  Hall,  42  Wis.  59. 

VOL.  II.  20  305 


§§  1372-1374.]  OF   PARTIES   PLAINTIFF. 

interest.  Therefore,  where  the  holder  of  two  mortgage  notes  as- 
signed one  of  them,  and  afterwards  brought  suit  to  foreclose  the 
other,  he  was  not  allowed  to  take  judgment  for  the  amount  of  the 
assigned  note  as  well  as  for  that  of  the  note  retained  by  him, 
although  he  was  liable  upon  the  other  note  as  indorser.^ 

A  purchaser  at  a  foreclosure  sale  who  has  subsequently  discovered 
that  there  was  a  junior  mortgage  upon  the  property,  the  holder  of 
which  was  not  made  a  party  to  the  foreclosure  suit,  may  take  an 
assignment  of  the  foreclosed  mortgage  and  maintain  a  second  fore- 
closure suit  to  cut  off  such  junior  mortgagee.^ 

1372.  It  is  apparent,  therefore,  that  a  formal  legal  assignment i 
is  not  requisite  in  equity  to  enable  the  assignee  to  enforce  the  mort- 
gage in  his  own  name.  If  he  is  the  real  party  in  interest,  the  form 
by  which  he  acquires  this  interest  is  quite  immaterial.  A  verbal 
assignment,  even,  of  the  bond  and  mortgage,  gives  the  assignee  an 
equitable  claim  to  them,  and  enables  him  to  bring  an  action  upon 
them  in  his  own  name.^ 

1373.  If  the  mortgage  has  been  in  legal  form  assigned  ab- 
solutely and  the  mortgagee  retains  no  further  interest  in  it,  he  is 
not  a  proper  party  to  the  suit.^  "  It  is  enough  to  make  that  man 
a  party  who  has  contracted  to  stand  in  the  place  of  the  original 
mortgagee  and  of  all  assignees."  ^ 

1374.  A  mortgagee  who  has  assigned  his  mortgage  as  col- 
lateral security  for  his  own  debt,  but  still  has  a  pledgor's  interest 
in  the  mortgage,  should  be  made  a  party  to  a  suit  by  the  assignee 
to  foreclose  it,  although  the  assignment  be  in  terms  absolute,  and 
recites  the  payment  of  a  full  consideration  for  it ;  ^  otherwise  the 
effect  of  the  foreclosure  as  between  the  pledgor  and  pledgee  is 
simply  to  substitute  the  land  for  the  mortgage,  and  the  pledgee  will 
hold  it  subject  to  redemption  by  the  pledgor,  although  the  fore- 
closure may  be  effectual  to  cut  off  the  equit}^  of  redemption  of  the 
mortgagor  and   all   persons  claiming  under  him  except  the  mort- 

1  Haynes  v.  Seachrest,  13  Iowa,  455.  485 ;  Walker   v.   Bank   of   Mobile,  6  Ala. 

-  Franklyn  v.  Hayward,  61  How.  Pr.  43.  452;  Newman  v.  Chapman,  2  Kand.  93,  14 

3  Green  u.  Marble,  37  Iowa,  95 ;  Andrews  Am.  Dec.  766;  Prout  v.  Hoge,  57  Ala.  28. 

V.  McDaniel,  68  N.  C.  385.     This  last  was  See,  however,  Saenger   v.  Nightingale,  48 

an  unindorsed  note.  Fed.  Rep.  708. 

*  Walker   v.    Smalwood,   2   Amb.   676;  ^  Chambers  v.  Goldwin,  9  V(^.  254,  264. 

Gaskell  v.  Durdin,  2  Ball  &  B.  167  ;  Miller  ^  Hobart  v.  Abbot,  2  P.  Wms.  643  ;  Gage 

V,  Henderson,  10  N.  J.  Eq.  320;  Parker  v.  v.  Stafford,  1  Ves.   Sen.   544;  Johnson   v. 

Stevens,  3  N.  J.  Eq.  56  ;  McGuffey  v.  Fin-  Hart,  3  Johns.  Ch.  322  ;  Whitney  v.  M'Kin- 

ley,   20   Ohio,   474;  Christie  v.  Herrick,  I  ney,  7  Johns.  Ch.  144;  Kittle  r.  Van  Uyck, 

Barb.    Ch.   254 ;  Whitney   v.  M'Kinney,  7  1   Sandf.   Ch.  76  ;  Cerf  v.  Ashley,  68  Cal. 

Johns.  Ch.  144  ;  Garrett  u.Puckett,  15  Ind.  419. 


06 


WHO   ARE   PROPER   PARTIES.  [§  1375. 

gagee.i  If,  however,  it  appears  from  the  assignment  that  it  was  the 
intention  of  the  assignor  to  give  the  assignee  the  right  to  foreclose, 
or  to  receive  the  moneys  in  his  own  name,  it  is  unnecessary  to  make 
the  assignor  a  party,  although  he  retains  an  interest  in  the  mortgage. 
It  was  so  held  where  the  assignment  was  absolute  in  form,  except 
that  it  stated  that  the  money,  when  collected,  was  to  be  applied  in 
liquidation  of  the  debts  for  which  the  complainant  stood  security  for 
the  assignor.2  It  is  proper,  however,  to  join  both  the  assignor  and 
assignee  as  plaintiffs  in  the  action.^ 

1375.  One  who  holds  the  mortgage  as  a  collateral  security 
for  a  smaller  debt  due  him  from  the  assignor  must  make  the  latter  a 
party  to  the  suit  to  enforce  it,  inasmuch  as  he  is  interested  to  the 
amount  of  the  surplus  above  his  debt.*  This  is  in  accordance  with 
the  general  rule  that  all  who  are  interested  in  the  mortgage  debt 
must  be  made  parties  to  the  foreclosure  suit.  And  if  in  any  way 
the  assignment  of  the  mortgage  be  not  absolute,  and  the  mortgagee 
retains  an  interest  in  the  security,  he  is  a  necessary  party.^  Even 
if  the  assignment  is  absolute  in  its  terms  and  expresses  the  payment 
of  a  full  consideration,  the  mortgagee  should  still  be  made  a  party 
if  the  assignee  is  accountable  to  him  for  any  part  of  the  proceeds  of 
it.^  The  fact  that  he  is  liable  to  account  does  not,  however,  impair 
the  right  of  the  assignee  to  enforce  collection  of  the  mortgage.^  This 
only  affects  the  amount  for  which  he  may  have  a  decree.  He  is  the 
proper  party  to  institute  the  proceedings,  having  the  legal  and  ap- 
parent title.^  If  in  such  case  the  assignee  refuses  to  foreclose,  and 
the  collateral  character  of  the  assignment  appears  on  the  face  of  it, 
the  assignor  may  foreclose  in  his  own  name ;  ^  and  it  would  seem 
that  his  interest  might  be  established  by  evidence  aside  from  any- 
thing upon  the  face  of  the  assignment,  so  that  he  might  enforce  the 
mortgage  upon  the  neglect  or  refusal  of  the  assignee  to  do  so,  on  the 
same  principle  by  which  it  is  held  that  a  verbal  assignment  of  a 
bond  and  mortgage  entitles  the  assignee  to  sue  in  his  own  name.^*' 
In  such  case  the  assignee  may  be  made  a  party  defendant,  and 
neither  the  mortgagor  nor  any  person  other  than  the  assignee  him- 
self can  object.^i 

J  Matter  of  Gilbert,  104  N.  Y.  200.  8  McKinney    v.    Miller,    19    Mich.    142; 

2  Christie  v.  Herrick,  1  Barb.  Ch.  254.  Norton  v.  Warner,  3  Edw.  Ch.  106. 

"  Hoyt  V.  Martense,  16  N.  Y.  231.  9  Simson  v.  Satterlee,  6  Ilun,  305;  Nor- 

*  Woodruff  V.  Depue,  13  N.  J.  Eq.  168,  ton  v.  Warner,  3  Edw.  Cli.  106;  Sinking 

'"6-  Fund  Commissioners  y.  Northern  Bank  of 

5  Miller  v.  Henderson,  10  N.  J.  Eq.  320.  Kentucky,  1  Mete.  174. 

6  Kittle  V.  Van  Dyck,  1  Sandf.  Ch.  76.  i"  See  §  1377. 

^  Overall  v.  Ellis,  32  Mo.  322.  "  Simson  v.  Satterlee,  6  Hun,  305. 

307 


§§  1375  a-1377.]  of  parties  plaintiff. 

But  if  on  the  f;ice  of  the  pleadings  no  necessity  appeal's  for  mak- 
ing the  assignor  a  party,  and  it  does  not  appear  that  he  has  any 
interest,  an  objection  raised  at  the  hearing,  that  he  is  not  a  party, 
will  not  prevail.^ 

1375  (u  If  a  mortgage  has  been  assigned,  the  assignee  should 
maintain  the  suit  to  foreclose  the  mortgage  ;  and  even  if  the  as- 
signment is  made  pending  a  foreclosure  suit  by  the  mortgagee,  the 
assignee  may  generally  be  substituted  as  plaintiff.  If  a  counter- 
claim has  been  filed  against  the  mortgagee,  this  may  be  applied  as 
against  such  assignee.^ 

If  a  mortgage  of  indemnity  has  been  assigned  after  the  mort- 
gagee's claim  under  the  mortgage  has  become  fixed,  the  assignee 
should  maintain  the  suit  to  foreclose  the  mortgage.^ 

The  plaintiff  in  a  process  of  garnishment  against  a  mortgagor 
and  his  mortgagee,  after  obtaining  judgment,  is  in  legal  effect  an 
assignee  of  the  mortgage  and  mortgage  debt,  and  may  maintain 
an  action  to  foreclose  the  mortgage.^ 

1376.  The  assignee  of  a  mortgage,  without  the  bond  or  note 
secured  by  it,  has  no  interest  in  it  as  against  a  subsequent  assignee 
of  both,  and  cannot  foreclose  it.^  The  debt  is  the  principal  thing, 
and  the  mortgage  only  the  incident.  The  assignment  of  the  mort- 
gage by  delivery  merely  does  not  carry  with  it  the  bond  or  note, 
and  is  not  conclusive  evidence  of  an  intention  to  pass  it ;  although 
genei'ally  the  mortgage  passes  by  a  transfer  of  the  bond  or  note  so 
as  to  make  an  equitable  transfer  of  the  mortgage. 

1377.  Assignee  of  mortgage  note.  —  In  most  of  the  States 
the  doctrine  prevails  that  the  mortgage  debt  is  the  essential  fact, 
and  the  mortgage  itself  a  mere  incident  of  it ;  and,  as  a  conse- 
quence, that  a  transfer  of  the  note  or  other  evidence  of  the  debt 
carries  with  it  the  security  without  a  special  assignment  of  it.  In 
those  States,  therefore,  a  suit  to  foreclose  the  mortgage  may  be 
brought  by  the  assignee  without  making  the  mortgagee  who  as- 
signed it  a  party.*^  Under  statutes  which  require  suits  to  be 
brought  in  the  name  of  the  real  party  in  interest,  a  foreclosure 
suit  should  be  brought  in  the  name  of  the  equitable  owner  of  the 

1  Steveus  v.  Reeves,  33  N.  J.  Eq.  427;  ^  Cooper  u.-Newland,  17  Abb.  Pr.  342; 
Woodruff  V.  Depue,  14  N.  J.  Eq.  168.  Merritt  v.  Bartholick,  47  Barb.  253. 

2  Schlicliter  V.  Brooklyn  Sawmill  Co.  35  «  gwett    v.    Stark,  31    Fed.    Rep.    858; 
Hun,  339.  Gower  v.  Howe,  20  Ind.  396  ;   Garrett   v. 

3  Bendey  v.  Townsend,  109  U.  S.  665,  3  Puckett,  15  Ind.  485;  Austin  v.  Burbank, 
Sup.  Ct.  Rep.  482.  2  Day,  476,   11  Am.  Dec.  119;  Brijrgs  v. 

*  Alsdorf  V.  Reed,  45  Ohio  St.  653,  17  N.    Hannowald,  35  Mich.  474;  Michigan  State 
E.  Rep.  73.  Bank  v.  Trowbridge,  92  Mich.  217,  52  N. 


308 


W.  Rep.  632. 


WHO   ARE  PROPER   PARTIES.  [§§  1377  a,  1378. 

note  secured,  although  he  be  not  the  payee  or  indorsee.^  The 
holder  of  the  mortgage  without  the  debt  has  no  interest  in  it. 
The  equitable  assignee  may,  however,  join  the  assignor  with  him 
in  the  suit,^  or  make  him  a  defendant.^  Even  where  the  assign- 
ment of  the  note  is  not  a  legal  assignment  of  the  mortgage,  the 
assignee  of  the  note  acquires  an  equitable  interest  which  a  court 
of  equity  will  protect,  though  all  parties,  including  the  mortgagee, 
whether  having  equitable  or  legal  interests,  must  be  parties  to 
the  suit.'*  Under  the  practice  in  some  States,  the  assignee  of  the 
note  in  such  case  may  sue  in  the  name  of  the  mortgagee,  even 
against  his  consent,  on  giving  him  proper  indemnity  against  costs.^ 
If  the  mortgage  debt  be  assigned  by  parol  merel}^,  the  legal  title 
remaining  in  the  mortgagee,  he  is  a  necessary  party  to  a  bill  filed 
by  such  equitable  assignee.^ 

1377  a.  The  assignee  in  bankruptcy  of  the  holder  of  a  mort- 
gage should  enforce  the  mortgage,  if  it  is  for  the  benefit  of  the 
bankrupt's  estate  that  he  should  do  so.  But  if  he  abandons  the 
right,  or  declines  to  prosecute  a  suit  already  pending  in  favor  of 
the  bankrupt,  as  he  may  properly  do  when,  for  instance,  the  mort- 
gage note  has  been  pledged  by  the  bankrupt  and  he  does  not  con- 
sider it  worth  while  to  redeem  from  the  pledge,  the  bankrupt  may 
maintain  the  suit.  The  right  of  property  in  such  case  remains  in, 
or  is  restored  to,  the  bankrupt,  for  he  has  the  right  against  every 
one  but  the  assignee.^ 

A  receiver  of  the  property  of  a  corporation,  partnership,  or  indi- 
vidual, appointed  by  order  of  court  with  power  to  collect  debts  and 
for  that  purpose  to  institute  suits,  in  foreclosing  a  mortgage  should 
join  with  him  as  complainant  the  mort^gagee  in  whom  the  legal  title 
is  vested  ;  ^  unless  the  appointment  be  made  under  a  statute  which 
vests  the  title  to  the  property  in  the  receiver.^ 

1378.  The  holder  of  one  of  several  notes  secured  by  the 
same  mortgage  may  proceed  in  the  first  instance  to  foreclose  by 
suit  in  equity  without  suing  at  law  ;  but  all  the  other  mortgagees 
or  holders  of  notes  secured  by  it  must  be  brought  before  the  court 
as  defendants  before  a  decree  is  made.^*^     There  are  as  many  causes 

1  Irish  V.  Sharp,  89  111.  261.  5  Calhoun  v.  Tullass,  35  Ga.  119  ;  Eng- 

2  Holdrige  v.  Sweet,  23  Ind.  118.  lish  v.  Register,  7  Ga.  387. 

3  Burton  v.  Baxter,  7  Blackf.  297  ;  Stone  «  Denby  v.  Mellgrew,  58  Ala.  147. 
V.  Locke,  46  Me.  445.  "  Towle  v.  Rowe,  58  N.  H.  394. 

*  Moore  v.  Ware,  38  Me.  496;  Stone  v.        ^  Comer  v.   Bray,    83    Ala.    217,   3    So. 
Locke,   46   Me.   445;  Bibb   v.   Hawley,  59     Rep.    554;    Harland    i-.    Bankers'    &    Mer- 
Ala.  403;  Prout  v.  Hoge,  57  Ala.  28  ;  Hop-    chants'  Tel.  Co.  32  Fed.  Rep.  305. 
son  V.  iEtna  Axle  &  Spring  Co.  50  Conn.        '•»  Miller  v.  Mackenzie,  29  N.  J.  Eq.  291. 
597.  I'J  §  1479  ;  Goodall  v.  Mopley,  45  Ind.  355 ; 

309 


§§  1379,  1380.]  OF    PARTIES   PLAINTIFF. 

of  action  as  there  are  separate  notes  in  the  hands  of  different  per- 
sons. Two  holders  of  notes  cannot  join  as  plaintiffs  to  enforce 
the  mortgage.  There  is  no  community  of  interest  between  such 
holders,  but  rather  an  antagonism.  Only  one  such  holder  can  be 
plaintitf,  and  he  must  make  the  otlier  holders  defendants,  so  that 
the  amounts  and  priorities  of  their  sevei-al  liens  may  be  deter- 
mined.^ The  plaintiff's  allegation,  that  another  note  secured  by 
the  mortgage  may  be  presumed  from  lapse  of  time  and  other  cir- 
cumstances to  have  been  paid,  is  insufficient  to  excuse  his  not 
making  the  assignee  of  it  a  party  to  the  suit.^  If  the  other  mort- 
gagees make  default,  they  lose  their  interest  in  the  property  mort- 
gaged by  failure  to  redeem  from  a  sale  under  such  foreclosure, 
where  this  is  allowed,  and  cannot  thereafter  foreclose  their  interest 
in  such  mortgage.^ 

The  holder  of  overdue  coupon  interest  notes,  secured  by  mort- 
gage, may  in  like  manner  maintain  an  action  to  foreclose  the  mort- 
gage, although  the  principal  debt  is  not  yet  mature  and  is  held  by 
another  person.* 

1379.  A  partner  who  holds  a  mortgage  as  security  for  a  debt 
due  the  partnership  should  join  the  other  partners  with  him  as 
plaintiffs  in  an  action  to  foreclose  it.^ 

Where  a  mortgage  is  made  to  a  partnership  in  the  firm  name, 
the  mortgagees  are  sufficiently  identified  by  making  the  individual 
partners  plaintiffs  in  the  proceedings,  and  alleging  that  they  consti- 
tute the  firm  named.^ 

1380.  A  surety  of  a  debt  secured  by  mortgage  on  lands  of  the 
principal  on  paying  the  debt  is  subrogated  in  equity  to  the  rights 
of  the  mortgagee,  and  may  foreclose  in  his  own  name  without  an 
assignment  of  the  mortgage  and  bond."  In  like  manner  a  pur- 
chaser who  has  assumed  the  payment  of  a  mortgage  on  land  which 

Stanley  v.  Bcatty,  4  Ind.  134;  Merritt  v.  *  Cleveland    v.  Booth,  43  Minn.    16,  44 

Wells,  18  Ind.  171;    Rankin  v.  Major,  9  N.  W.  Rep.  670. 

Iowa,  297  ;  Myers  v.  Wright,  33  111.  284;  ^  Noyes  v.  Sawyer,  3  Vt.  160;  De  Greiff 

Pogue    V.    Clark,  25    111.   351  ;    Wilson   v.  v.  Wilson,  30  N.  J.  Eq.  435,  citing  text  with 

Hayward,  2  Fla.  27 ;   Wiley  );.   Pinson,  23  approval.     But  in  Michigan  it  is  held  that 

Tex.  486;  Hart  well  V.  Blocker,  6  Ala.  581;  it   is   immaterial   whether   a   partner   who 

Johnson  v.  Brown,  31  N.  H.  405  ;  Pettibone  holds  a  mortgage  as  trustee  for  the  partner- 

V.  Edwards,  15  Wis.  95;  Jenkins  v.  Smith,  ship  joins  his  partners  or  not.     Shelden  v. 

4   Mete.   380;    Utz   v.   Utz,  34   La.   Ann.  Bennett,  44  Mich.  634. 

752.  6  Bernstein  v.  Hobelman,  70  Md.  29,  16 

1  Swenson    v.    Moline    Plough    Co.    14  Atl.  Rep.  374. 

Kans.  387.  ''  Ellsworth  v.  Lockwood,  42  N.  Y.  89  ; 

^  Bell  V.  Shrock,  2  B.  Mon.  29.  Halsey  v.  Reed,  9  Paige,  446. 

3  O'Brien  v.  Moffitt  (Iud.),33  N.  E.  Rep. 
616. 

310 


WHO   ARE   PROPER   PARTIES.  [§§  1381,  1382. 

he  has  subsequently  sold  to  another,  who  in  turn  has  assumed  the 
mortgage  but  has  failed  to  pay  it,  may  upon  being  obliged  to  pay 
it  foreclose  it  in  his  own  name  without  having  an  assignment  of 
it.i  And  a  person  interested  in  the  land  subject  to  the  mortgage, 
though  not  personally  bound  to  pay  it,  upon  doing  so  for  his 
own  protection  has  the  same  right.2  It  is  even  held  that  without 
paying  the  debt  a  surety  may  file  a  bill  to  foreclose  the  mortgage, 
making  the  mortgagee  a  party,  and  asking  for  judgment  against 
the  persons  primarily  liable.^ 

1381.  Joint  mortgagees.  —  Where  one  of  two  joint  mortgagees 
has  become  the  owner  of  the  equity  of  redemption,  the  other  can 
maintain  against  him  a  bill  for  foreclosure  to  the  extent  of  his  in- 
terest.* In  like  manner  a  note  and  mortgage  given  by  thirteen 
persons  to  three  of  their  number  may  be  foreclosed  for  ten  thir- 
teenths of  the  debt,  by  a  suit  in  which  the  three  join  as  plaintiffs 
against  the  others  as  defendants.^  A  mortgagee  of  an  undivided 
interest  may  foreclose  that  interest  although  he  is  the  owner  of  the 
other  undivided  part  of  the  land,'^  or  although  a  suit  for  partition  is 
pending.'^  A  mortgagee  is  not  prevented  from  foreclosing  by  rea- 
son of  being  one  of  the  trustees  who  hold  the  equity  of  redemption  ; 
he  may  bring  the  action  against  his  co-trustees,^  or  one  of  several 
executors  holding  the  estate  ;  he  may  as  mortgagee  foreclose  his 
mortgage  upon  it  against  his  co-executors.^ 

If  one  joint  mortgagee  owning  one  half  of  the  security  surren- 
ders his  share  of  the  notes  to  the  mortgagor  and  takes  a  quitclaim 
deed  of  an  undivided  half  of  the  mortgaged  land,  he  is  not  a  proper 
party  to  foreclosure  proceedings  subsequently  instituted  by  the 
other ;  for  such  mortgagee  then  has  a  mortgage  upon  an  undivided 
half  of  the  land,  and  he  can  foreclose  it  by  a  decree  against  the 
m.ortgagor.io 

1382.  When  a  mortgage  secures  an  indebtedness  due  to  the 
mortgagees  jointly,  their  interest  in  the  estate  so  far  partakes  of 

J  New  York  :  McLean  o.  Towlc,  3  Sandf.  *  Sanford  v.  Bulkley,  30  Conn.  344. 

Ch.  117  ;  Tice  v.  Annin,  2  Johns.  Ch.  125;  5  McDowell  v.  Jacobs,  10  Cal.  387. 

Cherry  v.  Monro,  2  Barb.  Ch.  618  ;  Ferris  6  Baker  v.  Shephard,  30  Ga.  706. 

V.  Crawford,  2  Den.  .595 ;  Johnson  v.  Zink,  "  Gleises  v.  Maignan,  3  La.  530,  23  Am. 

52  Barb.  396  ;  Brewer  v.  Staples,  3  Sandf.  Dec.  466. 

Ch.    579.     California :    Waldrip   v.  Black,  ^  Paton  v.  Murray,  6  Paige,  474. 

16  Pac.  Rep.  226.  9  McGregor  v.  McGregor,  35  N.  Y.  218 ; 

-  Ellsworth  V.  Lockwood,  42  N.  Y.  89;  Lawrence  v.  Lawrence,  3  Barb.  Ch.  71. 

Averill  v.  Taylor,  8  N.  Y.  44.  W  Sowles  v.  Buck,  62   Vt.  203,   20  All. 

3  Marsh  v.   Pike,  1    Sandf.  Ch.  210,    10  Rep.  146. 
Paige,  595 ;  M'Lean  v.  Lafayette  Bank,  3 
McLean,  587. 

311 


§  1383.]  OF   PARTIES   PLAINTIFF. 

the  nature  of  the  debt  that  the  doctnne  of  survivorship  applies,  and 
the  suit  to  foreclose  may  be  brought  in  the  name  of  the  survivor, 
without  making  the  heir  or  personal  representatives  of  the  deceased 
mortgagee  a  party. ^  If  there  are  conflicting  claims  as  to  the  mort- 
gage money,  the  executor  of  the  deceased  mortgagor  shq^ild  be 
made  a  defendant.^  The  survivor  of  joint  assignees  of  a  mort- 
gage of  course  has  the  same  right  to  foreclose,  without  joining  the 
personal  representatives  of  the  deceased  assignee,  that  the  survivor 
of  joint  mortgagees  has.^ 

If  the  money  equitably  belongs  to  the  mortgagees  severally,  the 
representatives  of  one  of  the  deceased  mortgagees  should  be  joined 
with  the  survivor.* 

If  the  mortgagees  have  no  joint  or  common  interest  in  the  debt 
secured  by  the  mortgage,  this  fact  should  be  alleged  in  the  bill,  and 
the  decree  be  for  the  payment  of  the  sums  due  to  each  severally.^ 

1383.  It  is  a  general  rule  that  a  nominal  trustee  cannot 
bring  the  suit  in  his  own  name  alone,  but  must  join  with  him  the 
names  of  those  persons  who  have  the  beneficial  interest.^  The 
trustee  in  a  deed  of  trust  is  a  necessary  party, ^  and  he  should  join 
with  himself  the  holder  of  the  debt  secured.^  But  where,  on  ac- 
count of  the  number  of  the  persons  interested,  great  inconvenience 
and  expense  would  be  incurred  in  joining  them  in  the  bill,  the  court 
will  in  its  discretion  disjoense  with  a  strict  adherence  to  this  rule.^ 
Accordingly  where  a  mortgage  was  made  to  a  banker  as  "  the  agent 
and  trustee  of  the  several  subscribers  to  the  loan,"  which  was  of 
larsje  amount,  it  was  held  that  the  moita'agee  mitrht  file  the  bill  in 
his  own  name  alone. ^'^  And  where  a  bill  is  brought  by  the  trustees 
of  a  mortgage  by  a  railroad  company  to  foreclose  the  mortgage,  the 
holders  of  the  bonds  secured  are  not  necessary  or  proper  parties 
complainant,  though  there  may  be  circumstances  which  would  au- 
thorize the  court  to  admit  any  of  them  as  defendants  on   their  own 

1  Williams  v.  Hilton,  35  Me.  547,  58  Am.  man  v.  Scofield,  16  N.  J.  Eq.'28  ;  Woodruff 
Dec.  729;  Blake  v.  Sanborn,  8  Gray,  154;  v.  Depue,  14  N.  J.  Eq.  168,  176;  Large  v. 
Martin  v.  McReynolds,  6  Mich.  70;    Lan-  Van   Doreu,  14  N.  J.  Eq.  208;  Jewell  v. 
nay    v.    Wilson,    30   Md.    536  ;    Milroy    v.  West  Orange,  36  N.  J.  Eq.  403. 
Stockwell,  1   Ind.  35 ;  Erwin  v.  Ferguson,  "  Harlow  v.  Mister,  64  Miss.  25. 

5  Ala.  158;  McAllister  v.  Plant,  54  Miss.        »  Boyd  r.  Jones,  41  Ark.  314. 

106.  9  Bardstown  &  Louisville  R.  R.  Co.  v. 

2  Freeman  v.  Scofield,  16  N.  J.  Eq.  28.         Metcalfe,  4  Mete.  199  ;  Swift  v.  Stebbins, 

3  Martin  v.  McReynolds,  6  Mich.  70.  4  Stew.  &  Port.  447  ;  Wright  v.  Bundy,  11 
*  Vickers  v.  Cowell,  1  Beav.  529.  Ind.  398  ;    Land  Co.  v.  Peck,  112  111.  408; 

5  Higgs  V.  Hanson,  13  Nev.  356  ;    Jitua  Lambertville  Nat.   Bank  v.  Bag  &  Paper 
L.  Ins.  Co.  V.  Finch,  84  Ind.  301.  Co.  (N.  J.)  15  Atl.  Rep.  388. 

6  Davis    V.    Hemingway,    29    Vt.    438;  i"  Willink  v.   Morris    Cannl   &  Banking 
Stillwell  I'.  M'Neely,  2  N.  J.  Eq.  305  ;  Free-  Co.  4  N.  J.  Eq.  377. 

312 


WHO   ARE    PROPER    PARTIES.  [§§  1384,  1385. 

application. 1  In  such  suit  the  beneficiaries,  though  not  named  as 
parties  to  the  record,  are  privy,  and  are  estopped  by  the  decree  in 
the  absence  of  fraud.^  If  there  are  several  mortgage  trustees,  they 
should  join  in  a  suit  to  foreclose  ;  but  circumstances  may  render  a 
suit  by  one  or  more  without  the  others  proper.  Thus  one  of  three 
trustees  in  a  trust  deed  is  entitled  to  sue  alone  for  foreclosure  when 
he  avers  that  one  of  the  others  is  dead,  and  that  the  remaining  one 
claimed  to  be  interested  in  the  propert}'',  and  "  is  interested  ad- 
versely to  your  orator  as  trustee  of  said  bondholders."  ^  Where  a 
mortgage  is  made  or  assigned  to  the  cashier  of  a  bank,  not  as  an 
individual,  but  as  an  officer  of  the  bank,  he  is  not  a  necessary  party 
in  an  action  by  the  bank  to  foreclose  the  mortgage ;  for  the  mort- 
gage shows  that  it  is  a  contract  with  the  bank.'* 

If,  however,  the  only  object  of  the  foreclosure  suit  is  to  reduce 
the  property  into  possession,  it  is  not  necessary  to  make  the  cestui 
que  trust  a  party  to  it.^ 

In  a  suit  by  a  receiver  appointed  to  collect  a  mortgage  and  bond 
and  distribute  it  among  certain  persons  named,  the  receiver  should 
join  these  beneficiaries  as  parties  complainant.^ 

1384.  If  a  cestui  que  trust,  or  other  holder  of  the  mortgage 
debt,  brings  a  bill  to  foreclose,  the  trustee  is  an  indispensable 
part}',  because  it  is  more  particularly  the  legal  estate  that  is  affected 
by  the  decree  of  foreclosure  and  sale,  and  in  case  of  redemption 
the  trustee  is  the  one  to  release  the  property.  The  trustee  and  the 
beneficiary  should  unite  as  plaintiffs." 

1385.  A  holder  of  bonds  secured  by  a  mortgage  may  file  a 
bill  to  foreclose  in  behalf  of  himself  and  the  other  bondholders, 
whose  rights  the  court  will  protect,  though  they  be  not  made  par- 

1  Williamson  v.  N.  J.  Southern  R.  R.  Co.  gun   State  Bank  v.  Trowbridge,  92  Mich, 

25  N.  J.  Ch.  13  ;  McElrath  v.  Pittsburg  &  217,  52  N.  W.  Rep.  632. 

Steubenville  R.  R.  Co.  68  Pa.  St.  37  ;  Amer-  5  gill   v.   Ketchuni,    Harr.    (Mich.)    Ch. 

ican   Tube  Co.   v.    Kentucky  Gas    Co.   51  423. 

P'ed.  Rep.  826;  Fidelity  Trust  Co.  v.  Mo-  «  Tyson  v.  Applegate,  40  N.  J.  Eq.  305, 

bile  St.  Ry.  Co.  53  Fed.  Rep.  850 ;  Ander-  reversing  39  N.  J.  Eq.  365. 

son  V.  Railroad  Co.  2  Woods,  628  ;  Carter  An  exception  to  this  rule  has  been  made 

r.  New  Orleans,   19    Fed.   Rep.  659.     See  where  the  receiver  is   appointed   under   a 

Jones    on    Corp.    Bonds    and    Mortgages,  statute  which  vests  the  title  to  the  property 

§§  392-397.  in  him.     Miller  v.  Mackenzie,  29  N.  J.  Eq. 

^  Glide  V.  Dwyer,  83   Cal.  477,  23   Pac.  291. 

Rep.    706;    Robbins   v.  Chicago,   4    Wall.  ">  Story   Eq.   PI.   §§  201,  209;   Wood  v. 

6.57  ;  Castle  v.  Noyes,  14  N.  Y.  329.  Williams,  4  Madd,  186;  Hichens  v.  Kelly, 

3  Robinson  v.  Ala.  &  G.   Manuf.  Co.  48  2  Sm.  &  G.  264  ;  Martin  v.  McReyiiolds,  6 

Fed.  Rep.  12.  Mich.   70;    Hambrick  v.  Russell,    86    Ala. 

*  Garton  i;.  Bank,  34  Mich.  279;  Michi-  199,  5  So.  Kep.  298. 

313 


§§  1386,  1387.]  OF   PARTIES   PLAINTIFF. 

ties  and  do  not  appear,^  especially  if  the  mortgage  trustee  refuses 
to  bring  the  action,^  or  has  acquired  an  adverse  interest.-^  This  is 
in  accordance  with  the  equitable  principles  already  stated,  and 
adopted  in  the  several  codes,  that  one  or  more  of  many  persons 
having  a  common  interest,  or  of  persons  so  numerous  as  to  render 
it  impracticable  to  bring  them  all  before  the  court,  may  sue  in  be- 
half of  the  whole. 

A  bondholder  may  also  intervene  in  a  foreclosure  suit  brought 
by  the  trustee  of  the  mortgage  or  deed  of  trust,  for  the  protection 
of  his  interests,  when  it  is  shown  that  the  trustee  is  not  acting  in 
good  faith,  and  that  the  litigation  is  being  conducted  upon  a  false 
and  fraudulent  basis,  prejudicial  to  the  bondholder's  interests.^ 

If  in  such  case  a  master  be  appointed  with  instructions  to  report 
the  names  of  the  Hen-holders,  and  the  amount  due  each,  those  who 
appear  before  the  master  and  prove  their  claims  are  as  much  bound 
by  a  judgment  or  order  affecting  the  subject-matter  of  the  suit  as 
if  they  had  been  formally  made  parties.^ 

If  such  other  bondholders  intervene,  they  are  considered  parties 
plaintiff  in  determining  the  jurisdiction  of  the  court  as  affected  by 
citizenship.^ 

1383.  Trustee  for  creditors.  —  Another  exception  to  the  gen- 
eral rule  is  made  in  the  case  of  a  trustee  of  a  fund  for  the  benefit 
of  creditors,  who  may  generally  sue  without  bringing  the  creditors 
before  the  court.'^  In  many  cases  it  would  be  impossible  to  make  all 
the  creditors  parties,  as  where  they  are  not  designated  except  as  a 
person's  creditors. 

1387.  Upon  the  death  of  the  mortgagee,^  or  of  a  mortgage 

1  Mason  v.  York  &  Cumberland  R.  R.  ^  Mangels  v.  Donau  Brewing  Co.  53  Fed. 
Co.  52  Me.  82  ;  Coe  v.  Beckwith,  10  Abb.    Kep.  513. 

Pr.  296;  Reid  y.  Evergreens,  21  How.  Pr.  •?  Morley     v.    Morley,    25     Beav.     253; 

319.     See  Blair  v.  Shelby  Co.  Agr.  Soc.  28  Knight  v.  Pocock,  24  Beav.  436  ;  Thomas 

Ind.   175;    Bardstown   &  Louisville  R.  R.  u.  Dunning,  5  De  G.  &  S.  618;  Christie  v. 

Co.  V.  Metcalfe,  4  Mete.  199,  81    Am.  Dec.  Herrick,  1  Barb.  Ch.  254;  Moulton  v.  Has- 

541;    Lambertville   Nat.    Bank   v.    Bag  &  kell  (Minn.),  52  N.  W.  Rep.  960. 

Paper  Co.  (N.  J.)  15  Atl.  Rep.  388.  ^  Woodruff  v.  Mutschler,  34  N.  J.   Eq. 

2  Davies  v.  N.  Y.  Concert  Co.  41  Hun,  33,  and  reporter's  note;  Citizens'  Nat.  Bank 
492.  V.  Dayton,  116  HI.  257. 

3  Webb  V.  Vt.  Cent.  R.  R.  Co.  20  Blatchf.  It  is  provided  by  statute  in  several  States 
218;  Henry  v.  Travellers'  Ins.  Co.  16  Colo,  that  upon  the  death  of  a  holder  of  a  mort- 
179,  26  Pac.  Rep.  318.  gage  without  having  foreclosed  the  equity 

*  Henry  v.  Travellers'  Ins.  Co.  16  Colo,  of  redemption,   the   mortgage  is   personal 

179,  26  Pac.  Rep.  318;    Grain  v.  Aldrich,  assets  in  the  hands  of  his  executor  or  ad- 

38  Cal.  514 ;  Galveston  Railroad  Co.  v.  Cow-  ministrator  ;  as  in  Maine,  Maryland,  Michi- 

drey,  11  Wall.  459.  gan,  Oliio,  Vermont,  and  Wisconsin. 

^  Carpenter  v.   Canal   Co.  35  Ohio  St. 
307. 

314 


WHO   ARE   PROPER   PARTIES.  [§  1388. 

trustee,  the  right  of  action  upon  the  mortgage  securities  is  in  his 
executor  or  administrator,  and  not  in  the  heir  of  the  mortgngee.^ 
The  hind  is  regarded  as  merely  a  security  for  the  money,  and  not 
as  real  estate  absolately  vested  in  the  mortgagee,  and  which  upon 
his  death  goes  to  his  heir,  although  this  was  the  view  formerly 
taken.2  fjjg  entry  of  the  mortgagee  after  forfeiture  does  not  make 
the  mortgaged  property  his  real  estate.  Until  foreclosure  is  com- 
plete the  land  belongs  to  the  mortgagor.  Neither  does  the  absence 
of  any  personal  obligation  by  bond,  note,  or  covenant  for  the  debt 
affect  the  right  of  the  personal  representative  to  collect  the  money 
due  by  the  mortgage.  The  heir  of  the  mortgagee  holds  the  legal 
title  in  trust  for  the  personal  representative. 

Of  course  the  mortgagee  may,  by  his  will,  settlement,  or  other- 
wise, provide  that  the  mortgage  security  shall  go  to  his  heir  as  de- 
visee ;  and  then  the  right  of  the  heir  to  sue  rests  upon  the  authority 
so  given.  One  to  whom  a  specific  mortgage  is  bequeathed  for  life 
may  maintain  a  bill  to  foreclose  it,  although  there  be  a  further  be- 
quest over  to  another  of  the  remainder  after  the  death  of  the  first 
taker.3  Such  immediate  legatee  is  entitled  to  the  possession  of  the 
securities,  and  as  well  to  the  possession  of  the  proceeds  of  the  same 
upon  collection.  It  is  necessary  that  such  holder  of  securities 
should  have  the  authority  to  convert  them  into  money  in  order  to 
obtain  the  income  and  protect  the  property  from  loss.^ 

A  mortgage  cannot  be  foreclosed  in  the  name  of  the  mortgagee 
after  his  decease,  by  direction  of  a  devisee  or  legatee  ;  but  the  lat- 
ter may  have  a  new  foreclosure  in  his  own  name.^ 

If,  upon  final  settlement  of  the  estate,  a  mortgage  be  transferred 
to  a  guardian  of  certain  minor  heirs  of  the  deceased  mortgagee,  an 
action  upon  it  may  be  maintained  by  such  guardian.'' 

Upon  the  final  settlement  of  the  mortgagee's  estate,  if  the  admin- 
istrator hands  over  to  the  heirs  certain  mortgages  which,  being 
deemed  of  little  value,  had  never  been  included  in  the  administra- 
tor's account,  or  in  the  order  of  distribution,  the  heirs  may,  as  the 
equitable  owners,  enforce  them  in  their  own  name.'^ 

1388.  The  personal  representative  of  the  mortgagee  upon  the 
death  of  the  latter  is  the  proper  party  to  bring  an  action  to  fore- 

1  Lambertville  Nat.  Bank  v.  Bag  &  Paper    See  Sargent  v.  Baldwin,  60  Vt.  17,  13  Atl. 
Co.  (N.J.)  1.5   Atl.  Kcp.  388;  De  Peyster    Eep.  854. 

V.  Ferrers,  11  Paige,  13.  *   Sntplien  i-.  Ellis,  3.5  Mich.  446. 

2  St.  John  j;.  Grabham  (11  Car.  1),  cited  in  &  White  v.  Secor,  58  Iowa,  533, 12  N.  W. 
Smith  V.  Smoult,    1   Ch.   Cas.  88;    Noy  v.    Rep.  586. 

Ellis,  2  Ch.  Cas.  220.  ^  Walter  v.  Wala,  10  Neb.  123. 

»  Proctor    V.   Ilobinson,    35    Mich.    284.        ''  Stanley  v.  Mather,  31  Fed.  Rep.  860. 

315 


§  1389.]  OF   PARTIES  PLAINTIFF. 

close  the  mortgage,  this  being  personal  assets.  The  administrator 
need  not  join  the  heirs  with  him  in  the  proceeding.^  The  heirs 
cannot  maintain  the  bill  ;  nor  can  the  devisee  or  legatee.^  For- 
merly it  was  held  that  the  heirs  should  be  joined,  because,  if  the 
mortgagor  should  redeem,  there  would  be  no  one  before  the  court 
by  whom  an  effectual  conveyance  of  the  .legal  estate  could  be  made.^ 
But  in  this  country  the  heir  has  been  held  a  necessary  party  in  only 
two  or  three  States,^  All  the  administrators  or  executors  who  have 
qualified  should  join  in  the  suit,^  and  proper  proof  of  appointment 
should  be  made.  It  is  no  defence  to  a  suit  by  executors  to  foreclose 
a  mortp-ac-e  that  their  testator  made  a  later  will  than  that  under 
which  they  are  acting,  which  has  not  been  offered  or  admitted  to 
probate." 

When,  however,  the  heir  of  the  mortgagee  is  in  possession  of  the 
premises,  the  personal  i-epresentative  should  make  him  a  party, 
either  plaintiff  or  defendant.^  When  the  administrator  has  ac- 
quired title  through  foreclosure,  he  can  bring  ejectment  for  the 
land.9 

In  case  no  administration  has  been  taken  upon  the  mortgagee's 
estate,  there  being  no  debts  of  the  estate,  his  heir  may  maintain  an 
action  to  foreclose  the  mortgage. ^*^ 

1389.  A  foreign  executor  or  administrator  must  generally 
receive  appointment  from  the  proper  court  in  the  State  where  the 
mortgaged  land  is  situate,  before  he  will  be  allowed  to  prosecute  a 
suit  to  foreclose  the  mortgage.^^  The  legal  objection  to  allowing 
a  foreign  executor  or  administrator  to  prosecute  such  suit  is  that 

1  Dayton    v.    Dayton,    7    Bradw.    136;  481.      Until  the  later  will  is  proven,  and 

Plummer  v.  Doughty,  78  Me.  341.  letters   testamentary    issued    upon    it,  the 

-  Kinna  v.  Smith,  3  N.  J.  Eq.  14  ;  Wood-  power  of  the  executor,   under   the  letters 

ruff  V.  Muischler,  34  N.  J.  Eq.  33;    Buck  testamentary  actually  issued,  to   take  and 

V.  Fischer,  2  Colo.  182  ;    Roath  v.  Smith,  5  collect    the   assets,   remains   undiminished. 

Conn.  133;  Ratliff  v.  Davis,  38  Miss.  107  ;  Annin  v.  Vandoren,  14  N.  J.  Eq.  135,  146; 

Grattan  ;;.  Wiggins,  23  Cal.  16.     For  an  Quidort  y.  Pergeaux,  18  N.  J.  Eq.  472,  476; 

exceptional  case,  see  Wright  v.  Kobiuson,  Waters  v.  Stickney,  12  Allen,  1,15. 
94  Ala.  479,  10  So.  Rep.  319.  ^  Huggins  v.  Hall,  10  Ala.  283  ;  Osborne 

3  Powell  IVIortg.  970;  Wood  v.  Williams,  v.  Tunis,  25  N.  J.  L.  633. 

4    Madd.    185;     Worthington    v.    Lee,    2        »  Kunzie  r.  Wixora,  39  Mich.  384. 
Bland  Ch.  678.  w  Pool  v.   Davis    (Ind.),  34  N.  E.   Rep. 

4  Mclver   v.   Cherry,     8    Humph.    713;     1130. 

Atchison  v.  Surguine,  1  Yerg.  400 ;  Ether-  ^  Trecothick  v.  Austin,  4  ^Mason,  16,  33  ; 

idge  V.  Vernoy,  71  N.  C.  184,  187.  Williams  v.  Storrs,  6  Johns.  Ch.  353,    10 

5  1  Daniell  Ch.  Pr.  p.  226;  Davies  v.  Am.  Dec.  340;  Brown  v.  Brown,  1  Barb. 
Williams,  1  Sim.  5.  Ch.  189;  Porter  v.  Trail,  .30  N.  J.  Eq.  106. 

6  Ralphs  V.  Hensler  (Cal.),  32  Pac.  Rep.  See  Woodruff  v.  Mutschler,  34  N.  J.  Eq. 
243.  33,  note ;  Dial  v.  Gary,  24  S.  C.  572. 

"  Moss  V.  Lane  (N.  J.  Eq.),  23  Atl.  Rep. 

316 


WHO   ARE   PROPER   PARTIES.  [§  1390. 

better  protection  is  afforded  to  creditors  of  the  deceased,  resident  in 
the  State  where  the  property  is  situated,  by  requiring  an  appoint- 
ment under  the  laws  of  that  State,  and  thereby  making  the  rep- 
resentative of  the  deceased  liable  to  account  in  that  State  for  the 
assets  there  collected  by  him;  so  that  creditors  and  others  in  such 
State  are  not  obliged  to  go  to  a  foreign  jurisdiction  to  prosecute 
their  claims.^ 

Another  practical  advantage  of  the  requirement  is,  that  by  such 
appointment  in  the  State  where  the  property  is  situated  evidence 
ot  the  authority  of  the  personal  representative  to  act  in  place  of 
the  deceased  mortgagee,  and  to  make  discharge  of  the  mortgage, 
is  to  be  found  in  that  State  ;  and  this  alone  is  suflficient  ground  for 
requiring  such  appointment  in  every  case,  even  when  voluntary 
payment  of  the  mortgage  is  to  be  made ;  or  when  an  assignee,  resi- 
dent in  the  State,  claims  payment  by  virtue  of  an  assignment  to 
him  by  a  foreign  executor  or  administrator ;  for  although  such  as- 
signee can  prosecute  an  action  to  foreclose  the  mortgage,^  the  record 
title  to  the  estate  made  through  such  foreclosure  is  objectionable, 
inasmuch  as  there  is  no  evidence  in  the  State  of  the  authority  by 
which  the  foreign  executor  or  administrator  made  the  assignment.^ 

Objection  that  the  foreign  executor  or  administrator  has  no 
standing  in  court  to  enforce  the  mortgage  must  be  made  by  demur- 
rer or  answer,  or  it  will  be  deemed  to  have  been  waived.* 

In  a  State  where  a  foreign  executor  is  by  statute  allowed  to  sue 
like  any  other  non-resident,^  the  right  of  such  executor  to  main- 
tain an  action  on  securities  in  his  hands  is  sufficiently  shown  by 
the  production  of  letters  testamentary  issued  by  the  court  of  an- 
other State  having  general  jurisdiction  of  the  settlement  of  estates, 
although  the  testator  was  a  resident  of  still  another  State,  where 
he  died,  and  the  recitals  of  the  letters  only  show  that  he  had  prop- 
erty in  the  State,  but  not  in  the  county,  where  the  letters  were 
issued.^ 

1390.  Mortgage  to  executor.  —  A  mortgage  made  to  A.  B., 
"  acting  executor  of  the  estate  of  T.  T.,  deceased,"  is  prwid  facie 
the  private  property  of  A.  B.,  and  upon  his  decease  a  bill  to  fore- 
close it  should  be  brought  by  his  personal  representative ;   but  if 

1  Petersen    v.  Chemical  Bank,  32  N.  Y.        3  See  §  797. 

21,  43,  29  How.  Pr.  240,  88  Am.  Dec.  298.  ■*  McBride  v.  Farmers'  Bank  of  Salem, 

2  Petersen  v.  Chemical  Bank,  32  N.  Y.  26  N.  Y.  450,  457 ;  Zabriskie  v.  Smith,  13 
21,  43,  29  How.  Pr.  340,  88  Am.  Dec.  298.    N.  Y.  322,  64  Am.  Dec.  551. 

And  see  Smith  ?;.  Webb,  1  Barb.  230,  that  a        ^  As  in  Nebraska:  Comp.   St.    1885,  p. 

legatee  under  a  will  proved  in  another  State    324,  ch.  24. 

may  sue.  <^  Cheney  v.  Stone,  29  Fed.  Rep.  885. 

317 


§§  1391,  1392.]  OF   PARTIES   PLAINTIFF. 

it  be  alleged  in  the  bill  and  shown  that  the  mortgage  is  part  of 
the  assets  of  the  estate  of  T.  T.,  an  administrator  with  the  will 
annexed  of  his  estate  may  foreclose  it.^  Tlie  personal  representa- 
tives of  A.  B.  should  be  made  parties  to  the  suit,  because  primd 
facie  the  security  vests  in  them.^ 

1391.  When  one  person  holds  two  mortgages  upon  the  same 
premises,  he  is  not  allowed  to  bring  separate  foreclosure  suits.^  If 
they  are  of  different  dates  and  secure  different  debts,  when  the 
decree  is  for  a  sale  of  the  property  it  should  direct  the  payment  of 
the  first  mortgage  out  of  the  proceeds  of  sale,  and  that  the  residue 
be  paid  into  court  for  the  benefit  of  subsequent  incumbrancers.*  In 
case  of  a  strict  foreclosure,  one  decree  is  made  embracing  both  mort- 
gage debts,  instead  of  two  decrees  each  limiting  a  time  of  redemp- 
tion for  each  mortgage.^  The  holder  of  the  two  mortgages  may 
foreclose  them  in  one  suit,  although  they  were  given  by  different 
persons,  if  made  to  secure  the  same  debt.^  Where  there  are  sev- 
eral simultaneous  mortgages  of  the  same  property,  though  they  se- 
cure different  debts,  one  not  entitled  to  a  preference  over  the  others 
cannot  be  foreclosed  alone.  The  complainant  should  ask  the  other 
mortgagees  to  join  with  him  in  foreclosing  all  the  mortgages,  and 
on  their  refusal  so  to  do  should  make  them  defendants." 

1392.  A  mortgage  executed  to  persons  in  an  official  ca- 
pacity may  be  foreclosed  by  their  successors  in  the  office  in  their 
own  names  as  equitable  assignees  of  the  security,  as  in  case  of  a 
mortgage  given  to  the  receivers  of  an  insolvent  corporation.  The 
successor  is  in  such  case  an  equitable  assignee,  and  though  he  could 
not  sue  in  his  own  name  at  law  he  may  do  so  in  equity.^ 

If  the  mortgagee  becomes  bankrupt,  his  assignee  may  foreclose 
the  mortgage  without  joining  him  as  a  party.  Though  there  be  a 
possibility  that  there  may  be  property  more  than  enough  to  pay 
the  creditors,  the  presumption  from  the  adjudication  is  that  there 
will  not  be  ;  and  therefore  he  is  not  regarded  as  having  any  in- 
terest sufficient  to  entitle  him  to  be  made  a  party.  And  such 
would  be  the  case  also  where  a    corporation    holding    a  mortgage 

1  Peck  V.  Mallams,  10  N.  Y.  509 ;  People  *  Kellogg  v.  Babcock,  I  Ch.  Dee.  (N.  Y.) 
V.  Keyser,  28  N.  Y.  226,  84  Am.  Dec.  338 ;    47. 

Renaud  v.  Conselyea,  4  Abb.  Pr.  280,  af-  ^  phelps  v.  Ellsworth,  3  Day,  397. 

firmed  5  Abb.  Pr.  346.  ^  McGowan  v.  Branch  Bank  at  Mobile, 

2  Peck  V.  Mallams,  10  N.  Y.  509.  7  Ala.  823. 

3  Roosevelt  v.  Ellithorp,  10  Paige,  415  ;  "  Potter  v.  Crandall,  Clarke  (N.  Y.), 
Newman  v.  Ogden,  6  Ch.  Dec.  (N.  Y.)  40;  119. 

Kellogg  V.  Babcock,  1  Ch.  Dec.  (N.  Y.)  47  ;        «  Iglehart  v.  Bierce,  36  111.  133. 
Fitzhugh  V.  McPherson,  3  Gill,  408. 

318 


WHO   ARE   THE   NECESSARY    OR   PROPER   PARTIES.       [§§  1393,  1394. 

has  been  declared  insolvent,  and  its  property  placed  in  the  hands  of 
a  receiver.^ 

1393.  A  wife  owning  a  mortgage  as  her  separate  property 
cannot  join  her  husband  as  a  co-plaintiff  to  foreclose  it.  Objec- 
tion, however,  to  the  joining  of  the  husband  should  be  taken  by 
demurrer,  and  cannot  be  insisted  upon  at  the  hearing.^  When  the 
note  and  mortgage  were  given  to  a  husband  and  wife  as  security  for 
money  loaned  by  the  wife,  upon  the  death  of  the  husband  the  wife 
was  held  to  be  the  proper  party  to  sue  in  her  own  name,  on  either 
of  two  grounds,  — as  surviving  mortgagee,  or  because  the  mortgage 
concerned  her  separate  estate.^ 

In  a  suit  by  a  married  woman  to  foreclose  a  mortgage  payable 
to  her,  where  the  bonds  and  mortgage  are  in  possession  of  her  hus- 
band, who  is  living  apart  from  her  and  beyond  the  jurisdiction  of 
the  court,  the  husband  should  be  made  a  party  to  the  suit ;  but  if 
there  have  been  laches  and  delay  on  his  part,  he  should  not  be  ah 
lowed  to  come  in  and  defend  except  upon  terms.^ 

But  a  married  woman,  not  relieved  of  the  disabilities  of  cover- 
ture, cannot  sue  alone  to  foreclose  a  mortgage  given  to  her.^ 


PART  ir. 

OF    PARTIES    DEFENDAKT. 

Who  are  the  Necessary  or  Proper  Parties. 

1394.  General  principles.  —  In  respect  to  the  defendants  in 
foreclosure  suits,  they  are  either  necessary  or  pi-oper  parties.^  A 
necessary  party  is  one  whose  presence  before  the  court  is  indis- 
pensable to  the  rendering  of  a  judgment  which  shall  have  any 
effect  upon  the  property ;  without  whom  the  court  might  prop- 
erly refuse  to  proceed,  because  its  decree  would  be  practically 
nugatory.  The  person  who  in  this  sense  is  a  necessary  party  de- 
fendant is  the  owner  of  the  equity  of  redemption  ;  but  the  own- 
ership of  the  land  subject  to  the  mortgage  may  be  distributed 
among  several  persons,  one  of  whom  is  no  more  necessary  to  the 

1  Iglehart  u.  Bierce,  36  111.  133.  mentioned  provide  that  "any  person  may 
■■^  Bartlett  v.  Boyd,  34  Vt.  256.  be  made  a  defendant  who  has  or  chiims  au 
3  Shockley  v.  Shockley,  20  Ind.  108.  interest  in  the  controversy  adverse  to  tiie 
*  Ruckman  v.  Stephens,  11  Fed.  Rep.  plaintiff,  or  who  is  a  necessary  party  to  a 
"93.  complete  determination  or  settlement  of  the 
^  Bynum  v.  Frederick,  81  Ala.  489,  8  So.  questions  involved  therein."  See  Pom- 
Rep.  198.  croy's  Remedies,  §  271. 
8  The  codes  of  the  several  States  before 

319 


§  1394.]  OF   PARTIES   DEFENDANT. 

rendering  of  an  effectual  judgment  than  another.  Moreover  the 
equity  of  redemption  may  have  been  conveyed  again  and  more 
than  once  in  mortgage,  and  the  person  who  holds  the  title  subject 
to  the  mortgages  may  have  an  interest  which  is  in  fact  of  no 
value,  while  tlie  holders  of  the  subsequent  mortgages  have  valuable 
interests ;  yet  according  to  the  cases  the  owner  of  the  unconditional 
title  which  is  of  no  value  is  a  necessary  party,  and  the  subsequent 
mortgagees  are  only  proper  parties.  It  is  not,  however,  the  value 
of  the  interest  held  by  any  one  which  in  any  way  determines 
whether  he  is  a  necessary  party  or  not ;  for  although  the  interest  of 
the  owner  of  the  equity  may  be  valueless,  yet  a  decree  of  foreclos- 
ure and  sale  is  effectual  in  cutting  off  that  interest,  and  in  transfer- 
ring the  title  subject  to  the  rights  of  subsequent  incumbrancers,  if 
they  have  not  been  made  parties.  The  decree  is  at  any  rate  effec- 
tual in  stopping  the  further  transfer  or  incumbrance  of  the  title, 
and  this  is  doubtless  the  reason  why  the  owner  of  the  equity  of  re- 
demption is  regarded  as  a  necessary  party. 

In  one  sense  every  person  who  has  acquired  any  interest  in  the 
property  subsequent  to  the  mortgage  is  a  necessary  party  to  the 
suit  for  foreclosure,  whether  that  interest  be  by  way  of  a  mortgage 
or  judgment  lien,  an  inchoate  right  of  tenancy  in  dower  or  curtesy, 
or  an  unconditional  estate  in  fee  ;  because,  in  order  to  make  the 
foreclosure  complete,  and  to  transfer  a  perfect  title  by  the  sale,  it  is 
necessary  that  the  holder  of  every  such  right  or  interest  should  be 
brought  before  the  court.  A  party  may  be  necessary  in  this  sense, 
although  this  term  has  generally  been  used  only  to  designate  the 
present  owner  of  the  property,  without  whom  the  general  owner- 
ship of  the  property  cannot  be  transferred  by  a  sale  under  the  de- 
cree. It  is  doubtless  for  this  reason  that  there  is  much  confusion  in 
the  cases  as  to  the  persons  who  are  necessary  parties  to  the  suit. 
As  a  practical  matter,  however,  the  distinction  between  necessary 
and  proper  parties  is  not  of  much  consequence  ;  for  the  suit,  though 
effectual  in  cutting  off  the  estate  or  interest  of  the  parties  to  it,  is 
generally  ineffectual  as  a  foreclosure,  unless  every  interest  subse- 
quent to  the  mortgage  is  cut  off  by  the  decree  and  sale  under  it  ; 
for  if  a  stranger  purchases,  he  may  decline  to  take  the  title  if  any 
lien  or  right  is  left  outstanding;  and  if  the  mortgagee  himself  buys, 
he  only  subjects  himself  in  such  case  to  the  expense  of  another  suit, 
to  get  rid  of  the  rights  that  others  still  have  in  the  property. 

To  obtain  a  judgment  for  any  deficiency  there  may  be  after  the 
sale,  the  debtor  and  any  other  person  who  may  have  assumed  the 
debt  are  necessary  parties  ;  but  as  the  primary  object  of  the  suit 
320 


WHO   ARE    THE   NECESSARY    OR   PROPER    PARTIES.  [§  1395. 

is  to  divest  the  title  of  the  holder  of  the.  equity  of  redemption,  and 
of  others  interested  in  it,  and  to  transfer  this  by  sale  to  a  pur- 
chasei',  the  fact  that  one  is  personally  liable  for  the  debt  makes 
him  a  proper  party,  but  not,  in  the  general  use  of  the  term,  a  ne- 
cessary one. 

1395.  "When  a  party  in  interest,  other  than  the  owner  of 
the  equity  of  redemption,  is  not  made  a  party  to  the  bill,  the 
foreclosure  is  not  generally  for  this  reason  wholly  void.  It  is  effec- 
tual as  against  those  persons  interested  in  the  equity  who  are  made 
parties.  The  sale  vests  the  estate  in  the  purchaser,  subject  to  re- 
demption by  the  person  interested  in  it  who  was  not  made  a  party 
to  the  proceedings. 1  His  only  remedy,  however,  is  to  redeem.  He 
cannot  maintain  ejectment  against  the  purchaser.  He  cannot  have 
the  sale  set  aside  by  intervening  by  petition  in  the  foreclosure  suit. 
His  only  right  is  the  right  of  redemption.^  The  sale,  though  it  fails 
to  be  effectual  in  every  other  respect,  operates  as  an  assignment  of 
the  mortgage  and  all  the  mortgagee's  rights  to  the  purchaser,  who 
may  proceed  de  novo  to  foreclose.^  If  in  such  case  the  prior  mort- 
gagee himself  purchases  at  the  sale,  he  becomes  merely  a  mortgagee 
in  possession.* 


1  Story's  Eq.  Pleadings,  §  193.  Indiana  : 
Matcalm  v.  Smith,  6  McLean,  416;  Maitlu 
V.  Noble,  29  Ind.  216.  Illinois:  Kelgour  v. 
Wood,  64  111.  345 ;  Ohling  v.  Luitjens,  32 
111.  23;  Cutter  i;.  Joues,  52  111.  84  ;  Hodgen 
V.  Glittery,  58  111.  431  ;  Robbins  v.  Arnold, 
11  111.  App.  434;  Strang  v.  Allen,  44  111. 
428;  Dimlap  v.  Wilson,  32  111.  517,;  Brad- 
ley V.  Snyder,  14  111.  263,  58  Am.  Dec.  564  ; 
Richardson  v.  Hadsall,  106  111.  476.  Mis- 
sissippi :  Georgia  Pacitic  R.  R.  Co.  y.  Walker, 
61  Miss.  481.  Ohio:  Frische  v.  Kramer,  16 
Ohio,  125,47  Am.  Dec.  368.  Texas:  Hall 
i;.  Hall,  1 1  Texas,  526  ;  Webb  v.  Maxan,  1 1 
Tex.  678,  686.  Wisconsin :  Tallman  v.  Ely, 
6  Wis.  244  ;  Hodson  v.  Treat,  7  Wis.  263. 
Minnesota  :  Banning  v.  Sabin,45  Minn.  431, 
48  N.  \V.  Rep.  8;  Martin  v.  Fridley,  23 
Minn.  13.  Arkansas:  Turman  v.  Bell,  54 
Ark.  273,  15  S.  W.  Hep.  886.  Iowa:  Por- 
ter V.  Kilgore,  32  Iowa,  379 ;  Douglass  v. 
Bishop,  27  Iowa,  214;  Veach  v.  Schaup,  3 
Iowa,  194;  Spnrgin  v.  Adamson,  62  Iowa, 
661,  18  N.  W.  Rep.  293.  Missouri :  Valen- 
tine V.  Havener,  20  Mo.  133.  New  Jersey  : 
Bnindred  i-.  Walker,  12  N.  J.  Eq.  140; 
McCall  V.  Yard,  11  N.  J.  Eq.  58,  9  N.  J.  Va\. 
358.  North  Carolina:  Vanhorn  v.  Duck- 
VOL.  II.  21 


worth,  7  lied.  Eq.  261.     California :  Haffley 
V.  Maier,  13  Cal.  13. 

-  Wisconsin :  Person  v,  Merrick,  5  Wis. 
231  ;  Farwell  v.  Murphy,  2  Wis.  533  ;  Green 
V.  Dixon,  9  Wis.  532.  Connecticut:  Good- 
man V.  White, 26 Conn. 317.  Maine:  Thomp- 
son V.  Chandler,  7  Me.  377.  Illinois : 
Bradley  v.  Snyder,  14  111.  263,  58  Am.  Dec. 
564.  New  York:  Benedict  r.  Gilman,  4 
Paige,  58  ;  Peabody  v.  Roberts,  47  Barb.  91  ; 
Braiuard  v.  Cooper,  10  N.  Y.  356.  New 
Jersey :  McCall  v.  Yard,  9  N.  J.  Eq.  358. 
Iowa:  Redfield  v.  Hart,  12  Iowa,  355; 
Knowles  v.  Rablin,  20  Iowa,  101  ;  Heim- 
street  v.  Winnie,  10  Iowa,  430.  Kentucky: 
Cooper  V.  Martin,  1  Dana,  23.  North  Caro- 
lina: Isler  V.  Koonce,  83  N.  C.  55;  Hin- 
son  V.  Adrian,  86  N.  C.  61.  South  Carolina  : 
Douthit  V.  Hipp,  23  S.  C.  205;  Adger  v. 
Pringle,  11  S.  C.  527,  545. 

3  Peabody  v.  Roberts,  47  Barb.  91 ;  An- 
son V.  Anson,  20  Iowa,  55,  89  Am.  Dec. 
514;  Ten  Eyck  v.  Casad,  15  Iowa,  524; 
Byers  v.  Brannon  (Tex.),  19  S.  W.  Rep. 
1091  ;  Foster  v.  Johnson,  44  Minn.  290,  46 
N.  W.  Rej..  350. 

4  Walsh  V.  Rutgers  F.  Ins.  Co.  13  Abb. 
Pr.  33 ;  Vanderkemp  v.  Shelton,  1 1  Paige, 

321 


§  1395.] 


OF  PARTIES  DEFENDANT. 


There  are,  however,  some  cases  which  hold  that  where  a  junior 
mortgagee  has  not  been  made  a  part}^  to  a  suit  to  foreclose  a  prior 
mortgjige,  and  the  prior  mortgagee  has  become  the  purchaser  at  the 
foreclosure  sale,  such  junior  mortgagee  may  maintain  a  suit  to  fore- 
close his  mortgage,  and  that  his  remedy  is  not  limited  to  an  action 
to  redeem.  The  utmost  effect  of  the  foreclosure  and  sale  was  to 
transfer  the  equity  of  redemption  from  the  mortgagor  to  the  plain- 
tiff in  the  foreclosure.  But  in  such  case  the  prior  mortgagee  in 
possession  is  entitled  to  have  a  sufficient  portion  of  the  proceeds  of 
the  sale  applied  to  the  payment  of  his  debt,  though  no  offer  to  re- 
deem the  premises  or  pay  the  first  mortgage  is  necessary.  This 
latter  point,  of  course,  proceeds  upon  the  theory  that,  as  to  the 
holder  of  the  second  mortgage,  the  first  mortgage  is  still  subsisting 
and  un foreclosed, 1 

It  is  in  many  cases  a  matter  of  much  expense  and  inconvenience 
to  join  as  parties  all  the  subsequent  incumbrancers,  but  it  is  much 
more  expensive  and  inconvenient  to  omit  any.  A  purchaser  will 
hardly  take  an  estate  which  may  be  redeemed,  and  thus  incur  the 
liability  of  a  suit  to  redeem,  and  of  being  called  upon  to  account,^ 
Of  course  it  is  the  right  of  the  plaintiff  to  bring  all  subsequent 
parties  in  interest  before  the  court,  but  as  the  law  now  stands  it  is 


28;  Jordan  v.  Sayre,  24  Fla.  1,  3  So.  Kep. 
329. 

1  Bij,^elow  V.  Davol,  16  N.  Y.  Supp.  646, 
relying  upon  Walsh  v.  Rutgers  F.  Ins.  Co. 
13  Al)b.  Pr.  33,  citing  Miner  v.  Beekman, 
50  N.  Y.  337  ;  Braiuard  v.  Cooper,  10  N.  Y. 
356,  and  distinguishing  Salmon  v.  Gedne^', 
75  N.  Y.  479 ;  Salmon  v.  Allen,  1 1  Hun,  29, 
and  Ross  v.  Boardman,  22  Ilun,  527. 

2  In  tlie  earlier  cases  in  England  the  dis- 
tinction between  parties  indispensable  to  the 
suit,  and  proper  parties  to  it,  was  not  always 
taken.  In  Bi>hop  of  Winchester  v.  Beavor, 
3  Ves.  Jun.  314,  it  was  objected  by  the  sec- 
ond mortgagees,  who  were  parties  to  a  suit 
for  the  foreclosure  of  a  first  mortgage,  that 
a  judgment  creditor  was  not  joined.  At 
first  tiie  Master  of  the  Rolls,  afterwards 
Lord  Aivanley,  inclined  against  the  objec- 
tion, "stating  the  inconvenience  that  would 
arise  from  the  necessity  of  making  all  the 
judgment  creditors  of  the  mortgagor  par- 
ties." After  argument  he  said  :  "  The  usual 
and  common  practice,  almost  without  excep- 
tion, is  to  make  all  incumbrancers  parties. 
If  I  lay  down  that  it  is  absolutely  necessary, 
I  arm  a  man  with  a  shield  to  ward  off  a 

322 


foreclosure.  But  the  question  is,  whether  it 
is  not  proper  in  this  case.  I  think  it  would 
be  too  much  to  refuse  it.  Where  there  is 
no  affectation  of  delay,  that  I  can  see,  I  do 
not  think  the  general  point  so  clear  as  to 
determine  it  upon  this  case.  I  hope  the 
court  is  not  bound  to  insist  upon  all  incum- 
brancers being  parties;  but  I  am  perfectly 
satisfied  that  in  this  case  it  is  by  much  the 
least  evil  to  order  the  cause  to  stand  over 
till  this  single  incumbrancer  is  made  a 
party."  Mr.  Calvert,  in  his  Treatise  on  Par- 
ties, p.  196,  says:  "The  general  practice 
will  not  of  necessity  bind  a  mortgagee  who 
for  particular  reasons,  such  as  costs  and  the 
small  value  of  the  security,  desires  to  ex- 
clude from  the  record  particular  mortgagees. 
There  is  no  rule  to  the  effect  that  there 
shall  be  only  one  foreclosure  bill  of  the  same 
estate,  for  there  may,  according  to  the  ac- 
knowledged practice,  be  as  many  foreclos- 
ures as  there  are  mortgagees,  provided  the 
suits  are  filed  in  a  series  commencing  with 
the  last  mortgagee.  It  is  said  that  a  mort- 
gagor ought  not  to  be  liable  to  successive 
suits;  yet  he  will  be  if  the  suits  were  insti- 
tuted in  that  series." 


WHO   ARE   THE   NECESSARY   OR   PROPER   PARTIES.  [§  1396. 


not  his  absolute  duty  to  do  so;  or,  in  other  words,  the  court  will 
not  compel  the  phiintitf,  on  the  motion  of  any  other  paily,  to  bring 
in  those  who  have  subsequent  liens,  however  desirable  it  may  be  to 
make  a  final  settlement  of  the  rights  of  all  persons  interested  in 
the  property.  If  for  any  reason  a  party  in  interest  is  not  made  a 
party,  his  interest  may  be  foreclosed  in  a  subsequent  action.^ 

1396.  All  parties  in  interest  should  be  joined,  inasmuch  as  it 
is  true  that  the  proper  object  of  a  bill  in  equity  to  foreclose  a  mort- 
gage is  to  cut  off  all  rights  subsequent  to  the  mortgage.^  The 
riglits  of  any  one  so  interested  not  made  a  party  to  the  bill  are  not 
affected  by  the  decree  of  foreclosure  and  the  sale  under  it,  but  he 
may  redeem  as  before  the  sale.^  The  proceeding  is  not  in  rem  but 
in  perso7iam.  A  party  in  interest,  whose  application  to  be  made  a 
party  has  been  granted  only  upon  conditions  which  the  court  had 


1  Merriman  v.  Hyde,  9  Neb.  113,2  N.  W. 
Rep.  218. 

2  Clark  V.  Eeybiirn,  8  Wall.  318;  Cald- 
well V.  Taggiut,  4  Pet.  190.  New  York: 
Bloomer  v.  Sturges,  58  N.  Y.  168;  Kay 
V.  Whittaker,  44  N.  Y.  56.5;  M'Gown  v. 
Yerks,  6  Johns.  Ch.  450 ;  Ensworth  v. 
Lambert,  4  Johns  Ch.  605  ;  Vanderkemp 
V.  Shelton,  11  Pciige,  28;  Haines  v.  Beach, 
3  Johns.  Ch.  459.  Iowa:  Chase  i;.  Abbott, 
20  Iowa,  154;  Wright  v.  Howell,  35  Iowa, 
288.  Indiana:  Gaiucs  v.  Walker,  16  Ind. 
361 ;  Proctor  v.  Baker,  15  Ind.  178;  Martin 
V.  Noble,  29  Ind.  216;  Holmes  v.  Bybee, 
34  lud.  262 ;  Hasselman  v.  McKernan,  50 
Ind.  441 ;  Coombs  v.  Carr,  55  Ind.  303  ; 
Wyman  v.  Russell,  4  Biss.  307 ;  Watts  v. 
Julian,  122  lud.  124,  23  N.  E.  Rep.  698. 
Alabama:  Jiidson  v.  Emanuel,  1  Ala.  598; 
Hunt  V.  Acre,  28  Ala.  580 ;  Boy  kin  i-.  Rain, 
28  Ala.  332,  65  Am.  Dec.  349 ;  Duval  v. 
McLoskey,  1  Ala.  708.  Wisconsin :  Arm- 
strong V.  Pratt,  2  Wis.  298 ;  Rowley  v. 
Williams,  5  Wis.  151 ;  Moore  v.  Cord,  14 
Wis.  213  ;  Stark  v-  Brown,  12  Wis.  572, 
78  Am.  Dec.  762.  Connecticut :  Smith  v. 
Chapman,  4  Conn.  344;  Swift  v.  Edson,  5 
Conn.  531  ;  Goodman  v.  White,  26  Conn. 
317,  322.  South  Carolina:  Manufacturing 
Co.  V.  Price,  4  S.  C.  338.  New  Jersey : 
McCall  V.  Yard,  11  N.  J.  Eq.  58.  Califor- 
nia: Hay  ward  v.  Stearns,  39  Cal.  58;  Hef- 
ner V.  Urton,  71  Cal.  479,  12  Pac.  Rep. 
486.  Oregon :  Besser  v.  Hawthorn,  3  Oreg. 
129;    Sellwood    v.    Gray,    11  Oreg.  534,  5 


Pac.  Rep.  196.  Florida:  Wilson  u.  Russ, 
17  Fla.  691.  Texas:  Ballard  v.  Carter,  71 
Tex.  161,  9  S.  W.  Rep.  92. 

3  Cockesy.  Sherman,  2  Freem.l3  (1676). 
Here  were  five  mortgages  of  the  same 
land.  The  fifth  mortgagee  bought  the  first 
three  mortgages,  and  then  foreclosed  with- 
out making  the  fourth  mortgagee  a  party. 
Lord  Chancellor  Finch  held  that  the  fourth 
mortgagee  had  an  equity  of  redemption. 
"  The  fourth  mortgagee  was  not  concluded 
bj'  this  decree,  beiug  never  made  a  party  to 
it;  and  although  there  be  a  great  mischief 
on  one  hand  that  a  mortgagee,  after  a  de- 
cree against  the  mortgagor  to  foreclose  him 
of  his  equity  of  redemption,  shall  never 
know  when  to  be  at  rest, — for  if  there  be 
any  other  incumbrances  he  is  still  liable  to 
an  account, —  yet  tlie  inconvenience  is  far 
greater  on  the  other  side;  for  if  a  mort- 
gagee, that  is  a  stranger  to  this  decree, 
should  be  concluded,  he  would  be  absolutely 
without  remedy  and  lose  his  whole  money, 
when  perhaps  a  decree  may  be  huddled  up 
purposely  to  cheat  him,  and  in  the  mean 
time  he  (being  paid  his  interest)  may  be 
lulled  asleep,  and  think  nothing  of  it; 
whereas,  on  the  other  hand,  there  is  no 
prejudice  but  being  liable  to  the  trouble  of 
an  account;  and  if  so  be  that  were  stated 
bona  fide  between  the  mortgagor  and  mort- 
gagee in  the  suit  wherein  the  decree  was 
obtained,  that  shall  be  no  more  ravelled 
into,  but  so  long  shall  stand  untouched." 

323 


§  1397.]  OF    PARTIES    DEFENDANT. 

no  right  to  impose,  and  with  which  he  refuses   to  comply,  is  not 
bound  by  the  judgment.^ 

One  made  a  defendant  to  a  foreclosure  suit,  whose  connection 
with  the  mortgage  or  with  the  equity  of  redemption  is  not  shown 
by  tlie  bill,  is  not  a  proper  party,  and  is  entitled,  so  far  as  he  is  con- 
cerned, to  have  the  bill  dismissed  with  costs.^ 

1397.  Trustees  and  beneficiaries.  —  The  trustee  in  a  deed  of 
trust  is  a  necessary  party  because  he  holds  the  legal  title.^ 

As  a  general  rule,  all  persons  beneficially  interested  in  the  equity 
of  redemption  should  be  made  parties  to  the  suit  as  well  as  the 
trustees  who  hold  the  legal  title,  Tiiey  have  an  interest  in  the  con- 
troversy adverse  to  tlie  plaintiff.'*  This  was  the  English  rule  until 
it  was  enacted  ^  that  the  trustees  may  represent  the  persons  bene- 
ficially interested,  so  that  the  latter  need  not  be  made  parties  to  the 
suit,  unless  the  court  in  its  discretion  orders  them  to  be  joined. 
Under  this  statute,  however,  it  seems  that  the  court  will  require  that 
the  cestuis  que  trust  be  made  parties  where  the  trustees  have  not 
complete  power  over  the  estate,  or  have  not  in  their  control  funds 
applicable  to  the  purpose  of  redemption.^  Under  this  general  rule, 
persons  having  a  vested  remainder  in  fee  in  the  equity  of  redemp- 
tion should  be  made  parties  to  the  bill,  though  the  trustee  is  made 
a  defendant ;  and  the  fact  that  the  trustee  executed  the  mortgage 
under  authority  of  the  court  does  not  excuse  omitting  them.'^ 

If  the  mortgage  and  notes  secured  were  executed  by  the  mortga- 
gor as  "trustee  "  without  any  declaration  of  the  trust,  and  it  is  not 
alleged  that  he  was  acting  in  the  matter  as  a  trustee  for  any  one, 
the  word  "trustee"  is  regarded  merely  as  a  descriptio  personce,  and 
no  cestui  que  trust  need  be  made  a  party .^ 

If  there  be  a  subsequent  trust  deed  of  the  property  in  the  nature 

1  Coleman  v.  Hunt,  77  Wis.  263,  45  Williamson  v.  Field,  2  Sandf.  Ch.  533 ; 
N.  W.  Rep.  10S5.  Kiug  v.  McVickar,  3  Sandf.  Ch.  192  ;  Leg- 

2  Havens  v.  Jones,  45  Mich.  253,  7  gett  v.  Mut.  Life  Ins.  Co.  of  N.  Y.  64  Barb. 
N.  W.  Rep.  818;  Olyphant  v.  St.  L.  Ore  &  23;  Rawson  v.  Lampman,  5  N.  Y.  456; 
Steel  Co.  23  Fed   Rep.  465.  Nodine  v.  Greenfield,  7  Paige,  544,  34  Am. 

8  Gardner  v.  Brown,  21  Wall.  36.  Dec.  363. 

*  Coles  V.  Forrest,  10   Beav.  552;    Cal-  ^  15  &  le  Vict.  ch.  86,  §  42. 

verley  v.  Phelp,   Mndd.    &  G.  229 ;    Tylee  »  Gold.smid  v.  Stonehewer,  9  Hare,  App. 

V.  Webb,  6  Beav.  552,  557;    Goldsmid    v.  xxx\iii;  Tuder  y.  Morris,  1  Sm.  &  G.  503. 

Stonehewer,  9  Hare,  App.  xxxviii.,  17  Jur.  See,  also,  Young    v.  Ward,  10  Hare,  lix; 

199;    Newton    v.   Egmont,    4    Sim.   574,5  Siffken   v.   Davis,   Kay,  xxi;    Cropper   v. 

Sim.  130;    Lauriat  v.   Stratton,  6  Sawyer,  Mellersh,  1  Jur.  N.  S.  299. 

339;  Union  Bank  at  Massillon  v.  Bell,  14  "^  Williamson  v.  Field,  2  Sandf.  Ch.  533. 

Ohio  Sr.  200;  Mavrich  v.  Grier,  3  Nev.  52,  «  Moss  v.  Johnson  (S.  C),  15  S.  E.  Rep. 

57;    Delaplaine   v.   Lewis,    19    Wis.    476;  709.     See  McDowall  y.  Reed,  28  S.  C.  466, 

Johnson    v.   Robertson,  31    Md.  476,  491;  468,  6  S.  E.  Rep.  300. 

324 


.  WHO   ARE    THE   NECESSARY    OR   PROPER   PARTIES.  [§  1398. 

of  a  mortgage,  so  tliat  it  becomes  necessary  to  make  the  holders  of 
such  trust  deed  parties  to  a  suit  for  the  foreclosure  of  a  prior  lien, 
both  the  trustee  and  the  cestui  que  trust  should  be  made  parties 
defendant.^ 

A  mortgagee  having  no  notice  that  the  mortgaged  land  was  held 
by  the  mortgagor  under  a  parol  trust  may  foreclose  without  joining 
the  beneficiaries,  and  the  purchaser  will  obtain  good  title  though 
having  notice  of  such  fact.^ 

1398.  When  beneficiaries  are  numerous.  —  Although'  as  a  gen- 
eral rule  a  nominal  trustee  cannot  be  made  a  defendant  alone  with- 
out joining  with  him  his  cestuis  que  trust,  this  rule  will  not  be  ad- 
hered to  when  great  inconvenience  or  expense  would  be  incurred 
by  making  them  parties.  In  a  case  where  the  trustee  represented 
two  hundred  and  fifty  owners  or  subscribers,  it  was  held  that  he 
sufficiently  represented  them  as  defendant  ;3  and  so  trustees  who 
represented  a  large  number  of  bondholders  under  a  second  mort- 
gage were  held  to  be  the  only  defendants  required  in  a  suit  to 
foreclose  a  prior  mortgage.^  This  exception  to  the  rule  applies 
also  where  the  mortgaged  property  is  held  in  trust  for  numerous 
creditors.^  The  plaintiff,  however,  should  state  distinctly  and  par- 
ticularly the  grounds  on  which  he  omits  to  make  the  creditors  or 
other  persons  interested  in  the  matter  in  controversy  parties  to  the 
suit.^  Even  a  selected  number  of  creditors  may  sufficiently  rep- 
resent the  whole  number ;  but  in  such  case  the  trustees  should  be 
made  parties,  for  the  protection  of  the  interests  of  the  whole  body 
of  creditors.'' 

1  Illinois:  Clark  v.  Manning,  95  111.  6  Holland  u.  Baker,  3  Have,  68. 
.580;  Gaytes  v.  Franklin  Sav.  Bank,  85  7  Holland  v.  Baker,  3  Hare,  68.  Wig- 
Ill.  256 ;  Scanlan  v.  Cobb,  85  III.  296 ;  ram,  V.  C,  in  this  case  said  :  "  I  do  not 
Bayard  v.  McGraw,  1  Bradw.  134  ;  ^Yool-  doubt  that  the  court  does  allow  a  selected 
ner  v.  Wilson,  5  Bradw.  439 ;  Shinn  v.  number  to  represent  a  numerous  body  of 
Shinn,  91  111.  482;  Walsh  v.  Truesdell,  1  defendants  whose  interests  are  sought  to 
Bradw.  126.  be  adversely  affected  in  a  suit.    Lord  Eldon 

■-  Cooper  V.  Loughlin,  75   Tex.  524,   13  repeatedly   said   it   might    be   done,  if  the 

S.  W.  Rep.  37.  purposes  of  justice  required  it;  and  Lord 

3  Van  Vechten  v.  Terry,  2  Johns.  Ch.  Cottenham,  in  Attwood  v.  Smith  (not  re- 
197.  Chancellor  Kent  said  :  "  It  would  be  ported,  but  see  4  Myl.  &  C.  635),  after  say- 
intolerably  oppressive  and  burdensome  to  ing  that  the  right  course  was  to  bring  all 
compel  the  plaintiffs  to  bring  in  all  the  ces-  parties  before  the  court,  observed,  that 
tuis  que  trust.  The  delay  and  the  expense  courts  of  justice  are  bound  to  have  regard 
incident  to  such  a  proceeding  would  be  a  to  the  mode  in  which  the  affairs  of  man- 
reflection  on  the  justice  of  the  court."  kind  are   conducted;   and  when,  in  conse- 

*  N.  J.  Franklinite  Co.  v.  Ames,  12  N.  J.  quence   of    the  mode  of  dealing,    it  would 

Eq.  507.  be  impossible  to  work  out  justice  if  the  rule 

5  Willis  V.  Henderson,  5  111.  13.    And  see  requiring  all  persons  to  be  present  were  not 

Swift  V.  Stebbins,  4  Stew,  &  Port.  447.  departed  from,  it  must  be  relaxed  rather 

325 


§§  1399-1401.]  OF   PARTIES  DEFENDANT. 

1399.  Trustee.  —  It  has  been  held  in  some  cases,  however,  that 
as  the  trustee  and  cestui  que  trust  really  represent  but  one  interest, 
and  the  trustee  is  the  holder  of  the  legal  interest,  he  alone  should 
be  made  a  party  to  the  suit,  as  he  would  be  the  ])arty  entitled  to 
redeem.  This  is  especially  the  case  where  the  trust  is  for  the  ben- 
efit of  creditors.^ 

1400.  Equitable  interest.  —  A  person  having  an  equitable  in- 
terest in  the  mortgnged  premises  by  reason  of  having  advanced 
money  for  erecting  buildings  thereon,  and  who  by  agreement  with 
the  owner  entered  into  possession  of  the  premises  before  the  mak- 
ing of  the  mortgage,  and  continued  in  possession  down  to  the  time 
of  the  sale  of  them  under  foreclosure  suit,  should  be  made  a  party 
to  the  proceedings  ;  otherwise  his  rights  will  not  be  barred.  His 
continued  possession  is  constructive  notice  of  his  equitable  rights.^ 
A  person  having  only  a  remote  or  contingent  interest,  without  any 
estat<^  or  lien,  may  properly  be  made  a  party .^ 

1401.  Remainder-men.  —  When  there  are  estates  in  remainder 
or  reversion  after  a  life  estate  in  the  equity  of  redemption,  it  is 
generally  sufficient  to  bring  before  the  court  the  first  person  in 
being  who  has  a  vested  estate  of  inheritance,  together  with  those 
claiming  the  life  estate,  and  omitting  any  who  may  claim  a  rever- 
sion after  such  vested  estate.^  Those  having  merely  future  contin- 
gent interests  are  not  necessary  parties,  if  the  person  who  has  the 
first  estate  of  inheritance  is  before  tiie  court.  If  the  estate  is  en- 
tailed, it  is  sufficient  to  make  the  first  tenant  in  tail  in  esse  a  party 
if  there  are  no  prior  estates.^  This  is  upon  the  principle  of  repre- 
sentation. "  The  first  tenant  in  tail,"  says  Lord  Camden,  "is  suflB- 
cient;  he  sustains  the  interests  of  everybody:  those  in  remainder 
are  considered  ciphers."^ 

But  it  is  not  enough  to  make  the  persons  holding  the  life  in- 
terest in  the  mortgaged  premises  parties  to  the  bill  without  joining 
any  one  having  a  remainder  in  fee ;  as  in  case  the  mortgagor  makes 

than  be  allowed  to  stand  as  an  obstruction  Chappell  v.  Rees,   1  De  G.,  M.  &  G.  393  ; 

to  justice."  Hopkins  v.  Hopkins,  1  Atk.  .581,  590;  Fish- 

1  Grant  v.  Duane,  9  Johns.  591,  612;  wick  r.  Lowe,  1  Cox,  411  ;  Kerrick  i;.  Saf- 
Willis  V.  Henderson,  5  III.  13;  Paschal's  ferey,  7  Sim.  317  ;  Nodine  i;.  Greenfield,  7 
Dig.  of  Dec.  (  Pexa."*),  §§  18.531,  18.53.3.  Paijje,  .544,  34  Am.  Dec.  363. 

2  Noyes  v.  \\.A\,  97  U.  S.  34 ;  De  Ruyter  ^  Yates  v.  Hanibly,  2  Atk.  237  ;  Fish- 
V.  St.  Peter's  Chnrcli,  2  Barb.  Ch.  655.  wick  v.  Lowe,  1  Cox,  411 ;  Lloyd  v.  Johnes, 

3  Johnson  v.  Briiton,  23  Ind.  105;  Par-  9  Ves.  37  ;  Giffard  v.  Hort,  1  Sch.  &  Lef. 
rott  V.  Hughes,  10  Iowa,  459.  386,  408  ;  Roscarrick  v.  Barton,  1  Ch.  Cas. 

4  Gore  V.  Stackpoole,  1  Dow,  18,  31;  217;  Piatt  v.  Sprigg,  2  Vern.  303;  Wil- 
Eeynold.son  v.  Perkins,  Anibl.  564 ;  Eagle  liamson  v.  Field,  2  Sandf.  Ch.  533. 

F.    Ins.  Co.   V.  Cammet,  2  Edw.  Ch.  127;        ^  Keynoldson  ».  Perkins,  Ambl.  564. 
Cholmoudeley  v.  Clinton,  2  Jac.  &  W.  133: 

326 


WHO   ARE   THE   NECESSARY   AND   PROPER   PARTIES.  [§  1402. 

a  devise  of  the  premises  to  trustees  in  trust  for  his  children  for  life, 
remainder  in  fee  to  his  grandchildren:  the  hitter  must  be  made 
parties  in  order  to  cut  off  their  right  of  redemption.  The  trustees 
cannot  represent  the  whole  estate.^ 

After  a  conveyance  of  lands  subject  to  mortgage  in  trust  for  the 
benefit  of  children,  both  those  in  being  and  tliose  to  be  born,  all  the 
children  in  esse  at  the  time  of  the  filing  of  a  bill  of  foreclosure  should 
be  made  parties.  A  decree  against  the  trustee  alone  does  not  take 
away  their  right  to  redeem.^ 

1402.  The  mortgagor,  if  he  remains  the  owner  of  the  equity 
of  redemption,  is  a  necessary  party  to  a  foreclosure  suit,  because 
witliout  his  presence  the  primary  object  of  the  suit,  a  decree  of 
foreclosure  or  sale,  cannot  be  obtained.^  Even  if  he  has  wholly 
parted  with  his  interest  in  the  premises  he  should  be  made  a  party 
to  the  bill,  if  a  judgment  is  sought  against  him  for  any  deficiency 
of  the  debt  that  may  remain  after  applying  to  it  the  proceeds  of 
the  sale.*  Therefore,  where  the  laws  provide  for  a  judgment  for 
such  deficiency,  he  is  always  a  proper  party,  though  not  a  necessary 
one,  after  he  has  conveyed  his  interest,  so  far  as  effecting  a  complete 
foreclosure  of  the  equity  of  redemption  is  concerned.  If  no  per- 
sonal judgment  is  sought  against  the  mortgagor,  or  none  can  be  had, 

1  Leg^rett  V.  Mut.  Life  Ins.  Co.  of  N.  Y.  *  Delaplaine  v.  Lewis,  19  Wis.  476;  Big- 
64  Barb.  23,  36.  elow  v.  Bush,  6  Paij^e,  343  ;  Shaw  v.  Hoad- 

2  Clark  r.  Revburn,  8  Wall.  318.  ley,  8  Blackf.  165 ;  Van  Nest  v.  Latson,  19 

3  Story  Eq.  PI.  §  197  ;  Farmer  v.  Curtis,  Barb.  604;  Heyman  u.  Lowell,  23  Cal.  106  ; 
2  Sim.  466;  Fell  v.  Brown,  2  Bro.  Ch.  Michigan  Ins.  Co.  v.  Brown,  11  Mich.  265  ; 
276;  Palk  v.  Clinton,  12  Ves.  48;  Cad-  Worthington  ?;.  Lee,  2  Bland,  678;  Moore 
dick  V.  Cook,  32  Beav.  70 ;  Richards  v.  v.  Starks,  1  Ohio  St.  369  ;  Cord  v.  Hirsch, 
Thompson,  43  Kans.  209,  23  Pac.  Rep.  106.  17  Wis.  403;  Semple  v.  Lee,  13  Iowa,  304; 
In  Kay  v.  Whittaker,  44  N.  Y.  565,  572,  Johnson  y.  Monell,  13  Iowa,  300;  Murray 
Hunt,  J.,  said,  obviously  with  reference  to  v.  Catlett,4  Greene  (Iowa),  108;  Williams 
the  case  of  the  mortgagor's  still  remaining  v.  Meeker,  29  Iowa,  292,  294  ;  Huston  v. 
the  owner  of  the  equity:  "To  sustain  a  Striucham,  21  Iowa,  36 ;  Chester  i;.  King,  2 
foreclosure  suit,  the  mortgagor  is  a  neces-  N.  J.  Eq.  405 ;  Vreeland  v.  Loubat,  2  N.  J. 
sary  party,  and  generally  the  only  necessary  Eq.  104. 

one.     Others  may  be  joined  if  it  is  desired  If  the  mortgagor  be  not  a  re.sident  of  the 

to  cut  off  their  interests,  as  a  wife.a  subse-  State,  service   must  be  had  in  the  manner 

quent  purchaser,  or  subsequent  mortgagee,  provided  by  statute  for  service  upon  absent 

They  are    not  indispensable  parties.     The  defendants,  or,  in  the  absence  of  such  stat- 

action  is  good  without  them  ;  and  the  only  ute,  in  the  manner  ordered  by  court.    When 

effect  of  their  absence  is  that  their  interests  service  is  made  by  publication,  it  is  gener- 

are  not  affected  by  the  proceeding."    .  In  a  ally  provided  either  that  an  entry  of  judg- 

few  cases  tlie  mortgagor  has  been  spoken  ment  shall  be  deferred,  or   that   judgment 

of   a>  a   proper   party  merely.     Semple  v.  may  be  opened  if  the    defendant    appears 

Lee,  13  Iowa,  304  ;  Sumner  v.  Coleman,  20  within  a  limited  time.     See  Brown  v.  Con- 

Ind.  486.     But  it  is  conceived  that  this  is  gcr,  lONeb.  236,  4  N.  W.  Rep.  1009. 


an  inaccuracy  in  the  use  of  terms. 


327 


§§  1403,  1404.]       OF  PARTIES  DEFENDANT. 

he  should  not  be  made  a  party  to  the  bill   after  he  has  ceased  to 
have  any  interest  in  the  subject  of  the  mortgage.^ 

1403.  If  the  mortgagor  retains  an  interest  in  the  property, 
such  that  he  may  again  be(!ome  possessed  of  the  equity  of  redemp- 
tion, he  must  be  made  a  party  ;  as,  for  instance,  if  there  has  been  a 
voidable  or  irregular  sale  of  his  equity  under  a  subsequent  mort- 
gage.2  It  would  seem  that  until  he  has  actually  voided  the  sale  the 
purchaser  might  properly  be  regarded  as  the  necessary  party  to  the 
suit,  because  he  would  be  the  apparent  holder  of  the  equity  of  re- 
demption ;  and  that  the  mortgagor  would  be  a  proper  party  only 
by  reason  of  his  possible  right  to  redeem.  Although  a  mortgagor 
has  entered  into  a  binding  contract  to  convey  the  property,  he  is 
not  a  necessary  party  until  he  actually  makes  the  conveyance. 
The  person  contracting  to  purchase  is,  however,  a  proper  party  ; 
and  the  court  may  even  order  him  to  be  brought  in  before  entering 
a  decree.^ 

In  some  cases  it  has  been  held  that  the  circumstance  that  the 
mortgagor  has  conveyed  the  premises  by  a  warranty  deed  gives  him 
a  sufficient  interest  in  a  suit  to  foreclose  the  mortgage  to  authorize 
his  being  made  a  party  defendant.*  But  these  decisions  are  not 
generally  sustained.  The  mortgagor,  however,  is  presumed  to  re- 
tain his  interest  in  the  property,  and  to  be  a  necessary  party,  unless 
the  bill  discloses  a  state  of  facts  which  render  it  unnecessary  to 
make  him  a  party.^ 

The  grantor  in  an  absolute  deed,  intended  as  a  mortgage,  is  not 
a  necessary  party  when  the  defeasance  is  executed  to  another,  to 
secure  whose  debt  the  deed  was  made.  He  is  a  proper  party, 
though  generally  he  may  be  omitted.  If  the  complainant,  however, 
has  any  doubt  of  the  validity  of  the  conveyance,  he  may  very  prop- 
erly join  him  to  set  the  doubt  at  rest.^ 

1404.  The  mortgagor,  after  he  has  conveyed  the  whole  of 
the  premises  mortgaged,  is  not  a  necessary  party  to  the  suit ; 
nor,  indeed,  is  he  a  proper  party,  unless  a  personal  judgment  for 
any  deficiency   there   may  be,  after  applying  the  property  to  the 

1  Brown  v.  Stead,  5  Sim.  535  ;    Swift  v.  2  Merritt  v.  Phenix,  48  Ala.  87.   Aud  see, 

Edson,  5  Coun    531 ;   Broome  v.  Beers,  6  also,  Huston  v.  Stringham,  21  Iowa,  36. 

Conn.  198;  Wilkins  y.Wilkins,  4  Port.  245;  3  Grooke  v.  O'Hijroins,  14  How.  Pr.  154. 

Inge  V.  Boardman,  2  Ala.  331 ;  Stevens  v.  *  Gifford  y.  Workman,  15  Iowa, 34;  Hus- 

Campbell,  21  Ind.  471  ;  Burkhamr.  Beaver,  ton  t".  Stringham,  21  Iowa,  36. 

17    Ind.  367;  Jones  v.    Lapham,   15  Kans.  ^  Kunkel  y.  Markell,  26  Md.  390. 

540 ;  Ashmore  w.  McDonnell,  39  Kans.  669,  ^  Weed    v.  Stevenson,    Clarke   (N.   Y.), 

16  Pac,  Rep.  687.  166. 
328 


WHO  ARE  THE  NECESSARY  OR  PROPER  PARTIES.   [§  1405,  1406. 

debt,  is  sought  against  hiin.^  The  decree  is  condusive  upon  the 
title  without  l)im.^  He  is,  however,  so  far  a  proper  party  in  case 
a  personal  judgment  against  him  is  sought,  that  this  judgment  is 
conclusive  against  him  in  any  future  litigation  between  the  same 
parties,  and  he  may  take  an  appeal  from  it.^  If  he  is  not  made  a 
party,  and  no  one  under  him  has  become  personally  liable  for  the 
debt,  the  decree,  after  finding  the  amount  of  the  debt,  can  merely 
dii'ect  a  sale  of  the  premises  in  satisfaction  of  the  debt.^  And  such 
would  be  the  case,  also,  when  the  debt  is  barred  by  the  statute  of 
limitations,  although  he  is  made  a  party .^ 

1405.  If  the  mortgagor  has  conveyed  away  only  a  portion 
of  the  premises,  and  remains  owner  of  the  residue,  he  may  still  be 
regarded  as  a  necessary  party,  and  the  purchaser  of  the  part  only 
a  proper  one,  because  a  decree  against  the  mortgagor  alone  would 
have  something  to  act  upon,  and  a  decree  against  the  pui'chaser  of 
a  portion  of  the  property  is  not  indispensable,  though  the  portion 
sold  to  him  would  remain  unaffected  if  he  was  not  made  a  party .^ 

A  sale  of  the  mortgagors  interest  upon  execution  does  away  with 
the  necessity  of  rnaking  him  a  party  as  effectually  as  a  voluntary 
sale  would. 

A  partition  of  the  estate  subsequent  to  the  mortgage  affects  the 
mortgagee  so  far  only  that  he  must  see  that  all  persons  who  become 
interested  in  the  property  by  the  partition  shall  be  made  parties  to 
the  proceedings  to  foreclose. 

1406.  The  owner  of  the  equity  of  redemption  by  purchase 
from  the  mortgagor  is,  of  course,  an  essential  party  to  a  bill  to  bar 

1  Miller?;.  Thompson,  34  Mich.  10;  Hi-  2  Soule  v.  Albee,  31  Vt.  142;  Drury  v. 
hernia  Savings  &  Loan  Soc.  v.  Herbert,  53  Clark,  16  How.  Pr.  424  ;  Daly  v.  Burchell, 
Cal.375;  Osborne  i'.  Crump,  57  Miss  622 ;  13  Abb.  Pr.  N.  S.  264;  Stevens  v.  Camp- 
Johnson  iJ.  Foster,  68  Iowa,  140,  26  N.  "\Y.  bell,  21  Ind.  471;  Johnson  v.  Monell,  13 
Rep.  39;  Johnson  r.  Monell,  13  Iowa,  300 ;  Iowa,  300;  Belloc  v.  Rogers,  9  Cal.  123; 
Root  V.  Wright,  21  Hun,  344;  Bennett  v.  Goodenow  ?;.  Ewer,  16  Cal.  461 ;  Schadt  v. 
Mattingly,  110  Ind.  197,  ION.  E.  Rep.  299  ;  Heppe,  45  Cal.  437  ;  Hibernia  Soc.  v.  Her- 
Petry  v.  Ambrosher,  100  Ind.  510;  Davis  bert,  53  Cal.  375;  Gutzeit  v.  Pennie  (Cal.), 
V.  Hardy,  76  Ind.  272;  Watts  v.  Julian,  33  Pae.  Rep.  199;  Swift  v.  Edson,  5  Conn, 
122  Ind.  124,  23N.  E.  Rep.  698;  Curtis  r.  531;  Delaplaine  v.  Lewis,  19  Wis.  476; 
Gooding,  99  Ind.  45;  West  v.  Miller,  125  Cord  v.  Hirsch,  17  Wis.  403. 
Ind.  70,  25  N.  E.  Rep.  143  ;  Miner  v.  Smith,  3  Andrews  v.  Stelle,  22  N.  J.  Eq.  478. 
53  Vt.  551  ;  Sonle  v.  Albee,  31  Vt.  142;  «  Jones  v.  Lapham,  15  Ivans.  540. 
Kinsley  v.  Scott,  58  Vt.  470;  Townsend  5  Mich.  Ins.  Co.  d.  Brown,  11  Mich.  265. 
Sav.  Bank  v.  Epping,3  Woods,  390;  Ham-  See,  also,  Rhodes  v.  Evans,  Clarke  (N.  Y.), 
mons  V.  Bigelow,   115  Ind.  363,  17  N.  E.  168. 

Rej).  192  ;  Bontwell  v.  Sieiner,  84  Ala.  307,  6  Douglass  v.  Bishop,  27  Iowa,  214,  216  ; 

4  So.  Re[).  184,  5  Am.  St.  Rep.  375;  Puck-  Mims  v.  Mims,  35  Ala.  23;  Hull  v.  Lyon, 

ett   V.  Reed  (Tex.),   22   S.  W.    Rep.  515;  27    Mo.    570;  Crenshaw  v.   Thackston,  14 

Jones  V.  Smith,  55  Tex.  383  ;  Patterson  v.  S.  C.  437. 
Alien.  .50  Tex.  23;  Heard  v.  McKinney,  1 

Posey,  Unrep.  Cas.  83.  329 


§  1406.] 


OF   PARTIES   DEFENDANT. 


tlie  equity  b}'^  foreclosure.^  Such  owner  is  in  fact  the  only  neces- 
sary party  defendant.^  Equally  with  the  mortgagor  he  is  unaf- 
fected by  any  foreclosure  proceeding  to  which  he  is  not  made  a 
party ,^  and,  moreover,  the  decree  is  generally  regarded  as  void.*  It 
does  not  matter  that  the  decree  taken  against  him,  as  upon  a  de- 
fault, falsely  recites  that  he  "  was  duly  served  with  notice  and 
brought  into  court."  ^  If  he  has  assumed  the  payment  of  the  mort- 
gnge,  there  is  a  double  reason  for  making  him  a  party .^  If  he  has 
assumed  only  a  portion  of  the  mortgage  debt,  he  is  liable  to  a  per- 
sonal judgment  for  only  that  portion.' 

One  who  is  the  owner  of  the  record  title  is  a  necessary  party 
to  the  suit,  though  he  disclaims  any  beneficial  ownership.^ 

If  the  purchaser  from  the  mortgagor  has  failed  to  place  his  title 
upon  record,  and  consequently  he  is  not  made  a  party  to  proceed- 
ings to  foreclose  the  mortgage,  the  mortgagor  being  made  a  party 
defendant,  the  foreclosure  sale  is  not  for  this  reason  void.^ 

The  purchaser  at  a  foreclosure  sale  under  a  junior  mortgage  is 
not,  prior  to  the  time  when  he  becomes  entitled  to  a  deed,  such  a 
necessary  party  to  a  suit  by  a  senior  mortgagee  as'  to  make  the  de- 
cree Yoid.^^ 

1  England:  Peto  v.  Hammond,  29  Beav. 
91  ;  Maiile  v.  Beaufort,  1  Russ.  349.  New 
York  :  Reed  v.  Marble,  10  Paige,  499  ;  Hall 
r.  Nelson,  14  How.  Pr.  32;  St.  John  v. 
Bumpstead,  17  Barb.  100;  Williamson  v. 
Field,  2  Siindf.  Ch.  .533  ;  Watson  v.  Spence, 
20  Wend.  260  ;  Hall  v.  Nelson,  23  Baib.  88. 
California:  Blndworth  v.  Lake, 33  Cal.  26.5; 
Skinner  v.  Buek,  29  Cal.  253;  Boggs  v. 
Hargrave,  16  Cal.  .559,  76  Am.  Dec.  561  ; 
De  Leon  v.  Hignera,  15  Cal.  483;  Liming 
V.  Brady,  10  Cal.  265.  Wisconsin:  Cord  v. 
Hirsch,  17  Wis.  403;  Moore  v.  Cord,  14 
Wis.  213;  Stark  v.  Brown,  12  Wis.  572,  78 
Am.  Dec.  762 ;  Hodson  v.  Treat,  7  Wis. 
263;  State  Bank  v.  Abbott,  20  Wis.  570. 
Minnesota :  Nichols  v.  Randall,  5  Minn. 
304,  308  ;  Wolf  v.  Banning,  3  Minn.  202, 
204.  Alabama:  Hall  y.  Huggins,  19  Ala. 
200;  Tuiwileri.'.  Dunlap,  71  Ala.  126.  11- 
linois  :  Ohling  v.  Luitjeu.s,  32  111.  23.  Kan- 
sas :  Lenox  v.  Reed,  12  Kans  223.  Ohio: 
Childs  V.  Childs,  10  Ohio  St.  339,  75  Am. 
Dec.  512.  Texas:  Schmeitz  v.  Garey,  49 
Tex.  49.  Nebraska :  Merriman  v.  Hyde, 
9  Neb.  113,2  N.  W.  Rep.  218.  Indiana: 
Travellers'  Ins.  Co.  v.  Patten,  98  iTid.  209 ; 
Petry  v.  Ambrofiher,  100  Ind.  510;  Daugh- 
erty  i;.  Deardorf,   107  Ind.   527;  Watts   i'. 

330 


Julian,  122  Ind.  124,23  N.  E.  Rep.  698; 
Fowler  v.  Lilly,  122  Ind.  297,  23  N.  E.  Rep. 
767;  Curtis  t'.  Gooding,  99  Ind.  45.  Flor- 
ida: Matlieson  ('.Thompson,  20  Fla.  790 ; 
Jordan  v.  Say  re,  24  Fla.  1,  3  So.  Rep.  329  ; 
10  So.  Rep.  823. 

Contrary  to  the  entire  list  of  authorities 
and  to  sound  principle,  it  was  held  in  Sum- 
ner V.  Coleman,  20  Ind.  486  ;  and  in  Sem- 
ple  I'.  Lee,  13  Iowa,  304  ;  Cline  v.  Inlow,  14 
Ind.  419,  that  the  owner,  though  a  proper,  is 
not  a  necessary,  party  defendant. 

2  Carpenter  v.  Ingalis  (S.  D.),  51  N.  W. 
Rep.  948. 

3  Barrett  v.  Blackmar,  47  Iowa,  565. 

*  §§  1394,  1402;  Watts  v.  Julian,  122 
Ind.  124,23  N.  E.  Rep.  698. 

5  Frazier  v.  Miles,  10  Neb.  109. 

••  Bishop  V.  Douglass,  25  Wis.  696;  Green 
V.  Dixon,  9  Wis.  532.  See  this  last  case  for 
a  general  statement  of  the  doctrine  as  to 
parties. 

■^  Logan  V.  Smith,  70  Ind.  597. 

8  Watts  V.  Julian,  122  Ind.  124,  23  N.  E. 
Rep.  698. 

9  Shippen  v.  Kimball,  47  Kans.  173,  27 
Pac.  Rep.  813. 

w  Stanbrough  v.  Daniels,  77  Iowa,  561, 
42_N.  W.  Rep.  443. 


WHO   ARE   THE   NECESSARY   OR   PROPER   PARTIES.      [§§  1407,  1408. 

A  purchaser  of  tlie  mortgaged  property  at  a  tax  sale  is  a  proper 
party  to  a  foreclosure  suit,  so  long  as  he  has  not  acquired  a  title 
superior  to  the  mortgage,  by  notice  to  the  mortgagee  to  redeem,  as 
provided  by  statute  in  some  States. ^  If  such  purchaser  of  a  tax 
title  is  not  made  a  party  to  proceedings  to  foreclose  a  mortgage 
made  previous  to  the  levy  of  the  taxes  for  which  the  sale  was  made, 
he  is  not  affected  by  a  decree  foreclosing  the  mortgage,  or  by  a  sale 
and  conveyance  thereunder.^ 

1407.  If  the  purchaser  from  the  mortgagor  has  assumed  the 
payment  of  the  mortgage  debt,  and  thereby  made  himself  per- 
sonally responsible  to  the  holder  of  the  mortgage,  there  is  less  occa- 
sion to  make  the  mortgagor  a  party.  As  between  him  and  the 
purchaser,  the  land  itself  and  the  purchaser  are  primarily  respon- 
sible, and  the  mortgagor  is  a  surety  only.  But  if  the  mortgagee 
does  not  care  to  obtain  a  personal  judgment  against  him,  theie  is 
no  occasion  to  make  him  a  party  to  the  proceedings.^  In  other 
words,  he  is  not  a  necessary  party  though  a  proper  one.*  There  is, 
however,  no  real  distinction,  as  regards  the  pi'opriety  of  making  the 
mortgagor  a  party,  between  the  case  in  which  he  has  simply  con- 
veyed the  land  incumbered  by  the  mortgage  and  that  where  the 
purchaser  has  assumed  the  payment  of  the  mortgage  debt.  The 
mortgagor  is  just  as  much  bound  to  the  holder  of  the  mortgage 
in  one  case  as  in  the  other;  and  whether  he  remains  the  principal 
debtor,  or  by  a  sale  of  the  property  another  assumes  his  place  as 
debtor  and  he  becomes  only  a  surety,  he  continues  to  the  same  ex- 
tent liable  to  a  personal  judgment  for  a  deficiency. 

1408.  Intermediate  purchasers  who  have  conveyed  their  in- 
terest in  the  property  should  not  be  made  parties  to  the  bill,  nnless 
they  have  assumed  the  payment  of  the  mortgage,  and  thus  become 
personally  liable  for  the  debt,  when  they  may  be  made  parties  for  the 
purpose  of  obtaining  a  personal  judgment  against  them.^  If  they 
have  not  made  themselves  responsible  for  the  mortgage  debt  by 

1  Ruyter  v.  Wickes,  4  N.  Y.  Supp,  743,  Lewis,  19  Wis.  476,  Cole,  J.,  said  :  "Accord- 
22  N.  Y.  St.  Rep.  200.  ing  to  the  weight  of  modern  authority,  the 

2  Chard  v.  Holt,  136  N.  Y.  30,  32  N.  E.  rule  seems  to  be  settled  that  the  mortgagor 
Rep.  740.  who  has   absolutely  parted  with  the  equity 

8  Daly  ?;.  Burchell,  13  Abb.  Pr.  N.  S.  264,  of  redemption  is  not  a  necessary,  though  he 

268 ;  Paton  v.  Murray,  G  Paige,  474 ;  Van  is  a  very  proper,  defendant  in  an  action  to 

Nest  V.    Latson,   19    Barb.   604;    Shaw   v.  foreclose  the  mortt.'<age." 

Hoadley,  8  HIackf.  165;  Burkhamv.  Beaver,  &  Pomeroy's    Remedies     and     Remedial 

17  Ind.367;  Keller    v.  Ashford,  133  U.  S.  Rights,  §  337;   Hall  ;;.  Yoell,  45   Cal.  584; 

610,  10  Sup.  Ct.  Rep.  494.  Lockwood  v.  Benedict,  3  Edw.  472  ;  Finch 

*  McArthur  v.  Franklin,  15  Ohio  St.  485,  v.  Magill,  37  Kans.  761,  15  Pac.  Rep.  907. 
509,    16  Ohio   St.    193.     In    Delaplaine  v. 

331 


§  1409.]  OF   PARTIES   DEFENDANT. 

assuming  it,  having  no  longer  any  interest  in  the  land,  they  cannot 
properly  be  joined  as  defendants.^ 

Formerly  it  was  everywhere  held  that  a  mesne  purchaser  who  had 
assumed  the  mortgage  debt,  and  subsequently  conveyed  the  premises 
to  another  on  like  terms,  was  not  liable  to  the  holder  of  the  mort- 
gage, by  reason  of  his  assuming  it,  because  there  was  no  privity  of 
contract  between  them  ;  that  he  was  liable  only  to  his  grantor,  and 
therefore  that  in  a  suit  to  foreclose  he  could  not  be  made  a  party 
and  adjudged  liable  to  pay  any  deficiency .^  But  now  in  several 
States  the  rule  is  that  one  who  has  assumed  the  debt  is  in  equity 
directly  liable  for  it  to  the  holder  of  the  mortgage.^ 

1409.  Tenants  in  comraon  and  joint  tenants  of  the  equity  of 
redemption  must  all  be  joined.  The  mortgagee  is  entitled  to 
receive  the  whole  of  his  money  together,  if  compelled  to  go  into 
court  at  all.  Therefore,  in  case  the  mortgage  was  made  by  tenants 
in  common,  he  is  entitled  to  a  foreclosure  of  the  whole  estate,  and 
cannot  be  compelled  to  receive  the  share  of  the  debt  due  from  one 
of  them  and  foreclose  against  the  other  for  his  share.*  Such  would 
also  be  the  case  when  two  estates  have  been  mortgaged  together, 
and  the  equities  have  subsequently  passed  into  different  hands. 
Neither  would  he  be  allowed  to  foreclose  against  the  owner  of  one 
estate,  without  making  the  owner  of  the  other  a  party  also,^  unless 
there  were  special  equities  in  favor  of  the  estate  exempted.  A 
federal  court  cannot  entertain  jurisdiction  to  foreclose  a  mortgage 
given  by  an  executor  under  a  power  in  a  will  on  land  devised  to  the 
testator's  children,  some  of  whom  are  non-residents,  and  are  neither 
made  parties  to  the  bill  nor  appear  to  answer.  The  mortgage  can- 
not be  foreclosed  without  affecting  the  interest  of  the  devisees  not 
present,  inasmuch  as  the  devisees  are  joint  tenants,  and  a  decree  of 
foreclosure  or  sale  would  necessarily  affect  the  interest  of  the  non- 
resident devisees.  The  mortgage  could  not  be  foreclosed  as  to  the 
interest  of  those  devisees  only  who  are  made  parties  to  the  bill, 
since  the  entire  lien  would  in  that  case  be  cast  upon  their  shares.^ 

If  the  mortgaged  estate  has  subsequently  been  divided  and  sold 
in  distinct  lots,  all  the  purchasers  must  be  made  parties  to  make  an 
effectual  foreclosure  of  the  whole  estate.''     If  the  mortgage   to  be 

1  Scarry  v.  Eldridge,  63  Ind.44,  7  Cent.  5  Cholmondeley  v.  Clinton,  2    Jac.  &  W. 
L.  J.  418.  134  ;  Palk  v.  Clinton,  12  Ves.  48,  .59. 

2  Lockwood  V.  Benedict,  3  Edw.  472.  6  Detweiler  v.  Holderbuum,  42  Fed.  Rep. 

3  Burr  V.  Beers,  24   N.   Y.   178,   80   Am.  337  ;    R.  S.  of  the  U.  S.  §  737   and  Equity 
Dec.  327  ;  Crawford  v.  Edvvani.s,  33  Mich.  Rule  47  do  not  aid  in  such  case. 

354,  and  cases  cited  ;  §§755-761.  '  Peto  i;.  Hannnond,  29  Beav.  91.     See 

*  Frost  V.  Frost,  3  Sandf.  Ch.  188.  Ireson  v.  Denn,  2  Cox,  425. 

332 


WHO    ARE    THE   NECESSARY   AND    PROPER   PARTIES.       [§§  1410,  1411. 

foreclosed  covers  two  distinct  estates,  one  of  which  is  subsequently 
incumbered  by  a  second  mortgage,  and  the  other  is  sold  to  a  third 
person,  both  the  second  inortgagee  and  the  purchaser,  as  well  as  the 
original  mortgagor  who  retains  the  equity  of  one  of  the  estates,  must 
be  made  parties  to  the  bill ;  for  the  mortgage  cannot  be  foreclosed 
upon  one  estate  alone,  unless  there  be  special  equities,  if  the  owner 
of  it  objects.  The  purchaser  of  a  part  can  redeem  only  by  paying 
the  whole  debt.^ 

1410.  Objection  that  the  owner  of  the  equity  is  not  made  a 
party  to  the  bill  may  be  taken  by  the  mortgagor  in  his  answer.^ 
But  objection  that  the  mortgagor  is  not  made  a  party  defendant  can- 
not be  made  by  a  purchaser  of  the  premises  who  is  a  party  to  the 
suit.^  An  objection  to  the  non-joinder  of  a  defendant  must  be 
taken  by  demurrer  or  answer,  or  will  be  deemed  to  have  been 
waived.*  After  a  foreclosure  sale  the  mortgagor  cannot  object  to 
a  confirmation  of  it  on  the  ground  that  he  was  not  made  a  party, 
and  that  in  consequence  the  equity  of  redemption  was  not  extin- 
guished, and  the  premises  brought  much  less  than  they  would  other- 
wise have  brought.^ 

1411.  Purchaser  pendente  lite.  —  Asa  general  rule,  where  the 
equity  of  redemption  has  been  assigned  or  attached  after  the  com- 
mencement of  proceedings  in  equity  to  foreclose,  the  purchaser  or 
attaching  creditor  need  not  be  brought  before  the  court;  because  he 
is  regarded  as  having  notice  of  the  plaintiff's  rights  and  his  proceed- 
ings to  enforce  them,  and  can  claim  against  him  only  such  title  and 
rights  as  the  owner  of  the  equity  had  at  the  time  of  the  purchase 
or  attachment.*^  In  this  respect  an  assignee  in  bankruptcy  ap- 
pointed pending  a  foreclosure  suit  stands  in  the  same  position  as 
any  other  grantee  of  the  equity  of  redemption,  and  is  barred  b}'  a 
decree  against  the  mortgagor."     Provision  is  made  in  many  States 

1  Douglass  V.  Bishop,  27  Iowa,  214.  v.  Bowman,  6  Barb.  133  ;  Griswold  v.  Mil- 

2  Peto  V.  Hammond,  29  Beav.  91  ;  Drury  ler,  15  Barb.  520;  Cleveland  v.  Boerum,  23 
V.  Clark,  16  How.  Pr.  424;  Hall  v.  Nelson,  Barb.  201,27  Barb.  252,  3  Abb.  Pr.  294; 
14  How.  Pr.  32.  Lyon  (-'.  Sanford,  5  Conn.  545,  548;  Paston 

3  Williams  v.  Meeker,  29  Iowa,  292,  294.  v.  Eubank,  3  J.  J.  Marsh.  42  ;  Hull  v.  Lyon, 
*  See  Davis  v.  Converse,  35  Vt.503.  27  Mo.  570  ;  Ostrora  v.  McCann,  21  How. 
6  Cord  V.  Hirsch,  17  Wis.  403,  408.  Pr.  431  ;  Stevenson  v.  Edwards,  98  Mo.  622, 
6  Garth  v.  Ward,  2  Atk.  174;  Metcalfe  12  S.  W.  Rep.  255;  Stokes  v.  Maxwell,  59 

r.  Pulvertoft,  2   Ves.  &  B.  200,205;  Gas-  Ga.  78  ;  Wi.se    v.   Griffith,  78  Cal.   152,  20 

kell  V.  Durdin,  2  Ball  &  B.  167, 169  ;  Lloyd  Pac.  Kep.  675  ;  Johnson   v.  Valido  Marble 

V.  Passingham,    16  Ves.  59,  66  ;  Parkes  v.  Co.  64  Vt.  337,25  All.  Rep.  441,  445  ;  Kop- 

White,  11  Ves.  209,  236;  Stout  v.  Lye,  103  per  r.  Dyer,  59  Vt.  477,  489,  9  Atl.  Rep.  4. 
U.  S.  521  ;  McPherson  v.  Housel,  \3  N.  J-        ^  Eyster  v.  Gaff,  91   U.  S.  521  ;  Stout  v. 

Eq.  299  ;  Watt  v.  Watt,  2  Barb.  Ch.  371 ;  Lye,  103  U    S.  66  ;  Malone  v.  Marriott,  64 

Jackson  v.  Lose,  4  Sandf.  Ch.  381 ;  Zeiter  Ala.  486;  Pratt  v.  Pratt,  96  111.  184. 

333 


§  1411.]  OF   PARTIES  DEFENDANT. 

for  the  filing  of  a  notice  of  the  pendency  of  the  suit  in  the  registry 
or  with  the  clerk  of  the  court  in  the  county  where  the  mortg<ige  is 
recorded  ;  ^  and  where  the  recording  of  such  notice  is  required,  third 
persons  are  not  affected  with  notice  unless  the  record  is  made  as 
required.^  But  in  the  absence  of  such  statutory  provisions,  the  pro- 
ceedings in  court  being  of  public  record,  parties  are  regarded  as 
having  constructive  notice  of  the  proceedings,  and  take  subject  to 
them.^  As  a  practical  matter,  if  a  mortgagor  could,  after  the  com- 
mencement of  the  suit,  create  new  parties  at  his  pleasure,  by 
making  new  incumbrances  upon  the  property,  whose  presence  in 
court  would  be  necessary  to  the  foreclosure  of  their  rights,  there 
might  be  no  end  to  the  suit.'*  The  doctrine  of  Us  pendens  does  not 
rest  upon  the  presumption  of  notice,  but  upon  reasons  of  public 
policy,  and  applies  where  there  is  no  possibility  that  there  was 
actual  notice  of  the  pendency  of  the  suit.^ 

The  Us  pendens  commences  upon  the  serving  of  the  subpoena,  if 
the  bill  has  been  actually  filed.^  The  pendency  of  the  suit  creates 
the  notice.  When  the  cause  is  ended  by  a  final  decree,  there  is  no 
longer  any  Us  pendens  by  which  parties  can  be  further  affected  with 
notice.'^  Under  a  statute  providing  for  the  filing  of  a  Us  pe^idens, 
creditors  obtaining  judgments  afterwards,  even  before  service  of 
the  summons  and  complaint  upon  the  owner  of  the  equity  of  re- 
demption, are  cut  off  without  being  made  parties.^  If,  pending  the 
bill,  the  mortgagor's  interest  in  the  land  is  sold  on  execution,  the 
plaintiff  is  not  bound  to  amend  his  complaint  so  as  to  make  the  pur- 
chaser a  party  .^ 

It  is  not  within  the  power  of  the  mortgagor,  pending  a  foreclosure 

1  South  Carolina :  R.  S.  S.  C.  1873,  p.  600.  judgment  the  owner  had  not  been  served 
Virginia:  Code  1873,  p.  1166.  West  Vir-  wttli  summons  in  the  foreclosure  suit.  Ful- 
ginia  :  Code  1870,  pp.  667,  668.     Connecti-    ler  v.  Scribuer,  76  N.  Y.  190. 

cut :  Acts  1879,   p.  389.     New  York  :  Code  3  Smith  v.  Davis  (N.  J.  Eq),  19  Atl.  Rep. 

of  Civil  Procedure  (1880),  §  1670.     Califor-  541. 

nia:  Abadie  v.  Lobero,  36  Cal.  390.  *  Garth  r.  Ward,  2  Atk.  174;  Bishop  of 

2  Tliompson  f.  Smith  (Mich.),  55  N.  W.  Winchester  v.  Paine,  11  Vcs.  194,  197; 
Rep.  886.  This  notice  is  unnecessary  as  to  Brooks  y.  Vt.  Cent.  R.  R.  Co.  14  Blatchf. 
all  parties  in  interest  before  the  court.    Tot-  463,471. 

ten  V.  Stuyvesant,  3  Edw.  500.     It  does  not  ^  Newman  v.  Chapman,  2  Rand.  93,  14 

affect  those  having  paramount  rights.   Cur-  Am.  Dec.  766. 

tisy.  Hitchcock,  10  Paige,  399.  ^  Anon.  1  Vern.  318. 

If,  after  notice  has  been    duly  recorded  "^  Worsley  v.  Scarborough,  3  Atk.  392; 

and  one  or  more  of  the  defendants  served  Self  v.  Madox,  1  Vern.  459. 

with  summous   in  the  suit,  a  judgment  be  ^  Fuller  v.  Scribner,  16  Hun,  130.     And 

docketed  against  the  owner  of  the  equity  of  see  Weeks  v.  Tomes,  16  Hun,  349. 

redemption,  the  judgment  creditor  is  bound  ^  Bennett  u.  Calhoun   Loan  &    Building 

by    the  judgment  in   the  foreclosure   suit,  Asso.  9  Rich.  Eq.  163. 
although  at    the  time  of  the  entry  of  his 

334 


WHO  ARE   THE  NECESSARY   OR   PROPER   PARTIES.       [§§  1412,  1413. 

suit,  by  contract  with  a  mechanic  and  without  the  consent  of  the 
mortgagee,  to  create  an  incumbrance  upon  the  property  which  could 
in  any  wise  affect  the  rights  of  the  mortgagee  as  they  miglit  be 
dechired  by  the  final  decree. ^ 

Purchasers  and  creditors  attaching,  pendente  lite,  have  no  right  to 
come  in  by  petition  and  make  defence  in  the  suit.^  They  can  only 
make  themselves  parties  to  the  suit  by  filing  a  bill  to  protect  their 
rights.^ 

A  statute  providing  that  a  person  whose  conveyance  or  incum- 
brance is  recorded  after  the  filing  of  notice  of  pendency  of  such  an 
action  shall  be  bound  by  all  the  proceedings  thereafter  taken  in  it, 
to  the  same  extent  as  if  he  was  a  party,  does  not  apply  to  a  pur- 
chaser or  incumbrancer  in  possession  at  the  time  of  filing  of  such 
notice,  for  such  possession  is  notice,  as  complete  as  the  recording  of 
the  instrument  itself  would  be,  to  all  persons  dealing  with  or  pro- 
ceeding against  the  property.* 

1412.  If  the  deed  to  the  purchaser  of  the  equity  has  not  been 
recorded  at  the  time  of  the  bringing  of  the  bill,  he  is  nevertheless 
a  necessary  party  if  the  plaintiff  has  in  any  way  either  actual  or 
constructive  notice  of  it;^  but  if  the  purchaser  has  not  recorded 
his  deed,  and  the  plaintiff  has  no  notice  of  it,  the  foreclosure  is 
binding  upon  the  purchaser  equally  as  if  he  were  made  a  party.^ 
If  the  deed  be  recorded  before  the  service  of  summons  upon  the 
mortgagor,  the  grantees  are  necessary  parties,  although  notice  of 
the  pendency  of  the  action  had  been  filed  before  the  recording  of 
the  deed.'  Such  notice  becomes  operative  only  upon  the  service 
of  the  summons.  If  the  mortgage  was  not  recorded  at  a  time  of  a 
subsequent  sale  of  the  equity  of  redemption,  a  purchaser  without 
notice  is  not  a  necessary  party,  nor  even  a  proper  one,  because  his 
rights  are  paramount  and  cannot  be  affected  by  the  suit.^ 

1413.  A  mere  occupant  of   the  land  without   title  should  not 

1  Hards  v.  Conn.  Mut.   Life  Ins.  Co.  8  son  u.  Treat,  7    Wis.  26?;  Green  v.  Dixon, 

Biss.  234,  8  Ins.  L.  J.  9,  6  Reporter,  420.  9  Wis.  532. 

-  Davis  V.  Conn.  Mut.  Life  Ins.  Co.  84  ^  Leonard  v.  N.  Y.  Bay  Co.  28  N.  J.  Eq. 

III.  SOS.  192;  Kipp   V.    Brandt,   49    How.  Pr.  358; 

3  People's  Bank  v.  Hamilton  Manuf.  Co.  Woods  v.  Love,  27  Mich.  308;  Aldrich  v. 

10  Paige,  481 ;  Loomis   v.  Stuyvesant,    10  Stephens,  49  Cal.  676  ;  Houghton  v.  Mari- 

Paige,  490.  ner,  7  Wis.  244  ;  Davenport  v.  Tiirpin,  41 

*  Walsh  y.   Schoen,  13  N.  Y.  Supp.  71;  Cal.  100;  Boice  v.  Mich.   Mut.  L.  Ins.  Co. 

Phelan  v.  Brady,  119  N.  Y.  587,   23   N.  E.  114  Ind.  480,  15  N.  W.  Hep.  825. 

Rep.  1109.  7  Farmers'  Loan  &  Trust  Co,  v.  Dickson, 

5  Drury  v.  Clark,  16  How.  Pr.  424  ;  Kur-  17  How.  Pr.  477. 

sheedt  v.  Union  Sav.  Inst.  118  N.  Y.  358,  23  "  Cline  v.  Inlow,  14   Ind.   419  ;  Minis  v. 

N.  E.  Rep.  473 ;  Ehle  v.  Brown,  31  Wis.  405  ;  Mims,  1  Humph.  425. 
Pettibone  v.  Edwards,  15  Wis.  95.    See  Hod- 

335 


§  1414.] 


OF   PARTIES   DEFENDANT. 


be  made  a  party  to  the  bill,^  unless  by  statute  tliis  be  required.^ 
If,  however,  he  has  any  rights,  these  are  not  prejudiced  by  the 
decree;^  and  for  this  reason,  and  that  the  title  may  be  quieted,  an 
occupant  or  a  tenant  in  possession,  although  he  has  no  legal  interest 
in  the  jjremises,  has  sometimes  been  regarded  as  a  proper  party  to 
the  bill.*  A  lessee  for  a  term  of  years  of  the  mortgagor,  having  a 
riglit  to  redeem,  should  be  made  a  party  to  a  suit  to  foreclose.^  But 
occupation  is  notice  of  any  rights  the  occupant  has  in  the  property. 
If,  therefore,  he  has  a  valid  contract  of  purchase,  a  foreclosure  with- 
out making  him  a  party  will  operate  merely  as  an  assignment  of 
the  moi'tfjatje.^ 

1414.  Mortgagor's  heirs.  —  If  the  mortgagor  has  died  seised  of 
the  mortgaged  estate,  his  heirs  at  law  or  devisees  are  indispensable 
parties.  It  is  not  enough  to  make  his  executor  or  administrator  a 
party  to  it."     The  personal  representative  has  no  title  to  the  land, 


1  Suiter  v.  Turner,  10  Iowa,  517. 

2  Biifkner  v.  Sessions,  27  Ark.  219; 
rietciier  v.  Hutchinson,  25  Ark.  30. 

3  Suiter  V.  Turner,  10  Iowa,  517  ;  Ballard 
V.  Carter,  9  S.  VV.  Hep.  92. 

4  Kuyter  v.  Reid,  121  N.  Y.  498,  24  N.  E. 
Rep.  791,  25  N.  E.  Rep.  377  ;  Comings  v. 
Smith,  6  N.  Y.  82  ;  Lewis  v.  Smith,  9  N.  Y. 
502  ;  Merchants'  Bank  v.  Thomsou,  55  N. 
Y.  7  ;  Cruger  v.  Daniel,  McMuil.  Eq.  157, 
196. 

5  Lockhart  v.  Ward,  45  Tex.  227 ;  Aver- 
ill  V.  Taylor,  8  N.  Y.  44. 

6  Martin  v.  Morris,  62  Wis.  418,  22  N. 
W.  Rep.  .525. 

^  Story  Eq.  PI.  §§  194,  196;  Farmer  v. 
Curtis,  2  Sim.  466;  Fell  v.  Brown,  2  Bro. 
Ch.  276;  Palk  v.  Clinton,  12  Ves.  48,  58  ; 
Duncombe  v.  Hanslcy,  3  P.  Wms.  333  n.; 
Bratishaw  v.  Outram,  13  Ves.  234.  nU- 
nois  :  Bissell  v.  Marine  Co.  of  Chicago,  55 
111.  165;  Ohling  v.  Luitjens,  32  111.  23; 
Lane  v.  Erskine,  13  111.  501  ;  Harvey  v. 
Tlioruton,  14  111.  217.  Kansas  :  Britton  v. 
Hunt,  9  Kans.  228.  Ohio  :  Moore  v.  Starks, 
1  Ohio  St.  369.  Virginia  :  Graham  v.  Car- 
ter, 2  Hen.  &  M.  6  ;  Mayo  v.  Tonikies, 
6  Munf.  520.  Tennessee  :  Mclver  v.  Cher- 
ry, 8  Humph.  713.  Wisconsin:  Stark  v. 
Brown,  12  AVis.  572,  78  Am.  Dec.  762; 
Z£e;;el  i'.  Kuster,  51  Wis.  31,  7  N.  W.  Rep. 
781.  North  Carolina:  Averett  v.  Ward, 
Bushee  Eq.  192;  Isler  v.  Koonce.  83  N.  C. 
55;  Fraser  v.  Bean,  96  N.  C.  327,  2  S.  E. 
Rep.  159.     Maryland:  Worthington  v.  Lee, 

336 


2  Bland,  678.  Indiana  :  Muir  v.  Gibson,  8 
Ind.  187;  McKay  v.  Wakefield,  63  Ind. 
27;  Daugherty  v.  Deardorf,  107  Ind.  527. 
Iowa :  Detweiler  u.  Holderbaum,  42  Fed. 
Rep.  337  ;  Shields  v.  Keyes,  24  Iowa,  298. 
Minnesota:  Hill  v.  Townley,  45  Minn.  167, 
47  N.  W.  Rep.  653;  Noon  v.  Finnegan,  29 
Minn.  418,  13  N.  W.  Rep.  197.  Missotiri: 
Miles  V.Smith,  22  Mo.  502;  Bollinger  v. 
Chouteau,  20  Mo.  89.  Arkansas  :  Kiernan 
V.  Bhickwell,  27  Ark.  235  ;  Simms  v.  Rich- 
ardson, 32  Ark.  297  ;  Pillow  v.  Sentelle,  39 
Ark.  61.  Alabama  :  Hunt  v.  Acre,  28  Ala. 
580  ;  Erwin  v.  Ferguson,  5  Ala.  158  ;  Jones 
V.  Riciiardson,  85  Ala.  463,  5  So.  Rep.  194. 
Kentucky :  Shiveley  v.  Jones,  6  B.  Mon. 
274.  Michigan :  Abbott  v.  Godf  roy,  1 
Mich.  178.  Mississippi:  Byrne  v.  Taylor, 
46  Miss.  95.  South  Carolina :  Bryce  v. 
Bowers,  11  Rich.  Eq.  41  ;  Trapier  v.  Waldo, 
16  S.  C.  276;  Butler  v.  Williams,  27  S.  C 
221,  3  S.  E.  Rep.  211  ;  Johnson  v.  Johnson, 
27  S.  C.  309,  3  S.  E.  Rep.  606.  New  York  : 
Wood  V.  Moorehouse,  1  Lans.  405.  Ore- 
gon: Renshawy.  Taylor,  7  Oreg.  315. 

A  statute  forbidding  an  action  to  be 
brought  against  an  executor  or  administra- 
tor, within  one  year  from  the  date  of  his 
appointment,  does  not  apply  to  a  bill  for 
foreclosure  against  the  heir  of  a  deceased 
mortgagor.  Slaughter  v.  Foust,  4  Blackf. 
379. 

In  Florida  the  heir  is  not  a  necessary 
party,  but  the  administrator  is.  Merritt  v. 
Daffin,  24  Fla.  320,  4  So.  Rep.  806, 


WHO  ARE  THE  NECESSARY  OR  PROPER  PARTIES.     [§  1414. 

tbougl]  in  some  States  be  has  a  temporary  right  of  possession.  The 
personal  claim  for  the  mortgage  debt  or  deficiency  must  be  pre- 
sented for  allowance  in  the  course  of  administration  in  the  probate 
court.^ 

A  judgment  obtained  in  a  foreclosure  suit  against  the  mortgagor 
commenced  after  his  death,  without  making  his  heirs  parties  to  it, 
is  void  as  against  such  heirs.^ 

Upon  the  death  of  the  mortg^igor  pending  a  foreclosure  suit,  his 
heirs  should  be  summoned  in,  and  the  suit  prosecuted  against  thera.^ 

The  heirs  of  a  mortgagor  who  has  sold  the  mortgaged  premises 
in  his  lifetime  have  no  interest  in  the  land,  and  therefore  should 
not  be  made  parties  to  the  bill,  unless  the  validity  of  the  convey- 
ance is  controverted.*  The  heirs  of  a  deceased  mortgagor  are  not 
necessary  parties  in  case  the  mortgagor  has  in  his  lifetime  assigned 
all  his  property  for  the  benefit  of  his  creditors.^  If  the  complain- 
ant seeks  for  a  personal  judgment  or  for  an  account,  the  personal 
representative  should  be  joined  with  the  heirs  ;^  but  if  no  such 
judgment  be  sought,  the  personal  representative  should  not  be 
joined."     Of  course  such   suit  cannot  be  maintained  until  the  ex- 


In  Georgia  the  personal  representative  of 
the  niortgiioor  is  a  necessary  p;irty.  Ma- 
gnulerf.  Offutt,  Dudley  (Ga.J,227  ;  Dixon 
V.  Cu\ler,  27  Ga.  248. 

In  South  Carolina,  under  the  former  equi- 
ty praciice,  it  was  said  that  the  personal  rep- 
resentative should  be  joined.  Mitchell  v. 
Bo<^an,  II  Rich.  686,  711. 

In  Missouri,  since  the  Code  of  1845,  the 
personal  re|iresentative  of  the  morfgajror  is 
a  necessary  party  ;  JMiles  v.  Smith,  22  Mo. 
502  ;  Perkins  v.  Woods,  27  Mo.  547  ;  and 
the  only  neces>ary  party  ;  Hall  v.  Klepzig, 
99  Mo.  83,  12  S.  W.  Rep.  372. 

1  Hill  17.  Townley,  45  Minn.  167,  47  N. 
W.  Rep.  653;  Commercial  Bank  v.  Slater, 
21  :\Iinii.  174;  Fern  i-.  Leuthold,  39  Minn. 
212,  39  N.  W.  Rep.  399. 

^  Richards  v.  Tluimpson,  43  Ivans.  209, 
23  Pac.  Rep.  106  ;  Craven  v.  Bradley  (Kans.), 
32  Pac.  Rep.  1112. 

3  Hibcrnia  Sav.  Soc.  v.  Wackenrender 
(Cal.).34  Pac.  Rep.  219.  But  in  California 
the  Code  Civ.  Pro.  §§  1500,  1502  ])rovides 
for  presenting  of  claims  against  a  decedent's 
estate,  but  permits  a  foreclosure  on  it  with- 
out such  presentation  provided  recourse 
against  other  property  is  expressly  waived. 
Supplemental  proceedings  against  the  heirs 
VOL.  II.  22 


after  the  death  of  the  mortgagor  pending 
suit  a^zainst  him  are  not  a  new  action  as 
regards  the  statute  of  limitations. 

*  Medley  v.  Elliott,  62  111.  532;  Douglas 
V.  Souther,  52  111.  154;  Wilkins  v.  Wilkins, 
4  Port.  245. 

5  Butler  V.  Williams,  27  S.  C.  221,  3  S. 
E.  Rep.  211.  In  California,  however,  the 
heirs  of  the  mortgagor  are  not  necessary 
parties.  Bayly  v.  Muelie,  65  Cal.  345,  3  Pac. 
Rep.  467,4  Pac.  Rep.  486. 

6  Daniel  r.  Skipwith,  2  Bro.  C.  C.  155; 
Bradsliaw  v.  Outrani,  13  Ves.  234;  Erwia 
V.  Ferguson,  5  Ala.  158;  Jones  v.  Richard- 
son, 85  Ala.  463,  5  So.  Rep.  191 ;  Leonard 
V.  Morris,  9  Paige,  90 ;  Bigelow  v.  Bush,  6 
Paige,  345  ;  Huston  v.  Stringham,  21  Iowa, 
36;  Darlington  v.  Effey,  13  Iowa,  177; 
Drayton  u.  Marshall,  Rice  (S.  C.)  Eq.  373, 
33  Am.  Dec.  84;  Inge  v.  Boardman,  2  Ala. 
331  ;  Belloc  v.  Rogers,  9  Cal.  123  ;  Ilarwood 
V.  Marye,  8  Cal.  580;  Carr  v.  Caldwell,  10 
Cal.  380,  70  Am.  Dee.  740;  Butler  v.  Wil- 
liams, 27  S.  C.  221,  3  S.  E.  Rep.  211  ;  Hodg- 
don  V.  Heidraan,  66  Iowa,  645,  24  N.  W. 
Rep.  257. 

''  Hibernia  Savings  and  Loan  Soc.  v. 
Herbert,  53  Cal.  373,  7  Reporter,  458, 

337 


§  1415.]  OF  PARTIES   DEFENDANT. 

piration  of  the  year  after  the  issuing  of  letters  of  administration, 
during  which  time  the  administrator  is  exempt  from  suit.^  If  the 
debt  is  barred,  or  for  any  reason  is  not  payable  out  of  the  personal 
assets,  the  occasion  for  joining  the  personal  representative  no  longer 
exists. 

The  heirs  of  the  mortgagor  or  other  person  who  has  died  seised 
of  the  estate  covered  by  the  mortgage  are  necessary  parties,  just 
as  the  deceased  mortgagor  or  owner  would  have  been  if  the  action 
had  been  brought  in  his  lifetime,  being  indispensable  to  the  render- 
ing of  any  judgment  of  foreclosure,  or  for  the  sale  of  the  property. 
The  court  of  its  own  motion,  even  if  no  one  who  is  a  party  to  the 
suit  makes  objection  that  they  are  not  joined,  will  order  them  to  be 
brought  in  as  defendants.^  If  the  heirs  are  beyond  the  jurisdic- 
tion of  the  court  the  cause  cannot  be  proceeded  with.^  Under  a 
statute  by  which  the  personal  representative  of  a  deceased  person 
succeeds  to  the  lands  as  well  as  the  personal  property,  for  the  pur- 
pose of  administration  the  executor  or  administrator  becomes  the 
necessary  party  in  the  foreclosure  of  a  mortgage,  in  place  of  the 
heir.4 

The  possibility  that  the  mortgage  debt  may  have  been  paid  in 
whole  or  in  part  is  no  occasion  for  joining  the  personal  representa- 
tive. The  heir  can  take  advantage  of  such  payment,  if  any  there 
be,  and  must  establish  the  fact  himself  by  proofs.  Yet,  under  the 
statutes  of  several  of  the  States,  it  is  held  that  the  personal  rep- 
resentative is  a  proper  party  at  least,  and  should  be  admitted  as 
such  upon  his  motion;^  that  he  has  the  same  right  to  be  made  a 
party  that  the  mortgagor  had  ;  ^  and  especially  when  the  mortgagee 
seeks  to  charge  the  personal  estate  of  the  deceased,  of  which  the 
administrator  is  the  representative,  on  account  of  the  inadequacy  of 
the  securit3\'' 

A  guardian  of  minor  heirs  need  not  be  joined  as  a  defendant.^ 

1415.  Heir  of  purchaser.  —  The  same  rules  as  to   making   the 

1  Lovering  v.  Kinfj,  97  lud.  130.  Rep.  98.5  ;  Vreeland  v.  Loubat,  2  N.  J.  Eq. 

2  Story's  Eq.  PI.  §  196;  Muir  y.  Gibson,  104;  Chester  v.   King,   2  N.  J.  Eq.   405; 
8  Ind.  187.  Building  Asso.  v.  Vendervere,  11  N.  J.  Eq. 

3  Fell  V.  Brown,  2  Bro.  C  C.  276  ;  Far-  382,  383;  Dorsheimer  v.  Rorback,  23  N.  J. 
raer  v.  Curtis,  2  Sim.  466.  Eq.  46,  25  N.  J.  Eq.  516,  519 ;  Andrews  v. 

4  Harwood  v.  Marye,  8  Cal.  580.  Stelle,  22  N.  J.  Eq.  478. 

8  Miles  V.  Smith,  22  Mo.  502 ;  Darlington  «  Huston  v.  Stringham,  21  Iowa,  36. 

V.  Effey,  13  Iowa,  177;  Hunt  v.  Acre,  28  ^  Darlington  y.  Effy,  13  Iowa,  177  ;  United 

Ala.    580;  Dixon   v.   Cuyler,  27  Ga.  248;  Security  L.  Ins.  Co.  v.  Vandegrift  (N.  J.), 

Mitchell  V.  Bogan,  11  Rich.  L.  686  ;  Martin  26  Atl.  Rep.  985. 

V.  O'Bannori,  35  Ark.  62  ;  United  Security  8  Alexander  v.  Frary,  9  Ind.  481. 
L.   Ins.  Co.  V.  Vandegrift  (N.  J.),  26  Atl. 
838 


WHO   ARE  THE  NECESSARY   OR   PROPER   PARTIES.      [§§  1416-1419. 

heirs  of  tlie  mortgagor  parties  to  the  foreclosure  suit  apply  as  well 
to  the  heirs  of  a  purchaser,  or  of  a  judgment  creditor,^  but  of 
course  no  personal  judgment  can  be  had  against  such  lieirs.^ 

1416.  Heirs  of  partner.  —  If  one  of  two  or  more  joint  mortga- 
gors, who  are  partners,  dies  pending  a  suit  for  foreclosure,  it  is  not 
necessary  to  make  his  heirs  or  personal  representatives  parties  to  it, 
because  the  title  vests  in  the  surviving  partners,  who  alone  are  the 
proper  defendants.^ 

1417.  Although  the  mortgage  be  of  a  term  of  years  the  mort- 
gagor's heirs  are  alone  interested,  and  therefore  must  be  made  par- 
ties to  a  bill  to  foreclose  the  mortgnge.^ 

1418.  Devisees.  —  Under  the  same  rule,  a  devisee  of  the  mort- 
gagoi-,  whether  in  trust  or  beneficially,  is  a  necessary  party  in  re- 
spect to  so  much  of  the  equity  of  redemption  as  has  been  given  to 
him.5  If  the  whole  equity  has  been  devised  to  him,  the  heir,  hav- 
ing no  interest  in  it,  is  not  a  proper  party  ;  but  if  the  title  of  the 
devisee  under  the  will  be  disputed  by  the  heir,  then  he  should  be 
joined  as  well  ;^  and  since  the  probate  of  a  will  may  within  a  lim- 
ited period  be  impeached,  a  plaintiff  who  proceeds  without  joining 
the  heirs  does  so  at  the  risk  of  their  afterwards  proving  to  be  the 
real  parties  in  interest."  A  discretionary  power  of  sale  for  rein- 
vestment, given  by  a  mortgagor  to  an  executor  during  the  minority 
of  a  devisee,  does  not  vest  the  executor  with  the  fee  so  as  to  make 
him  a  necessary  party  to  the  suit.^  An  executor  with  such  a  power 
cannot  bind  a  dyvisee  not  made  a  party  to  the  suit  by  a  ratification 
of  the  foreclosure.^  If  the  mortgagor  by  his  will  charges  the  equity 
of  redemption  with  the  payment  of  an  annuity,  the  annuitant  should 
be  made  a  party. ^*^ 

1419.  Legatees.  —  When  legacies  are  made  a  special  charge 
upon  the  mortgaged  estate  the  legatees  should  be  made  parties.^^ 
But  they  are  not  necessary  parties  when  the  legacies  are  not  a 
charge  upon  the  mortgaged  premises,  nor  upon  the  real  estate  gen- 
eral! y.^^ 

1  Milroy  v.  Stockwell,  1  Ind.  35.  "^  Hunt  v.  Acre,  28  Ala.  580;  Belton  v. 

2  Cundiff  V.  Brok:i\v,  7  Bradw.  147.  Summer,  31  Fla.  139,  12  So.  Rep.  371. 

3  Cullum  V.  Batre,  1  Ala.  126.  Aud  see  »  Chew  v.  Hyman,  7  Fed.  Rep.  7;  Stein- 
Jones  V.  Parsons,  25  Cal.  100.  hardt    v.   Cunningham,  130  N.   Y.   292,  29 

*  Bradsiiaw    v.   Outrain,    13   Ves.    234;  N.  E.  Rep.  100. 

Cholmondeley  v.  Clinton,  2  Jac.  &  W.  135.  9  Chew  v.  Ilyman,  7  Fed.  Rep.  7. 

^  Coles  V.   Forrest,  10  Beav.  552;  Gra-  ^°  Hunt  v.  Fownes,  9  Ves.  70. 

ham   V.  Carter,  2  Hen.  «&  M.  6;  Mayo  v.  "  Batchelor  «.  Middleton,  6  Hare,  75,  78 ; 

Tomkies,  6  Munf.  520  ;  Chew  v.  Hyman,  7  M'Gown  v.  Yerks,  6  Johns.  Cii.  450. 

Fed.  Rep.  7.  ^2  Hebron  Society  v.  Schoen,  CO  How.  Pr. 

6  Macclesfield   v.   Fitton,    1    Vern.    168;  185. 
Lewis  V.  Nauglc,  2  Ves.  Sen.  430,  Anibl.  1 50. 

339 


§  1420.] 


OF   PARTIES   DEFENDANT. 


1420.  Mortgagor's  wife.  —  It  is  usual  to  make  the  wife  who 
has  joined  in  the  execution  of  tlie  mortgage  a  party.  But  no  ob- 
jection can  be  taken  by  the  defendant  that  she  is  not  joined  ;  the 
only  consequence  is  that,  if  her  right  of  dower  becomes  fixed  and 
absohite,  siie  may  then  redeem.^  It  is  questioned  in  some  cases 
whether  it  is  necessary  to  join  the  wife  in  order  to  cut  off  her  in- 
choate right  of  dower,^  on  the  ground  that  this  right  is  not  any  real 
interest  in  the  land.  But  generally  this  inchoate  right  of  dower  is 
regarded  as  a  right  in  the  land  created  for  her  benefit,  which  at- 
taches as  soon  as  her  husband  is  seised  of  it,  although  it  is  at  the 
time  and  until  his  death  only  a  contingent  or  possible  one.  This 
inchoate  right  is  therefore  as  much  entitled  to  protection  as  the 
right  when  it  is  absolute.  The  want  of  harmony  between  the  de- 
cisions in  this  matter  is  in  large  part  to  be  accounted  for  by  the 
statutes  of  several  States  which  have  radically  changed  the  common 
law  of  dower.  In  all  those  States  in  which  the  common  law  doc- 
trine reumins  unchanged,  when  the  wife  of  a  mortgagor  has  joined 
in  the  execution  of  a  mortgage  the  rule  is  general  that  she  should 
be  joined  as  a  party  when  it  is  desired  to  bar  her  rights  by  the  de- 
cree of  foreclosure  or  sale.^ 

The  wife  having  no  separate  estate  in  the  property  at  the  time 


1  Powell  V.  Ross,  4  Cal.  197;  Rissel  v. 
Eaton,  64  Iiid.  248. 

2  In  Denton  v.  Nanny,  8  Barb.  61 8,  Brown, 
J.,  said  :  "  I  find  it  nowhere  expressly  ad- 
judged tliat  a  wife  is  a  necessary  party  to  a 
bill  of  foreclos-ure  in  order  to  extinguish  her 
inchoate  rit;ht  of  dower."  Bell  v.  Mayor  of 
N.  Y.  10  Paige,  49  ;  Eslava  v.  Le  Pretre,  21 
Ala.  504,  .56  Am.  Dec.  266  ;  Gary  !;.Wheeler, 
14  Wis.  281.  But  see  Foster  v.  Ilickox,  38 
Wis.  408;  Thornton  v.  Pigg,  24  Mo.  249; 
Eiddifk  V.  Walsh,  15  Mo.  519,  538;  Powell 
V.  Ros<,  4  Cal.  197.  This  case,  however,  is 
overfuled  by  later  cases  in  this  State. 

3  Wisconsin :  Foster  v.  Hickox,  38  Wis. 
408.  Iowa :  Moomey  v.  Maas,  22  Iowa, 
380,  92  Am.  Due.  395;  Chase  v.  Abbott,  20 
Iowa,  154;  Buriiap  v.  Cook,  16  Iowa,  149, 
g5  Am.  Dec.  507.  California:  Sargent  v. 
Wilson,  5  Cal.  504;  llevalk  v.  Kraemer,  8 
Cal.  66,  68  Am.  Dec.  304 ;  Kohuer  v.  Ashe- 
nauer,  17  Cal.  578  ;  Anthony  v.  Nye,  30  Cal. 
401  ;  Marks  v.  Marsh,  9  Cal.  96;  Burton  i-. 
Lies,  21  Cal.  87.  Texas:  Tadlock  r.  Eccles, 
20  Tex.  782,  73  Am.  Dtc.  213.  Michigan: 
Wisncr  v.  Farnham,  2  Mich.  472.     Illinois  : 

340 


Wright  V.  Langley,  36  Til.  381  ;  Leonard  v. 
Villars,  23  111.  377.  Maryland:  Johns  v. 
Reardon,  3  Md.  Ch.  57.  Mississippi:  Den- 
niston  v.  Potts,  19  Miss.  36  ;  Byrne  v.  Tay- 
lor, 46  Miss.  95.  Indiana:  AVatt  v.  Alvod, 
25  Ind.  533;  Martin  i'.  Noble,  29  Ind.  216; 
Chambers  v.  Nicholson,  30  Ind.  349.  New 
York:  Mills  v.  Van  Voorhics,  28  Barb.  125, 
20  N.  Y.  412,  10  Abb.  Pr.  152  ;  Merchants' 
Bank  v.  Thomson,  55  N.  Y.  7, 1 1  ;  Kursheedt 
V.  Union  Sav.  Inst,  118  N.  Y.  358,  23  N.  E. 
Rep.  473  ;  Simar  v.  Cauaday,  53  N.  Y.  298  ; 
Denton  v.  Nanny,  8  Barb.  618.  North 
Carolina:  Nimrock  r.  Scanlan,  87  N.  C- 
119.  Alabama:  Sims  v.  Bank,  73  Ala. 
248;  McGehee  v.  Lehman,  65  Ala.  316; 
Kimbrell  v.  Rogers,  90  Ala.  339,  7  So. 
Rep.  241  ;  McGough  v.  Sweetser  (Ala.), 
12  So.  Rep.  162;  Eslava  v.  Lepretre,  21 
Ala.  504  ;  Duval  v.  McLoskey,  1  Ala.  708. 
Ohio:  McArthur  y.  Franklin,  15  Ohio  St. 
485,  16  Ohio  St.  193,  where  this  matter  is 
fully  discussed.  Massachusetts:  Gii)son  i'. 
Crc'hore,  5  Pick.  146.  Illinois:  Gilbert  v. 
Maggord,  2  III.  471 ;  Leonard  v.  Villars,  23 
111.  377. 


WHO   ARE   THE   NECESSARY   OR   PROPER   PARTIES.  [§  1421. 


of  the  foreclosure,  but  only  a  possibility  of  dower  upon  the  death 
of  the  husband  leaving  her  surviving,  some  authorities  hold  that 
when  she  is  made  a  party  to  the  foreclosure  suit  a  personal  ser- 
vice of  the  summons  upon  her  is  not  necessary;  that  it  is  suffi- 
cient to  serve  it  upon  the  husband  only  ;  and  that  he  is  bound  to 
appear  for  her,  and  if  he  does  not  she  may  be  defaulted  as  if  per- 
sonally served. 1  Her  right  is  regarded  as  a  mere  incident  to  her 
husband's  title.  It  would  seem,  however,  that  process  should  issue 
against  her.  Though  she  be  made  a  party  to  the  suit,  a  summons 
issued  against  and  served  on  the  husband  alone  does  not,  accord- 
ing to  most  authorities,  bind  her  in  any  way,  or  even  authorize  the 
husband  to  appear  and  act  for  her ;  and  the  doctrine  stated  above 
seems  to  be  generally  repudiated.- 

If  the  mortgagor  dies  before  foreclosure,  or  pending  a  foreclosure 
suit,  his  widow  should  be  made  a  defendant.^  The  widow  of  the 
owner  of  the  equity  of  redemption,  when  she  appears  also  to  be  the 
only  heir,  is  a  necessary  party  to  a  suit  for  the  foreclosure  of  the 
mortgage.^ 

1421.  If  the  wife  did  not  join  her  husband  in  his  mortgage 
in  release  of  her  dower,  she  should  still  be  made  a  party  to  the 
bill  if  there  is  a  defence  to  the  claim,  either  by  reason  of  a  subse- 
quent release,  or  because  the  mortgage  was  given  to  secure  the 
payment  of  purchase-money  ^  and  is  not  subject  to  dower.^  In 
such  cases  the  right  is  subordinate  to  the  mortgage,  and  is  barred 


1  New  York :  Foote  v.  Latlirop,  53  Barb. 
183,  affirmed  in  41  N.  Y.  358  ;  Watson  v. 
Church,  3  Hun,  30;  Eckerson  v.  Vollmer, 
11  How.  Pr.  42;  Lathrop  v.  Heacock,  4 
Lans.  1  ;  White  v.  Coulter,  1  Hun,  357,  359. 
In  Ferguson  v.  Smith,  2  Johns.  Ch.  139, 
Chancellor  Kent  gives  us  the  reason  for  the 
rule  that  service  of  a  suhpoena  against  hus- 
band and  wife  is  good  if  made  on  the  hus- 
band alone,  —  that  the  husband  and  wife 
are  one  person  in  law,  and  the  husband  is 
bound  to  answer  for  both.  Perhaps  this 
reason  was  better  formerly  than  now.  As 
regards  the  matter  of  service  upon  the  wife 
in  a  foreclosure  suit  to  bar  her  right  of 
dower,  the  fact  tliat  this  is  no  existing 
claim,  and  is  an  interest  resulting  from  the 
marital  relations,  seems  to  be  the  ground 
taken  in  the  recent  decisions  for  the  rule 
that  service  upon  the  husband  alone  is 
good. 

Under  the  present  Code  of  Procedure  of 
New  York,  the  wife  of   the  owner  of   the 


equity  of  redemption  may  appear  and  de- 
fend by  her  own  attorney,  as  though  she 
were  single.  Janiuski  v.  Heidelberg,  21 
Hun,  439. 

-  McArthur  v.  Franklin,  15  Ohio  St.  485, 
16  Ohio  St.  193  ;  Union  Bank  at  Massillon 
V.  Bell,  14  Ohio  St.  200.  See  Denton  v. 
Nanny,  8  Barb.  618,  624;  Mills  v.  Van  Voor- 
hies,  20  N.  Y.  412,  415. 

3  Za^gel  V.  Kuster,  51  Wis.  31. 

4  Holland  v.  Holland,  131  Ind.  196,  30 
N.  E.  Rep.  1075  ;  Curtis  v.  Gooiling,  99  Ind. 
45;  Watts  y.  Julian,  122  Ind.  124,  23  N.  E. 
Rep.  698;  Dauglierty  v.  Deardoif,  107  Ind. 
527,  8  N.  E.  Rep.  296  ;  Pauley  v.  Cauthorn, 
101  Ind. 91. 

5  Barr  v.  Vanalstiue,  120  Ind.  590,  22 
N.  E.  Rep.  965. 

«  Mills  V.  Van  Voorhies,  20  N.  Y.  412,  re- 
versing 23  Barb.  125  ;  Wheeler  v.  Morris,  2 
Bosw.  524  ;  Heth  v.  Cocke,  1  Rand.  344 ; 
Foster  v.  Hickox,  38  Wis.  408. 

341 


§  1422.]  OF   PARTIES   DEFENDANT, 

if  she  be  made  a  party.  •  There  are  cases  in  conflict  with  this 
rule,  proceeding  upon  the  theory  that  the  wife  in  such  case  has 
no  interest  in  the  hmd,  or  any  equity  of  redemption,  and  is  there- 
fore barred  by  the  decree,  although  not  made  a  part3\^  If  the 
claim  be  a  paramount  one,  and  in  no  way  subject  to  the  mort- 
gage, it  cannot  then  be  barred  by  the  decree,  and  she  should  not 
be  made  a  party  to  the  suit.^  But  if  she  has  not  joined  in  the 
mortgage,  and  there  is  no  defence  to  her  claim,  she  is  not  a  proper 
party  to  the  bill,  as  her  rights  would  not  be  affected  if  she  were 
made  a  party  .^ 

Where  the  owner  of  land  executed  two  mortgages  of  it  at  dif- 
ferent times,  in  the  first  of  which  his  wife  did  not  join,  but  did  join 
in  the  second,  and  the  second  mortgage  was  first  foreclosed,  and  the 
purchaser  was  made  a  party  to  an  action  to  foreclose  the  first  mort- 
gage, it  was  held  that  the  foreclosure  of  the  second  mortgage  extin- 
guished the  contingent  right  of  dower  of  the  wife  in  the  property.* 
Her  dower  was  extinguished  just  as  it  would  have  been  had  she 
joined  her  husband  in  an  absolute  conveyance  to  the  same  pur- 
chaser. In  like  manner,  if  one  executes  a  mortgage,  his  wife  not 
joining  in  it,  but  afterwards  his  wife  joins  him  in  a  conveyance  of 
the  land  to  a  third  person,  and  the  mortgage  is  foreclosed  against 
Buch  third  person  without  making  the  wife  of  the  mf)rtgagor  a 
party,  the  purchaser  under  foreclosure  will  take  the  land  free  from 
the  inchoate  dower  of  the  wife  of  the  mortgagor. ^ 

1422.  In  those  States  where  the  common  law  doctrine  of 
dower  is  changed,  and  husband  and  wife  are  made  wholly  inde- 
pendent of  each  other  as  to  their  rights  of  property,  the  wife  is 
not  a  necessary  party.^     If  she  has  no  interest  and  makes  no  claims 

1  Fletcher  v.  Holmes,  32  Ind.  497;  Eth-  *  Calder  v.  Jenkins,  16  N.  Y.  Supp. 
eridge  r.  Vernoy,  71  N.  C  184-186.     The     797. 

Indiana  case  is  overriileil  in  later  cases  in  ^  Boonim  v.  Tucker  (N.  J.),  26  Atl.  Rep. 

that  State.     May  v.  Fletcher,  40  Ind.  .575;  456;  Hinchman  v.  Stiles,  9  N.  J.  Eq.  361  ; 

Barr  i-.  Vanalstine,  120  Ind.  590,  22  N.  E.  Chiher  v.  Weston,  27  N.  J.  Eq.  435;  At- 

Rep.  965.  water  v.  West,  28  N.  J.  Eq.  361  ;  Mount 

2  Bracketty.Banni,  50 N.Y.  8;  Merchants'  v.  Manhattan  Co.  43  N.  J.  Eq.  25,9  Atl. 
Bank  v.  Thom^on,  55  N.  Y.  7  ;  Kittle  v.  Eep.  117,  44  N.  J.  Eq.  297,  18  Atl.  Rep.  80; 
Van  Dyck,  1  Saudf.  Ch.  76;  Bell  t-.'Mayor  Hoofrlaud  v.  Watt,  2  Sandf.  Ch.  148;  El- 
of  New  Yoik,  10  Paige,  49;  Mills  v.  Van  mendorf  v.  Lockwood,  57  N.  Y.  322;  Man- 
Voorhies,  20  N.  Y.  412,  415;  Mavrich  v.  hattan  Co.  v.  Eversion,  6  Paige,  457;  Car- 
Grier,  3  Nev.  52,  93  Am.  Dec.  373.  ter  r.  Walker,  2  Ohio  St.  339. 

3  Baker  v.  Scott,  62  111.  86;  Sheldon  u.  See,  however,  Littlefield  v.  Crocker,  30 
Pattenson,  55  111.  507;  Merchants'  Bank  v.  Me.  192. 

Thomson,  55  N.  Y.  7 ;  Lewis   v.   Smith,  9        6  Miles  v.  Smith,  22  Mo.  502 ;  Thornton 
N.  Y.  502,  11  Barb.  152,  61    Am.  Dec.  706;    v.  Pigg,  24  Mo.  249  ;  Powell  v.  Ross,  4  Cal. 
Moomey  v.  Maas,  22  Iowa,  380,  92   Am.     197. 
Dec.  395. 

342 


WHO   ARE   THE   NECESSARY   OR   PROPER  PARTIES.      [§§  1423,  1424. 

of  interest,  she  should  not  be  made  a  party.^  The  wife  of  the 
mortgagor  who  has  released  her  interest  in  tlie  mortgage,  and  then 
joined  her  husband  in  conveying  the  equity  of  redemption  to  a  pur- 
chaser, can  have  no  possible  interest  in  the  land,  and  therefore  is 
not  a  proper  defendant.  Of  course,  if  the  mortgaged  estate  be  the 
separate  property  of  a  married  woman,  she  is  then  owner  of  the 
equity  of  redemption,  and  as  such  is  a  necessary  party .^  The  de- 
fendant cannot  take  the  objection  that  his  wife,  who  joined  in  the 
execution  of  the  mortgage,  is  not  joined  as  a  party. ^ 

1423.  If  the  premises  mortgaged  are  subject  to  a  homestead 
right,  the  wife  should  be  made  a  party .^  If,  however,  the  mort- 
gage was  given  to  secure  the  purchase-money  and  the  wife  did  not 
join  in  it,  she  is  not  a  necessary  party  by  reason  of  the  homestead 
right  ;  such  a  mortgage  is  valid  and  not  subject  to  the  homestead 
right.^  A  wife  who  has  joined  in  a  mortgage  releasing  her  home- 
stead rights  is  not  a  necessary  party  to  a  foreclosure  suit  by  reason 
of  such  homestead.^  If  for  any  reason  the  mortgage  is  paramount 
to  the  right  of  homestead,  the  mortgagor's  wife  is  not  a  necessary 
though  a  proper  party  by  reason  of  such  right.'^  When  the  mort- 
gagor has  become  a  bankrupt,  and  in  his  schedule  claims  the  mort- 
gaged premises  to  be  his  homestead,  he  must  be  made  a  party  de- 
fendant in  proceedings  to  foreclose  the  mortgage.  It  is  not  sufficient 
to  make  the  assignee  in  bankruptcy  a  party  unless  the  mortgagor 
had  executed  the  mortgage  in  such  a  form  as  to  effectually  cut  off 
his  right  of  homestead.^ 

1424.  Husband.  —  In  an  action  to  foreclose  a  mortgage  exe- 
cuted by  husband  and  wife  on  the  separate  estate  of  the  wife,  the 

1  Stevens  ih  Campbell,  21  Tnd.  471.  wife's  homestead  and  dower  rights,  the  sale 

2  Hill  V.  Edmunds,  5  De  G.  &  S.  603.  does  not  even  pass  the  husband's  interest. 

3  Powell  17.  Ross,  4  Cal.  197.  Atkinson   v.    Gowdy,   8   S.  W.   Rep.  698; 
«  Sargent  v.  Wil-on,  5  Cal.  504';  Revalk  Tong  v.  Eifort,  80  Ky.  152 ;  Thorn  v.  Dar- 

V.  Kraemer,  8  Cal.  66,  68  Am.  Dec.  304;  lington,  6  Bush,  448;  Wing  v.  Hayden,  10 

Moss  I'.  Warner,  10  Cal.  296;  Mabury  v.  Bush.  276. 

Ruiz,    .58    Ciil.    11  ;    Watts    v.    Gallagher,  5  Amphlett   v.   Hibbard,   29   Mich.  298. 

97  Cal.  47,  31  Pac.  Rep.  626  ;  Hefner  v.  Ur-  Christiancy,  J.,  said  :  "  We  see  no  substan- 

ton,  71  Cal.  479,  12  Pac.  Rep.  486;  Stock-  tial  ground  for  requiring  her  to  be  made  a 

ton  Bldg.  &  Loan  Ass'n  v.  Chalmers,  75  Cal.  party,  nor  can  we  see  any  such  substantial 

332,  17  Pac.  Rep.  229  ;  Morris  v.  Ward,  5  benefit  to  arise  from  such  a  requirement  as 

Kans.  239.  would  counterbahince  the  embarrassments 

In  Kentucky  a  statute  provides  that  no  which  would  arise  from  such  a  rule." 

mortgage  or  release  of  a  homestead  e.xemp-  ^  Townsend  Sav.    Bank    v.    Epping,   3 

tion  shall  be  valid  unless  subscribed  by  both  Woods,  390. 

husband   and  wife;  G.   S.  ch.  38,  art.  13,  "^  Connecticut  Mat.  Life  Ins.  Co.  y.  Jones, 

§  13 ;  and  it  is  held  that  where  the  wife  did  1  McCrary,  388. 

not  join  in  the  mortgage,  although,  on  fore-  *  Dendel  v.  Sutton,  20  Fed.  Rep.  787. 
closure,  the  homestead  is  sold  subject  to  the 

343 


§  1425.] 


OF  PARTIES  DEFENDANT. 


husband  is  a  proper  co-defendant,  both  by  reason  of  his  interest 
in  the  land,  and  in  some  cases  by  his  personal  liability  on  the  note.^ 
But  in  those  States  where  the  interests  of  husband  and  wife  are 
made  completely  separate  and  independent  as  to  the  property  they 
respectively  own,  there  is  no  good  reason  for  joining  the  husband  in 
such  case  unless  he  has  become  personally  responsible  for  the  debt, 
and  a  personal  judgment  is  sought  against  him;^  and  of  course, 
when  not  a  necessary  party  himself,  his  heirs  or  personal  represen- 
tatives are  not  necessary  parties  to  a  suit  brought  after  his  deatli.^ 

Upon  the  decease  of  the  husband  his  personal  representative  may 
be  made  a  party  to  such  action  ;  and  he  is  a  necessary  party  if  the 
debt  secured  was  the  debt  of  the  husband.* 

1425.  All  subsequent  mortgagees,  as  well  as  other  incum- 
brancers, should  be  made  parties  to  the  action,  or  they  may  after- 
wards redeem  ;  but  they  are  not  necessary  parties.^  The  assignees 
of  subsequent  mortgagees  are  parties  as  necessary  as  the  original 
mortgagees.^      If  the  entire  interest  is  assigned,  the  mortgagee  is 


1  Wolf  V.  Banning,  3  Minn.  202  ;  Mav- 
rich  V.  Grier,  3  Nev.  52,  93  Am.  Dec.  373 ; 
Andrews  v.  Swanton,8l  Ind.  474. 

2  Building  Asso.  ?;.  Camman,  11  N.J.  Eq. 
382  ;  Thornton  v.  Pigg,  24  Mo.  249  ;  Rid- 
dick  V.  Walsli,  1.5  Mo.  .519,  538  ;  Marshall  i-. 
Marshall,  86  Ala.  383,  5  So.  Kep.  475  ;  Kim- 
brell  V.  Rogers,  90  Ala.  339,7  So.  Rep.  241. 

3  Building  Asso.  v.  Camman,  11  N.  J. 
Eq.  382. 

4  Mebane  v.  Mebaue,  80  N.  C.  34,  44  Am. 
Dec.  102. 

5  New  York:  Peabody  v.  Roberts,  47 
Barb.  91  ;  Franklyn  v.  Hayward,  61  How. 
Pr.  43  ;  Arnot  v.  Post,  6  Hill,  65 ;  Waller 
V.  Harris,  7  Paige,  167  ;  Vanderkemp  v. 
Shelton,  11  Paige,  28.  California:  Carpen- 
tier  V.  Brenham,  40  Cal.  221,  50  Cal.  549; 
Hayward  v.  Stearns,  39  Cal.  58,  60;  Dav- 
enport V.  Turpin,  43  Cal.  597,  601  ;  Car- 
pentier  v.  Williamson,  25  Cal.  161  ;  Schadt 
V.  Heppe,  45  Cal.  433,  437.  Iowa:  Gower 
V.  Winchester,  33  Iowa,  303 ;  Newcomb  v. 
Dewey,  27  Iowa,  381;  Street  v.  Beal,  16 
Iowa,  68,  55  Am.  Dec.  504  ;  Chase  v.  Ab- 
bott, 20  Iowa,  154  ;  Heimstreet  v.  Winnie, 
10  Iowa,  430;  Anson  v.  Anson,  20  Iowa,  55, 
89  Am.  Dec.  514;  Johnson  v.  Harmon, 
19  Iowa,  56;  Donnelly  v.  Rusch,  15  Iowa, 
99  ;  Semple  v.  Lee,  13  Iowa,  304  ;  Ten  Eyck 
V.  Casad,  15  Iowa,  524;  Crow  v.  Vance,  4 
Iowa,  434;  Veach  v.  Schaup,  3  Iowa,  194; 

344 


Bates  V.  Rnddick,  2  Iowa,  423,  65  Am.  Dec. 
774.  See  this  last  case  for  a  full  discussion 
of  the  point.  Illinois:  Kenyon  v.  Shreck, 
52  111.382;  Augustine  ?;.  Doud,  1  Bradw. 
588.  Indiana:  Patt'son  v.  Shaw,  6  Ind. 
377;  Hosford  v.  Johnson,  74  Ind.  479; 
Mack  V.  Grover,  12  Ind.  254;  Meredith  v. 
Lackey,  16  Ind.  1;  Murdock  v.  Ford,  17 
Ind.  52;  McKernan  v.  Neff,  43  Ind.  503; 
^tua  L.  Ins.  Co.  v.  Finch,  84  Ind.  301;  Bu- 
chanan V.  Berkshire  L.  Ins.  Co.  96  Ind.  510. 
Maryland :  Leonard  i'.  Groome,  47  Md  499  ; 
Johnson  v.  Hambleton,  52  Md.  378  ;  Harris 
V.  Hooper,  50  Md.  537.  Kentucky:  Cooper 
V.  Martin,  1  Dana,  23,  25;  Roney  v.  Bell,  9 
Dana,  3.  Alabama :  Wiley  v.  Ewing,  47 
Ala.  418.  Mississippi:  Brown  v.  Nevitt, 27 
Miss.  801.  New  Jersey :  Vanderveer  v.  Hol- 
comb,  17  N.  J.  Eq.  87;  Atwater  v.  West, 
28  N.  J.  Eq.  361  ;  Gould  v.  Wheeler,  28  N. 
J.  Eq.  541.  Texas:  Webb  v.  Maxau,  11 
Tex.  678.  Minnesota  :  Rogers  v.  Holyoke, 
14  Minn.  22.  In  Tennessee  it  is  held  that 
subsequent  mortgagees  are  bound,  though 
not  made  parties,  if  there  was  no  collusion 
between  the  parties  to  the  bill,  or  other  spe- 
cial ground  of  equity.  Rowan  v.  Mercer, 
10  Humph.  359. 

6  Swift  V.  Edson,  5  Conn.  531  ;  Vander- 
kemp V.  Shelton,  11  Paige,  28,  Clarke,  351 ; 
Bigelow  V.  Davol,  16  N.  Y.  Supp.  646. 


WHO   ARE   THE   NECESSARY    OR   PROPER   PARTIES.  [§  1426. 

no  longer  a  proper  party,  but  the  assignee  becomes  such  in  his 
place. 1  The  assignee  in  bankruptcy  of  the  subsequent  mortgagee 
must  be  made  a  party  to  the  suit,  or  be  will  have  the  rigiit  to 
redeem.^ 

If  the  plaintiff  be  himself  the  owner  of  a  second  mortgage  upon 
the  same  property,  he  should  set  out  this  fact  in  his  comj)laint. 
He  cannot,  without  such  reference  in  the  complaint  or  exception 
in  the  judgment,  require  bids  to  be  made  subject  to  his  second 
mortgage.^  A  junior  mortgagee  whose  mortgage  has  never  been 
recorded,  and  of  which  the  senior  mortgagee  has  no  notice,  need 
not  be  made  a  party  to  the  hitter's  foreclosure  suit.^ 

An  assignee  of  a  mechanic's  lien  is  a  necessary  party  to  a  suit  to 
foreclose  a  mortgage  given  after  the  lien  commenced,  although  the 
mortgagee  had  no  knowledge  of  its  existence,  and  the  mortgage 
was  recorded  before  the  commencement  of  statutory  proceedings  to 
enforce  the  lien.^ 

1426,  A  subsequent  mortgagee  who  has  assigned  the  mort- 
gage, although  he  has  not  indorsed  the  note,  is  not  pi-imd  facie  a 
necessary  party  ;^  nor  is  he  although  the  assignment  shows  that  he 
assigned  the  mortgage  as  collateral  security^  But  when  he  has 
assigned  the  mortgage  merely  as  collatural  security,  it  is  desirable, 
at  least,  that  he  should  be  made  a  party;  because,  if  not  assigned 
for  its  full  value,  he  has  still  an  interest  in  it;  and  he  may  in  fact 
be  able  to  show  that  the  debt  for  which  he  has  assigned  the  mort- 
gage has  been  paid,  and  that  he  is  really  the  only  one  beneficially 
interested  in  the  security.^  The  better  practice,  therefore,  is  to 
make  the  assignor  of  the  mortgage  a  party,  whenever  it  appears 
either  from  the  assignment  or  otherwise  that  he  has  still  an  interest 
in  the  security.^ 

Except  by  reason  of  his  personal  liability,  a  mortgagee  who  has 
assigned  the  mortgage  absolutely,  and  indorsed  the  note,  is  not  a 
proper  defendant  in  a  suit  to  foreclose  the  mortgage.  The  action 
should  be  against  the  mortgagor  without  joining  him,  for,  though 
he  is  liable  to  the  holder  of  the  mortgage  as  indorser,  and  might  be 

1  Pullen  V.  Heron  Min.  Co.  71  N.  C.  Harwell  v.  Lehman,  72  Ala.  344;  Western 
567.  Reserve  Bank  v.  Potter,  Clarke,  432. 

2  Avery  v.  Ryerson,  34  Mich.  362.  "'  Woodruff  y.  Depue,  14  N.  J.  Eq.  168. 

3  HomcEopathic  Mut.  L.  Ins.  Co  v.  Six-  ^  Bard  j;.  Poole,  12  N.  Y.  495;  Daltou  v. 
bury,  17  Hun,  424.  Smith,  86  N.  Y.  176. 

*  Henderson  v.  Grammar,  66  Cal.  332;  ^  §1375;  Whitney  v.  M'Kinney,  7  Johns. 
Reel  V.  Wilson,  64  Iowa,  13,  19  N.  W.  Rep.  Ch.  144  ;  Kittle  v.  Van  Dyck,  1  Saudf.  Ch. 
814.  76;  Bloomer  u.  Stur^es,  58  N.  Y.  168,  175  ; 

5  Atkins  V.  Volmer,  21  Fed.  Rep.  697.  Aekerson  v.  Lodi   Branch  R.  R.  Co.  28  N. 

«  Walker  v.  Bank  of  Mobile,  6  Ala.  452  ;    J.  Eq.  542. 

345 


§  1427.]  OF  PARTIES  DEFENDANT. 

joined  with  the  maker  in  a  suit  on  the  note,  he  has  nothing  to  do 
with  the  mortgaged  propertj',  and  cannot  be  a  party  to  the  fore- 
closure suit.^  But  vvliere  a  personal  judgment  may  be  had  against 
any  one  liable  for  the  mortgage  debt,  such  mortgagee  could  be 
joined  for  that  purpose.^ 

The  fact  that  a  deed  and  purchase-money  mortgage  misdescribed 
the  land,  and  on  discovering  the  mistake  the  vendor  executed  a  fur- 
ther deed  locating  the  land  as  it  should  have  been  described,  and 
at  the  same  time  the  parties  made  an  agreement  correcting  the 
mortgage,  and  confirming  it  as  an  incumbrance,  does  not  make  the 
mortgagor  a  necessary  or  proper  party  to  an  action  by  an  assignee 
to  foreclose  the  mortgage.  No  further  obligation  rested  upon  the 
mortgagee  after  the  correction  of  the  mistake.^ 

1427.  Assignee  of  note.  —  In  those  States  where  the  transfer 
of  the  note  or  bond  secured  by  the  mortgage  is  held  to  carry  with 
it  the  mortgage  security,  the  holder  of  the  note,  though  he  has  no 
formal  assignment  of  the  mortgage,  should  be  made  a  party  to  the 
bill;^  and  a  sale  made  without  joining  him  does  not  bar  his  right 
to  redeem,^  or  prevent  his  maintaining  an  action  against  the  pur- 
chaser to  foreclose  his  mortgage.''  In  accordance  with  this  princi- 
ple, after  a  mortgage  has  been  assigned  by  an  indorsement  upon  it, 
without  an  indorsement  of  the  note  or  bond  secured  by  it,  the  as- 
signor remains  the  real  holder  of  the  mortgage,  and  is  a  necessary 
party."  In  several  States  there  are  statutes  requiring  the  assignor 
to  be  made  a  party  "  when  the  thing  in  action  is  not  assignable  by 
indorsement,"  or  when  it  is  not  a  negotiable  instrument.  Under 
these  provisions  the  holder  of  a  mortgage  note  transferred  by  in- 
dorsement, or  by  delivery  when  payable  to  bearer,  may  be  made  a 
party  without  the  assignor  ;^  but  if  the  mortgage  debt  be  evidenced 
by  a  bond  or  non-negotiable  note,  which  is  transferred  by  delivery, 
although  the  mortgage  is  formally  assigned,  the  assignor  is  a  neces- 
sary party. ^  A  mortgagee  who  has  assigned  a  negotiable  note  with- 
out a  formal  assignment  of  the  mortgage  is  not  a  necessary  party. ^^ 

If  the  mortgage  secures  several  notes,  which  have  been  assigned 
and  are  held  by  different  persons,  to  a  suit  by  one  holder  to  enforce 

1  Sands  v.  Wood,  1  Iowa,  263.  5  Holliger  v.  Bates,  43  Ohio  St.  437. 

2  Nichols  V.   Randall,  .5   Minn.   304,  308;  6  Holliger  i'.  Bates,  43  Ohio  St.  437. 
Andrews  I'.  Gillespie,  47  N.  Y.  487;  Chris-  "^  Holdridpe  v.  Sweet,  23  lud.  118;  Bell 
tie  V.    Herrick,    1  Barb.  Ch.   254  ;  Ward  v.  v.  Shrock,  2  B.  Mon.  29. 

Han  Bokkelen,  2  Paige,  289.    And  see  Dela-        ^  Qower  v.  Howe,  20  Ind.  396. 

ware  Bank  f.  Jarvis,  20  N.  Y.  226.  ^  Holdridge    v.     Sweet,    23    Ind.     118; 

3  Haaren  i'.  Lyon.*,  9  N.  Y.  Supp.  211.  French  v.  Turner,  15  Ind.  59. 

*  Burton  v-  Baxter,  7  Blackf.  297 ;  Dew-        i°  Wilson  v.  Spring,  64  111.  14. 
ing  j;.  Scribner,  53  Vt.  1 . 

346 


WHO   ARE   THE  NECESSARY   OR   PROPER   PARTIES.  [§  1428. 

the  mortgnge,  tlie  holders  of  the  other  notes  should  be  made  parties. ^ 
A  decree  rendered  without  making  a  holder  of  a  note  a  party  does 
not  bar  him  from  a  subsequent  foreclosure.^  But  an  objection  that 
an  assignee  of  an  interest  in  the  mortgage  was  not  made  a  party  to 
the  foreclosure  suit  furnishes  no  ground  for  a  collateral  attack  upon 
the  decree  by  a  purchaser  of  emblements  upon  the  land  prior  to  the 
foreclosure  suit,^  Rut  in  Iowa  an  assignee  of  a  note,  though  not 
made  a  party,  is  affected  by  a  foreclosure  decree  obtained  by  the 
holder  of  an  earlier  maturing  note  secured  by  the  same  mortgage, 
and  his  only  remedy  is  to  make  statutory  redemption  from  the  fore- 
closure sale.^  When  a  junior  mortgagee  seeks  to  redeem  froui  a 
foreclosure  sale  under  a  senior  mortgage,  because  he  was  not  made 
a  party  to  the  suit,  he  must  show  that  he  was  the  owner  of  the 
mortgage  Avhen  the  suit  was  brought  to  foreclose  the  senior  mort- 
gage. If  such  junior  mortgagee  holds  his  mortgage  by  virtue  of  an 
assignment  of  the  mortgage  note,  without  any  written  assignment 
of  the  mortgage,  and  he  fails  to  show  that  such  assignment  was 
made  before  the  action  was  brought  to  foreclose  the  senior  mort- 
gage, he  cannot  redeem.^  If  the  assignment  has  not  been  recorded, 
the  assignee  need  not  be  made  a  party  to  the  suit,  unless  the  pLiin- 
tifT  has  notice  of  the  assignment  before  he  takes  his  decree.^  The 
assignee  in  such  case  is  bound  by  proceedings  to  which  his  assignor 
was  made  a  party .'^ 

If  a  bond  and  mortgage  under  foreclosure  are  ch^imed  by  a  third 
person,  he  may  be  made  a  party  on  his  own  application.  The  owner 
of  the  equity  in  such  case  may  have  to  pay  into  court  the  amount  of 
his  mortgage  debt,  and  may  compel  the  adverse  claimants  to  litigate 
their  rights  between  themselves.^ 

1428.  Upon  the  death  of  a  junior  mortgagee  his  personal 
representative  is  a  proper  party  to  a  bill  by  the  prior  mortgagee 
to  foreclose.  His  heir  has  no  interest  in  the  mortgage.^  If  such 
mortgagee  was  a  non-resident  of  the  State,  the  plaintiff  may  take 
out  administration  for  the  purposes  of  the  foreclosure  suit.^^ 

1  Delespine  v.  Cnmi^bell,  45  Tex.  628.  ^  Cannon  v.  Wright,  49  N.  J.  Eq.  17,  23 

2  Totld  V.  Creamer  (Neb.),  54  N.  W.  Rep.    Atl.  Rep.  285. 

674.  8  Van   Loan  v.   Squires,  23  Abb.  N.  C. 

3  Biitterman  v.  Albright,  122  N.  Y.  484,    230,  7  N.  Y.  Supp.  171. 

25  N.  E.  Rtp.  856.  ^  Whitla  v.  Hallidny,4  Dr.  &  War.  267  ; 

4  Hensley  v.  Whiffin,  54  Iowa,  555,  6  N.  Shaw  v.  McNish,  1  Barb.  Ch.  326  ;  Citi- 
W.  Rep.  725.  And  see  Kemerer  y.  Bournes,  zens' Nat.  Bank  v.  Dayton,  116  111.  257; 
53  Iowa,  172,4  N.  VV.  Rep.  521.  Pluminer  v.  Doughty,  58    Me.  341  ;  Lock- 

5  Shoemaker  v.  Austin  (Iowa),  54  N.  W.  man  v.  Reilly,  10  Abb.  N.  C.  351,  95  N.  Y. 
Rep.  1.37.  64. 

6  Dickerman  v.   Lust,    66  Iowa,  444,  23  1°  Lothrop's  Case,  33  N.  J.  Eq.  246. 
N.  W.  Rep.  916.  347 


§§  1429-1432.]  OF  PARTIES  DEFENDANT. 

1429.  After  default,  —  Incumbrancers  who  have  been  made 
parties  to  the  bill,  and  suffered  default,  cannot  comphiin  tliat  one 
of  them  was  not  duly  served  with  process,  when  afterwards  it  ap- 
pears that  the  property  lias  sold  for  a  sum  less  than  the  amount  due 
upon  the  mortgage.  The  defendant  not  served  can  alone  take  ad- 
vantage of  the  want  of  service.^ 

1430.  After  payment.  —  A  junior  mortgagee,  after  receiving 
full  satisfaction  for  his  debt,  though  not  made  a  party  to  a  foreclos- 
ure of  a  prior  mortgage,  has  no  right  of  redemption  which  he  can 
exercise  himself  or  transfer  to  another ;  and  the  rule  is  the  same  in 
case  his  mortgage  is  in  the  form  of  an  absolute  conveyance,  and  he 
has  upon  payment  conveyed  the  premises  at  the  request  of  the 
mortgagor  to  a  third  party.  He  cannot  invest  the  mortgagor  or  a 
third  party  with  a  right  to  redeem  when  he  himself  has  ceased  to 
have  that  right.^ 

1431.  The  only  right  of  a  junior  mortgagee,  who  has  not 
been  made  a  party  to  the  foreclosure  of  a  prior  mortgage,  is 
to  redeem  the  property  from  that  mortgage.  It  does  not  matter 
that  on  the  sale  of  the  property  under  the  foreclosure  of  the  prior 
mortgage  there  was  a  surplus  which,  with  the  consent  of  the  mort- 
gagor, was  paid  to  a  third  mortgagee  who  was  made  a  party  to  the 
suit,  and  the  property  subsequently  depreciated  so  that  tiiere  was 
no  value  above  the  first  mortgage.  The  middle  mortgagee  has  no 
claim  upon  the  surplus.  Whether  the  property  has  increased  or 
depreciated  in  value  since  tlie  sale  under  the  first  mortgage  does 
not  affect  his  right  to  redeem,  which  is  the  only  right  he  has  in  the 
matter.^ 

1431  a.  A  joint  and  several  maker  of  the  note  secured  should 
be  joined  as^  a  party,  although  the  mortgage  was  executed  by  an- 
other. The  judgment  should  settle  the  obligations  of  all  the  principal 
debtors.  This  is  especially  the  case  where  the  mortgage  has  been 
assigned  and  the  defence  to  the  note  could  only  be  enforced  by  a 
joint  cross-action  for  damages.^ 

1432.  A  guarantor  of  the  mortgage  debt  is  not  a  proper  party 
to  the  foreclosure  suit,  because  he  is  not  liable  to  the  holder  of  the 
mortgage  until  the  remedy  against  the  mortgagor  and  the  property 
mortgaged  is  first  exhausted.^     But  where  the  court  has  power  to 

1  Montgomery  iJ.  Tutt,  11  Cal.  307.  *  Dederick  v.  Barber,  44  Mich.  19,  5   N. 

2  McHenry  v.  Cooper,  27  Iowa,  137.  W.  Rep.  1064. 

8  McKernan  v.  Neff,  43  Ind.  .503;  Spur-  ^  Newton  v.  Egmont,  4  Sim.  574  ;  Gedje 
gin  V.  Adamson,  62  Iowa,  661,  18  N.  W.  v.  Matson,  25  Beav.  310;  Joy  i'.  Jacksou  & 
Rep.  293.  Mich.  Plank  Road  Co.  11  Mich.  155;  Bor- 

den V.  Gilbert,  13  Wis.  670. 

348 


WHO   ARE   THE   NECESSARY    OR   PROPER   PARTIES.  [§  14B3. 

decree  the  payment  of  any  deficiency  tliere  may  be  after  tlie  sale  of 
the  property,  as  well  against  a  third  person  as  against  the  mortga- 
gor, then  a  mortgagee  who  has  assigned  his  mortgage  and  guaranteed 
the  payment  of  it,  or  any  other  person  who  has  become  a  guarantor 
or  surety  of  the  debt,  is  a  proper  ^  though  not  a  necessary  ^  party  to 
a  suit  to  foreclose  the  mortgage.  One  who  has  guaranteed  that  the 
mortgage  debt  is  collectible  is  in  this  way  a  proper  party .^  But  in 
all  cases  when  the  collateral  undertaking  is  strictly  one  of  guar- 
anty, the  judgment  should  provide  that  execution  should  not  issue 
against  the  guarantor  until  an  execution  against  the  persons  prima- 
rily liable  has  been  returned  unsatisfied.^  Upon  a  guaranty  made 
by  the  holder  of  a  mortgage  upon  assigning  it,  that  the  mortgaged 
premises  are  sufficient  to  pay  the  debt,  and  that  the  mortgage  is 
collectible,  the  guarantor  is  not  liable  unless  the  assignee  makes 
a  diligent  foreclosure  of  the  mortgage.  Any  unreasonable  delay, 
such  as  the  lapse  of  nine  months  after  the  maturity  of  an  instal- 
ment of  the  mortgage,  to  foreclose  it,  will  discharge  the  guarantor.^ 

A  guarantor  of  "  collection "  is  not  generally  a  j)roper  party,^ 
because  no  obligation  arises  on  the  part  of  such  guaiantor  until 
there  is  found  to  be  a  deficiency  after  foreclosure;  "^  nor  is  a  surety 
for  the  provision  by  the  mortgagor  of  a  sinking  fund  to  be  invested 
for  the  payment  of  the  mortgage.^ 

A  State  which  has  indorsed  the  bonds  of  a  railroad  company, 
secured  by  a  statutory  mortgage,  is  not  considered  a  necessary  party 
to  a  suit  to  foreclose  the  mortgage.^ 

1433.  Collateral  to  guaranty.  —  And  the  courts  have  gone  still 
further  in  this  direction,  and  have  held  that  the  maker  of  a  collat- 
eral obligation  taken  by  the  guarantor  as  further  security  for  the 
amount  due  on  the  mortgage  is  a  proper  party  to  the  suit,  because 
the  holder  of  the  mortgage  is  entitled  in  equity  to  the  benefit  of 
the  collateral  undertaking,  and  to  have  a  decree  against  him  if  the 
proceeds  of  the  sale  are  insufficient. ^° 

1  §  1710  ;  Jarman   v.   Wiswall,  24  N.  J.        *  Leonard  v.  Morris,  9  Paige,  90. 

Eq.  267  ;  Bristol  v.  Morgan,  3   Edw.    Cii.  ^  Northern  Ins.  Co.  of  N.  Y.  v.  Wright, 

142;  Uushmore  v.  Miller,  4  Edw.  Ch.  84;  13  Hun,  166,   19  Alb.   L.    J.  378;  Craig  v. 

Jones  V.  Stienbergh,  1  Barb.  Ch.  2.5'0;  Luce  Farkis,  40  N.  Y.  181, 100  Am.  Dee.  469. 

V.  Iliuds,  Chuke,  4.'J3  ;  Fond  du  Lac  Har-  »  Baxter  v.  Smack,  17  How.  Fr.  183. 

row  Co.  ('.  Haskins,  51   Wis.  135,  8   N.  W.  ''  Johnson?;.  Shepard,  35  Mich.  115. 

Rep.    15;  Thorne  y.  Newby,  59   How.  Fr.  *  Joy  y.  Jackson  &,  Mich.  Fhiuk  Roiid  Co. 

120.  11  Mich.  155. 

2  Cases  above  cited,  and  Stiger  v.  Ma-  ^  Young  v.  Montgomery  &  Eiifauhi  R. 
hone,  24  N.  J.  Eq.  420,  430.  R.  Co.  2  Woods,  606,  3  Am.  L.  T.  R.  (N. 

•■'  Leonard  v.  Morris,  9  Faige,  90;  Curtis    S.)9. 
V.  Tyler,  9  Faige,  432.  w  Curtis  v.  Tyler,  9  Faige,  432. 

349 


§§  1434-1435.]  OF  PARTIES   DEFENDANT. 

The  heirs  and  devisees  of  a  deceased  guarantor  cannot,  how- 
ever, be  made  parties  to  the  suit  for  the  purpose  of  reaching  real 
estate  that  has  come  to  them  from  the  deceased  to  satisfy  an 
anticipated  de6ciency  in  the  mortgaged  property  to  meet  tlie  debt.^ 

1434.  Indorser  of  note.  —  Except  for  the  purpose  of  obtain- 
ing a  personal  judgment  against  one  who  is  merely  an  assignor 
or  indorser  of  a  promissory  note  secured  by  the  mortgage,  he  is 
neither  a  necessary'  nor  proper  party  to  an  action  agriinst  the 
maker  to  foreclose  the  mortgage.  The  indorser  is  concluded  by 
the  amount  for  which  the  property  is  sold  under  the  decree  of 
foreclosure,  and  cannot  afterwards  object  in  a  suit  against  him- 
self on  his  indorsement  that  he  was  not  a  party  to  the  foreclosure 
suit. 2  And  so  also  the  maker  of  a  note  which  is  secured  by  a 
mortgage  executed  by  another  is  not  a  necessary  party,  and,  if  no 
personal  claim  is  made  against  him,  is  not  a  proper  part}'  to  the 
suit  to  foreclose.^ 

A  surety  who  has  paid  the  mortgage  note,  and  thereby  become 
the  owner  of  the  mortgage  debt,  should  be  made  a  party,  or  he  will 
not  be  bound  by  the  proceedings.*  If  a  surety  of  the  mortgage 
debt  is  made  a  party  defendant,  and  dies  pendente  lite,  the  action 
may  proceed  without  making  his  representative  a  party .^ 

1434  a.  In  proceedings  to  foreclose  a  mortgage  given  by  a 
trustee,  his  cestui  que  trust  is  not  ordinarily  a  necessary  party. 
If,  for  any  reason,  the  presence  upon  the  record  of  the  cestui  que 
trust  as  a  party  defendant  is  desirable,  a  motion  should  be  made 
that  he  be  brought  in.  The  bill  is  not  demurrable  because  of  the 
non-joinder  of  the  cestui  que  trust.^ 

1435.  Joint  mortgagees. —  In  a  bill  to  foreclose  by  one  of  two 
joint  mortgagees,  the  other  mortgagee  must  be  made  a  party,  either 
by  joining  in  the  bill,  or,  if  he  declines  to  do  this,  as  a  respondent.'^ 
But  where  a  mortgage  secures  several  notes  falling  due  at  different 

1  Leonard  v.  Morris,  9  Paige,  90.  Davis  v.  Converse,  35  Vt.  .'iOS,  where   the 

2  Market  v.  Evans,  47  lud.  326.  In  Call-  principal  was  held  a  pro])er  party  by  rea- 
fomia  it  is  held  that  it  is  proper  under  the  son  of  the  accounting  before  tlie  master. 
Practice  Act  to  join  the  mortgagor  and  and  the  court  for  that  reason  might  com- 
indorser  as  defendants.  Eastman  v.  Tur-  pel  his  being  brought  in  if  the  objection 
man,   24   Cal.   379.     So   in  Michigan   any  was  made  in  season. 

person  liable  for  the  debt  may  be  joined.  *  Coleman  v.  Hunt,  77  Wis.  263,  45  N. 

How.  St.  §   6704  ;  Michigan  State  Bank  v.  W.  Rep.  1045. 

Trowbridge,  92  Mich.  217,  52  N.  W.  Rep.  ^  Daniels  v.  Moses,  12  S.  C.  130. 

632.  6  Harlem  Coop.   Bldg.    Asso.  v.   Quinn, 

3  Kearsing  v.  Kilian,  IS  Cal.  491.    And  10  N.  Y.  Supp.  682. 

see  Deland  v.  Mershon,  7  Iowa,  70;  Wilker-  ^  Hopkins  v.  Ward,  12  B.  Mon.  185.  As 
son  V.  Daniels,  1  Greene  (Iowa),  179;  De  to  simultaneous  mortgages,  see  Cain  v. 
Cottes  V.  Jeffers,  7  Fia.  284.     See,  however,    Hanna,  63  Ind.  408. 

850 


WHO   ARE   THE   NECESSARY   OR   PROPER   PARTIES.  [§  1436. 

times,  in  a  suit  by  the  holder  of  one  of  the  notes  to  foreclose  the 
mortgage,  the  holder  of  a  note  subsequently  falling  due  is  not  a 
necessary  party;  but  if  not  made  a  party,  of  course  his  rights  are 
unaffected  by  the  decree  and  sale.^  The  mortgagee  not  made  a 
party  may  subsequently  file  his  complaint  to  foreclose,  and  may 
make  the  debtor  and  all  the  other  mortgagees  parties,  and  may  con- 
test the  claims  of  the  latter.^  If  there  be  two  mortgages,  one  col- 
lateral to  the  other,  both  mortgagors  should  be  made  parties  to  the 
bill  to  foreclose ;  for  the  mortgagor  in  the  collateral  mortg;ige  has  a 
right  to  redeem,  and  it  is  his  interest  that  his  property  should  be 
called  upon  to  satisfy  as  small  a  deficiency  as  possible.^ 

1436.  Judgment  creditors.  —  A  subsequent  judgment  creditor 
of  the  mortgagor  having  a  lien  upon  the  property  should  be  made 
a  party  to  tlie  proceedings,  otherwise  he  may  redeem  after  the  sale, 
but  he  is  not  a  necessary  defendant."^  He  cannot,  however,  have 
the  sale  set  aside  by  petition  in  the  foreclosure  suit.^  There  has 
been  some  question  as  to  vrhat  acts  are  necessary  to  constitute  this 
lien,  and  when  it  accrues.  A  judgment  is  generally  a  lien  from  the 
time  it  is  docketed,  and  no  execution  or  sale  is  necessary  to  estab- 
lish a  title  to  redeem.  The  judgment  itself  carries  with  it  the 
right  of  redemption,  and  therefore  makes  the  creditor  a  necessary 
party .^  In  case  the  mortgage  be  for  purchase-money,  no  lien  by 
subsequent  judgment  would  attach,  and  therefore  the  creditor  is 
without  remedy  whether  made  a  party  or  not.'^  And  so  also  if  the 
judgment  creditor  has  not  perfected  the  proceedings  under  his  judg- 
ment, so  as  to  have  made  it  a  charge  upon  the  debtor's  land,  he  is 
not  a  proper  party. ^  A  creditor  of  the  mortgagor  who  has  attached 
the  equity  of  redemption  should  be  made  a  party  ;  ^  as  also  one  who 
has  levied  an  execution  upon  it,  though  the  time  allowed  the  debtor 
to  redeem  has  not  expired. i*^  But  a  creditor  of  the  mortgagor  who 
prior  to  the  foreclosure  has  levied  an  execution  upon  growing 
crops,  but  has  not  removed  them  at  the  time  of  the  foreclosure,  is 

1  Harris  v.  Harlan,  14  Ind.  439  ;  Murdock  Hooper,  50  Md.  537  ;  De  Laslimuit  r.  Sell- 
f.  Ford,  17  Ind.  52.  wood,  10  Oreg.  319;    Moon  v.    Wellford, 

2  Goodall  V.  Mopley,  45  Ind.  355.  84  Va.  34,  4  S.  E.  Eep.  527. 

3  Stokes  V.  Clendon,  3  Swans.  150.  6  p,-att  v.  Frear,  13  Wis.  462. 

*  Sliarpe   v.   Scarborough,    4  Ves.    538;  ^  Braiuard  f.  Cooper,  10  N.  Y.  356. 

Stonehewer  v.  Thompson,  2  Atk.  440;  Bla-  ''  Person  v.  Merrick,  5  Wis.  231. 

grave  v.    Clunn,  2    Vern.   576;    Henry   v.  »  Cork  r.  Russell,  L.  R.  13  Eq.  210. 

Smith,  2  Dr.  &  War.   381,390;  Adams   v.  ^  Dickinson  v.  Lamoille  Co.  Nat.  Bank, 

Paynter,  1  Coll.  530 ;  Winebrener  v.  .John-  12  Fed.  Rep.  747  ;  Lyon  ;'.  Sanford,  5  Conn, 

son,    7    Abb.  N.   S.  Pr.  202;   Brainard    v.  544.    See,  also,  Carter  y.  Champion,  8  Conn. 

Cooper,  10  N.  Y.  356:  Proctor  v.  Baker,  549,  21  Am.  Dec.  695.     Cow/ra,  sec  Nichols 

15  Ind.  178;  Muir   v.  Gibson,  8    Ind.   187:  v.  Ilol-ate,  2  Aik.  (Vt.)  138. 

Gaines  i;.  Walker,  16  Ind.  361  ;  Harris  v.  ^°  BuUard  v.  Leach,  27  Vt.  491. 

351 


§§  1-436  a,  1437.]         of  parties  defendant. 

not  a  necessary  party  to  the  foreclosure  suit.  Neither  is  the  pur- 
clmser  at  such  sale,  for  he  acquired  no  interest  in  the  land  by  his 
purchiise.^ 

A  judgment  rendered  against  a  person  prior  to  his  purchase  of 
land  is  not  generally  a  lien  upon  it ;  and  even  a  mortgage  given 
at  the  time  of  the  purchase  by  him  for  the  purchase-money  would 
not  be  affected  by  it ;  and  upon  the  foreclosure  of  such  a  niortg.ige, 
though  the  judgment  creditor  be  not  made  a  party  to  the  suit,  if 
the  property  sell  for  less  than  the  moitgage  debt,  the  purchaser 
obtains  a  valid  and  irredeemable  title.^ 

A  jiulgment  creditor  whose  claim  accrued  while  the  mortgaged 
premises  wei'e  subject  to  a  homestead  exemption  has  no  lien 
thereon,  and  is  therefore  not  a  necessary  party  to  proceedings  to 
foreclose  the  mortgage  begun  while  the  homestead  right  exists.^ 

1436  a.  A  general  creditor  having  no  lien  upon  the  property 
is  not  a  proper  party  to  a  foreclosure  suit,*  and  cannot  inter- 
vene.^ In  a  foreclosure  suit  upon  a  mortgage  given  by  a  street 
railroad  company,  a  village  which  had  granted  the  company  permis- 
sion to  lay  its  tracks  in  its  streets  asked  to  be  made  a  party  defend- 
ant, on  the  ground  that  the  company  had  been  required  to  give  its 
bond  conditioned  to  indemnify  the  village  from  all  damages  sus- 
tained from  the  building  of  the  road,  and  a  suit  on  the  bond  was 
pending  for  a  breach  of  the  condition  thereof.  It  was  held  that  the 
village  was  not  a  proper  party  to  the  foreclosure  suit,  and  its  mo- 
tion was  denied.  The  raih-oad,  after  its  construction,  took  subject 
to  the  conditions  contained  in  the  consent  to  the  laying  of  the 
tracks,  and  the  purchaser  at  the  foreclosure  sale  will  take  subject  to 
the  same  conditions.'' 

1437.  Judgment  after  decree.  —  A  creditor  having  a  judg- 
ment rendered  before  the  sale,  but  subsequent  to  the  decree,  may 
redeem  at  any  time  befoi-e  the  sale  by  virtue  of  his  lien.  But 
after  the  sale  the  right  is  as  effectually  barred  as  if  the  creditor 
had   been  made  a  party  to  the  proceeding.     Neither  has  such  cred- 

1  Batterman  v.  Albright,  122  N.  Y.  484,  ^  Gardner  v.  Lansing,  28  Hnn,  413;  Mc- 
25  N.  E.  Rep.  856.  Miirtry  v.   Montgomery    Masonic    Temple 

2  De  Saussure  v.  Bollmanu,  7  S.  C.  329.  Co.  86  Ky.  286,  5  S.  W.  Rep.  570. 

3  Sutherland  v.  Tyner,  72  Iowa,  232,  33  5  Qmalia  &  St.  L.  Ry.  Co.  v.  O'Neill,  81 
N.  W.  Rep.  645.  Neither  is  such  judgment  Iowa,  463,  46  N.  \V.  Rep.  1100  ;  Herring 
creditor  entitled  to  redeem  the  homestead  v.  Railroad  Co.  103  N.  Y.  340,  12  N.  E. 
from    the    mortgage    sale.      Sutherland    v.  Rep.  763. 

Tyner,  72  Iowa,  232,  33  N.  W.  Rep.  645  ;        ^  Farmers'  Loan  &.T.  Co.  v.  New  Rochelle 
Grant  r.  Parsons,  67   Iowa,  31,  24  N.   W.    R.  R.  Co.  10  N.  Y.  Sufjp.  810. 
Rep.  578. 

352 


WHO   ARE   THE   NECESSARY   OR   PROPER   PARTIES.      [§§  1438-1439. 

itor  any  right  to  come  in  by  petition,  and  make  defence   to  the 
suit.i 

A  creditor  holding  a  judgment  rendered  prior  to  the  mortgage  is 
not  a  proper  party  to  a  suit  to  foreclose  it.^ 

1438.  Bankrupt.  —  If  the  owner  of  the  equity  of  redemption 
becomes  bankrupt,  and  his  estate  is  assigned  under  the  law,  he 
should  not  generally  be  made  a  party,  for  he  has  no  longer  any 
right  of  redemption  in  it,  but  his  assignee  should  be  made  a  party 
in  his  place.^  If  the  bankruptcy  occur  after  the  foreclosure  suit 
lias  been  commenced,  he  should  suggest  his  bankruptcy  and  move 
for  a  continuance  of  the  suit,  to  await  the  termination  of  the  pro- 
ceedings in  bankruptcy,  when  he  may  plead  his  discharge  if  any 
judgment  is  sought  on  his  personal  liability.  The  assignee  may, 
however,  appear  and  allow  the  proceedings  to  go  on,  so  far  as  the 
foreclosure  and  sale  of  the  property  is  concerned.  But  unless  the 
proceedings  are  continued  in  the  state  court  upon  motion,  or  are 
restrained  by  the  bankruptcy  court,  they  may  proceed  to  judg- 
ment and  sale."^  An  assignee  in  bankruptcy,  to  whom  land  subject 
to  a  mortgasfe  has  been  assigned  before  the  foreclosure,  is  a  neces- 
sary  party  to  proceedings  to  foreclose  the  mortgage.^ 

1438  a.  A  receiver,  appointed  by  the  court,  of  the  property  of 
a  corporation,  partnership,  or  individual,  upon  the  foreclosure  of  a 
mortgage  upon  the  property,  should  be  made  a  party  defendant  in 
his  official  capacity  ;  but  if  made  a  party  in  his  individual  capacity, 
he  cannot  stand  by  without  objecting,  and  after  a  decree  of  sale 
claim  to  be  heard  against  the  proceedings  on  the  ground  that  he 
was  not  made  a  party  as  receiver.^ 

1439.  Persons  having  interests  in  the  property  paramount 
to  the  mortgage  sought  to  be  foreclosed  are  generally  neither  ne- 
cessary nor  proper  parties  to  the  suit,  because  the  only  proper  object 
of  the  proceedings  is  to  bar  all  rights  subsequent  to  the  mortgage. 
The  decree  can  have  no  effect  upon  the  rights  of  parties  having 
priority,  whether  they  are  made  parties  to  the  action  or  not.''' 

1  People's  Bank  v.  Hamilton  Manuf.  Co.  N.  Y.  652 ;  Cleveland  v.  Boerum,  23  Barb. 
10  Paige,  481.                 ■  201. 

2  Hendry  v.  Quinan,  8  N.  J.  Eq.  534.  5  Qstrander  v.  Hart,  8  N.  Y.  Supp.  809. 

3  See  §§1231-1236 ;  Kerrick  v.  Saffery,  •  6  Kirkpatriek  v.  Corning,  38  N.  J.  Eq. 
7  Sim.  317  ;  Lloyd  v.  Lander,  5  Madd.  282 ;  234. 

Eichards  v.  Cooper,  5  Beav.  304  ;  Anon.  10  ^  See  §  1440  ;   England  :  Rose  v.  Page,  2 

Paige,  20;  Wiilink  u.  Morris  Canal  &  Bank-  Sim.  471  ;   Shepherd  r.  Gwinnet,  3  Swans, 

ing  Co.  4  N.  J.  Eq.  377.  151;    Richards    v.   Cooper,    5   Beav.   304; 

*  Eysterv.  Gaff,  91   U.   S.  521,  525,  13  Delabere   v.   Norwood,   3    Swans.    144,   n. 

Albany  L.  J.  272 ;  Oliver  v.  Cunningham,  United   States :    Jerome   v.    McCuster,    94 

6  Eed.  Rep.  CO;  Lenihan  v.  Hamaun,  55  U.  S.  734;  Woodworth  v.  Blair,  112  U.  S. 

VOL.  II.                   23  353 


§  1439.] 


OF   PARTIES   DEFENDANT. 


In  some  cases  prior  mortgagees  are  made  parties  to  the  bill,  so 
that  the  court  may  with  their  consent  order  a  sale  of  the  whole 
estate,  and  thus  make  a  good  and  complete  title  in  the  purchaser. ^ 
Sometunes  a  prior  mortgagee  is  made  a  party  to  the  suit,  witli  a 
view  to  his  assenting  to  a  decree  for  the  sale  of  the  whole  estate,  in 
which  case  his  mortgage  is  first  paid,  and  the  proceeds  then  applied 
to  the  second  mortgage.^    In  such  case  the  legal  presumption  is  that 

8,  5  Sup.  Ct.  Rep.  6;  Hagan  v.  Walker,  14  Mich.  468,  11  N.  W.  Rep.  275;  Dickerson 
How.  29,  37;  Wabash,  St.  L.  &  P.  Ry.  Co.  v.  Uhl,  71  Mich.  398,  39  N.  W.  Rep.  472. 
V.  Central  Tnist  Co.  22  Fed.  Rep.  138;  Indiana:  Pattison  v.  Shaw,  6  lud.  377; 
Dial  V.  Reynold.s,  96  U.  S.  340;  Peters  v.  Wright  v.  Bimdy,  11  Ind.  398;  KrutsiBger 
Bowman,  98  U.  S.  56.  New  York  :  Wake-  v.  Brown,  72  Ind.  466.  Nebraska  :  Forier 
man  v.  Grover,  4  Paige,  23;  Eagle  Fire  v.  Kloke,  10  Neb.  373;  Stratton  v.  Reis- 
Co.  V.  Lent,  6  Paige,  635,  637;  Lewis  v.  dorph,  35  Neb.  314,  53  N.  W.  Rep.  136; 
Smith,  11  Barb.  152,9  N.  Y.  502,  61  Am.  White  v.  Baitktt,  14  Neb.  320,  15  N.  W. 
Dec.  706;  Kay  (7.  Whittaker,  44  N.  y.  565;  Rep.  702.  California:  McComb  r.  Span- 
Hancock  V.  Hancock,  22  N.  Y.  568;  Brun-  gler,  71  Cal.  418,  12  Pac.  Rep.  347.  Min- 
dage  v.  Missionary  Society,  60  Barb.  204;  nesota:  Banning  v.  Bradford,  21  Minn. 
Payn  v.  Grant,  23  Hun,  134;  Merchants'  308,  18  Am.  Rep.  398;  Foster  u.  Johnson, 
Bank  v.  Thomson,  55  N.  Y.  7  ;  Rathboue  v.  44  Minn.  290,  46  N.  W.  Rep.  350. 
Hooney,  58  N.  Y.  463;  Emigrant  Indus-  Otherwise  in  Kansas :  German  Ins.  Co. 
trial  Sav.  Bank  v.  Goldman,  75  N,  Y.  127 ;  v.  Nichols,  41  Kans.  133,  21  Pac.  Rep.  Ill  ; 
Frost  V.  Koon,  30  N.  Y.  428 ;  Koch  i'.  Pur-  Fisher  v.  Cowles,  41  Kans.  418,  21  Pac. 
cell,  13  Jones  &  S.  162;  Hotchkiss  v.  Clif-  Rep.  228;  Bradley  v.  Parkhurst,  20  Kans. 
ton  Air  Cure,  4  Keyes,  170;  Guggenheimer    462. 

V.  Sayre,  4  N.  Y.  Supp.  22 ;  Ruy  ter  v.  Reid,  Otherwise  also  in  Iowa  :  Standish  v.  Dow, 
121  N.  Y.  498,  24  N.  E.  Rep.  791;  Jordan  21  Iowa,  363;  Heimstreet  v.  Winnie,  10 
u.  Van  Epps,  85  N.  Y.  427  ;  Barnard  v.  On-  Iowa,  430;  Case  v.  Bartholow,  21  Kans. 
derdonk,  98  N.  Y.  158;  Goebel  v.  Iffia,  111  300.  See  Morris  v.  Wheeler,  45  N.  Y.  708, 
N.  Y.  170,  18  N.  E.  Rep.  649.  Vermont:  which,  though  seemingly  in  conflict  with 
Weed  I'.  Beebe,21  Vt.  495,  499.  Wisconsin:  the  decisions  in  that  State,  is  not  really 
Strobe  V.  Downer,  13  Wis.  10,  80  Am.  Dec.    so. 

709;  Walker  u.Jarvis,  16  Wis.  29;  Macloon  i  Champlin  r.  Foster,  7  B.  Mon.  104; 
I'.  Smith,  49  Wis.  200,  5  N.  W.  Rep.  336;  Clark  v.  Prentice,  3  Dana,  468.  In  this 
Murjjhy  v.  Farwell,  9  Wis.  102.  New  Jer-  case  the  court  say  that  the  interest  of  the 
sey :  Hoppock  v.  Ramsey,  28  N.  J.  Eq.  413.  mortgagor  and  of  the  mortgagee,  as  well  as 
Maryland  :  Post  v.  Mackall,  3  Bland,  486,  the  security  of  purchasers,  renders  this  the 
495;  Tome  v.  Loan  Co.  34  Md.  12.  Texas:  proper  course ;  that,  if  each  of  several  suc- 
Hall  V,  Hall,  1 1  Tex.  526,  547 ;  Hague  v.  cessive  mortgagees  could  have  a  decree  and 
Jackson,  71  Tex.  761,  12  S.  W.  Rep.  63.  sale,  there  would  be  no  confidence  in  judi- 
North  Carolina :  Bogey  v.  Shute,  4  Jones  cial  sales.  Persons  v.  Alsip,  2  Ind.  67  ; 
Eq.  174;  Weil  v.  Uzzell,  92  N.  C.  515.  Troth  v.  Hunt,  8  Biackf.  580;  Warren  v. 
Alabama:  Boiling  i-.  Pace  (Ala.),  12  So.  Burton,  9  S.  C.  197;  Evans  v.  McLucas, 
Rep.  796  ;  Young  y.  Montgomery  &Eufaula  12  S.  C.  56;  Waters  v.  Bossel,  58  Miss. 
R.  R.  Co.  2  Woods,  606  ;  Flowers  v.  Barker,    602. 

79  Ala.  445;  Flouruoy  v.  Harper,  81  Ala.  .  -  Vanderkemp  y.  Shelton,  11  Paige,  28; 
494,  1  So.  Rep.  545.  Michigan:  Converse  Smith  v.  Roberts,  62  How.  Pr.  196;  Ducker 
V.  Michigan  Dairy  Co.  45  Fed.  Rep.  18  ;  v.  Belt,  3  Md.  Ch.  13;  Rucks  v.  Taylor,  49 
Summers  17.  Bromley,  28  Mich.  125;  Wur-  Miss.  552;  Miller  v.  Finn,  1  Neb.  254; 
cherer  v.  Hewitt,  10  Mich.  4.53;  Comstock  Emigrant  Industrial  Sav.  Bank  v.  Gold- 
y.  Comstock,  24  Mich.  39  ;  Pool  f.  Horton,  man,  75  N.  Y.  127;  Metropolitan  Trust 
45  Mich.  404,  8  N.  W.  Rep.  59  ;  Wilkinson  Co.  v.  Tonawanda,  &c.  R.  R.  Co.  18  Abb. 
V.  Green,  33  Mich.  221 ;    Bell  v.  Pate,  47    N.  C.  368. 

354 


WHO   ARE   THE   NECESSARY   OR   PROPER    PARTIES.  [§  1439. 

a  purchaser  at  a  foreclosure  sale  gives  the  full  value  of  the  property  ; 
and  the  whole  proceeds  of  the  property  are  then  applied  to  the  pay- 
ment of  the  incumbrances  in  the  order  of  their  priorities. ^  But  it 
is  proper  to  make  the  person  who  liolds  the  prior  legal  title  a  party 
only  when  his  debt  is  payable,  and  he  is  willing  to  receive  payment, 
and  for  the  purpose  of  making  a  sale  of  the  whole  title.  He  is  not 
a  necessary  party  except  for  such  a  decree. ^  The  court  may  order 
a  sale  subject  to  a  prior  incumbrance ;  and  unless  the  mortgagee 
with  paramount  title  expressly  consents  to  a  sale  of  the  mortgaged 
estate,  the  sale  must  be  made  subject  to  his  mortgage  ;  ^  and  no  por- 
tion of  the  proceeds  of  the  sale  can  be  applied  in  payment  thereof.* 

When  a  prior  incumbrancer  is  made  a  party  to  a  foreclosure  suit, 
there  should  be  an  allegation  of  the  purpose  for  which  he  is  made  a 
party  ;  as,  for  instance,  that  the  amount  of  his  mortgage  may  be 
ascertained  and  determined  by  the  judgment  of  the  court,  so  that 
the  mortgage  can  be  paid  out  of  the  proceeds  of  the  sale,  or  so  that 
the  sale  may  be  made  subject  to  the  known  amount  of  the  lien.  If 
such  purpose  is  not  indicated  in  the  complaint  nor  provided  for  in 
the  judgment,  the  prior  incumbrancer  will  not  be  affected  by  the 
judgment.^ 

If  a  sale  of  the  entire  property  be  decreed  in  a  suit  to  which  the 
senior  mortgagee  is  not  a  party,  he  may  enjoin  the  execution  of  the 
decree;^  though  in  such  case  the  decree  would  be  void  so  far  as  it 
might  affect  his  rights. 

When  one  is  made  a  party  to  a  foreclosure  suit  as  the  holder  of  a 

/ 

1  Vanderkemp  v.  Shelton,  11  Paige,  28;  estate,  when  he  is  required  to  consent  to 
Buel  V.  Farwell,  8  Neb.  224.  such  sale,  or  to  refuse  it  at  once ;  and  then, 

2  Jerome  v.  McCarter,  94  U.  S.  734 ;  if  he  concurs,  a  sale  of  the  whole  estate  is 
Norton  v.  Joy,  6  Biadw.  406  ;  Warner  v.  decreed  ;  otherwise  the  decree  is  for  a  sale 
De  Witt  Co.  Nat.  Bank,  4  Bradw.  30.5 ;  subject  to  his  security.  Wickenden  v.  Ray- 
Hagan  v.  Wali^er,  14  How.  29,  37.  In  this  son,  6  De  G.,  M.  &  G.  210.  See,  also, 
case  Judge  Curtis  exjjhiins  and  limits  the  Delabere  v.  Norwood,  3  Swans.  144,  n.; 
statement  of  Chief  Justice  Marshall  in  Fin-  Parker  v.  Fuller,  1  Russ.  &  M.  656  ;  Bige- 
ley  V.  Bank  of  United  States,  11  Wheat,  low  v.  Cassedy,  26  N.  J.  Eq.  557;  Potts  v. 
304,  306,  that  the  prior  mortgagee  is  a  N.  J.  Arms  Co.  17  N.J.  Eq.  518;  Gihon  v. 
necessary  party.      And  see  White  v.  Hoi.  Belleville  Co.  7  N.  J.  Eq.  536. 

man,  32   Ark.    753;    Emigrant   Industrial  *  Bache  i'.  Doscher,  67  N.  Y.  429 ;  Emi- 

Savings  Bank  y.  Goldman,  75  N.  Y.   127;  grant  Industrial  Savings  Bank  y.  Goldman, 

Wabash,  St.  L.  &  P.    Ry.  Co.  v.  Central  75  N.  Y.  127,  19  Alb.  L.  J.  159. 

Trust   Co.    22   Fed.   Rep.    138;    White   v.  ^  Emigrant  Industrial   Savings  Bank  t;. 

Bartlett,  14  Neb.  320,  15  N.  W.  Rep.  702.  Goldman.    75    N.    Y.    127;    Metropolitan 

3  Langton  v.  Langton,  7  De  G.,  M.  &  G.  Trust  Co.  v.  Tonawanda,  &c.  R.  R.  Co.  18 
30.  In  England  the  practice  upon  a  sale  Abb.  N.  C.  368.  See  Scribner  v.  York 
under  a  subsequent  mortgage  is    to  make  (Iowa),  55  N.  W.  Rep.  10. 

the  mortgagee  with  paramount  title  a  party        '^  Rucks  v.  Taylor,  49  Miss.  552. 
to  the  suit,  if  it  is  desired  to  sell  the  whole 

355 


§  1439.]  OF  PARTIES  DEFENDANT. 

subsequent  mortgage,  and  sucli  party  is  also  the  owner  of  mortgages 
prior  to  that  of  the  plaintiff,  he  may  answer  in  the  action  and  ask 
to  have  such  prior  mortgages  paid  out  of  the  proceeds  of  sale  before 
applying  any  portion  thereof  to  the  satisfaction  of  the  plaintiff's 
mortgage  ;i  and  it  is  even  held  that  the  senior  mortgagee  when 
made  a  party  may  set  up  his  mortgage  as  a  counter-claim,  and  may 
demand  affirmative  relief  by  way  of  foreclosure  and  sale.^ 

When  a  subsequent  mortgagee  makes  a  prior  mortgagee  a  party 
to  the  suit,  as  well  as  the  owner  of  the  equity,  his  proceeding,  so 
far  as  the  former  is  concerned,  becomes  a  bill  to  redeem.^  The 
prior  mortgage  stands  unaffected  by  the  proceeding,  although  the 
holder  of  it  suffers  default,*  and  may  be  foreclosed  against  one  who 
purchases  at  the  foreclosure  sale  under  the  junior  mortgage.^  A 
prior  judgment  lien  ^  or  a  mechanic's  lien  ^  stands  unaffected  in  the 
same  way,  although  the  creditor  was  made  a' party  to  the  suit  to 
foreclose  a  junior  mortgage. 

On  the  same  principle,  in  a  suit  to  foreclose  a  mortgage  made  of 
a  title  bond,  the  vendor  is  not  a  proper  party.  He  cannot  be  affected 
by  the  decree.^  A  prior  mortgagee  cannot  properly  be  made  a  party 
to  a  bill  to  enforce  a  mechanic's  lien  ;  and  if  he  is,  and  a  decree  be 
taken  against  him  by  default,  it  will  be  set  aside.^ 

The  usual  practice  of  courts  of  equity,  in  cases  where  persons 
claiming  adversely  to  the  mortgagor  have  been  improperly  made 
defendants,  is  to  order  the  action  to  be  dismissed  as  to  such  de- 
fendants, without  prejudice  to  the  plaintiff's  rights  in  any  other 
proceeding.!*^  If  a  judgment  has  been  taken  without  a  dismissal  of 
the  action  as  against  such  adverse  parties,  the  judgment  may  be 
modified  so  as  to  preserve,  unaffected  and  unprejudiced,  the  adverse 
rights  of  such  defendants.^! 

Where,  however,  the  complaint  states  such  facts  as  will,  if  ad- 
mitted, subject  the  defendant's  title  to  the  plaintiff's  mortgage  and 
to  the  relief  sought,  the  defendant  may  be  estopped  from  afterwards 

1  Doctor  j;.  Smith,  16  Hun,  245.  «  Pridgen  v.  Andrews,  7  Tex.  461. 

2  Metropolitan  Trust  Co.  v.  Tonawanda        ^  Smith  v.  Shaffer,  46  Md.  573. 

&G.  E.  R.  Co.  4.3  Hun,  521,  18  Abb.  N.  C.  "  Corning  v.  Smith,  6  N.  Y.  82;  Ban- 

368.  niug  v.  Bradford,  21   Minn.   308,  18  Am. 

3  Hudnut  V.  Nash,  16  N.  J.  Eq.  550.  Rep.  398.     See,  also,  Wilkerson  v.  Daniels, 
*  Straight  i-.  Harris,  14  Wis.  509 ;  Dawson  1  Greene,  179. 

V.  Danbury  Bank,  15  Mich.  489.  But  without  dismissing  them,  their  ad- 

5  Williamson  v.  Probasco,  8  N.  J.  Ch.  verse  rights  may  be  expressly  saved  in  the 
571.  decree.     San  Francisco  v.  Lawton,  18  Cal. 

6  Frost  V.  Koon,  30  N.  Y.  428.  465,  79  Am.  Dec.  187. 

^  Immigrant  Industrial  Savings  Bank  v.  "  Gregory  v.  Keating  (Cal.),  22  Pac. 
Goldman,  75  N.  Y.  127.  Rep.  1084. 

356 


WHO   ARE  THE   NECESSARY    OR   PROPER   PARTIES.  [§  1440. 

setting  up  his  interest  as  against  the  judgment  in  the  foreclosure 
action.  The  judgment  rendered  is  conckisive  between  the  same 
parties  and  their  privies,  upon  all  matters  embraced  within  the  issue 
in  the  action,  whether  the  issue  was  joined  by  the  defendant  or  left 
unanswered.  Thus,  in  a  suit  upon  a  mortgage  made  by  a  life 
tenant,  but  purporting  to  convey  the  fee,  certain  contingent  re- 
mainder-men were  made  parties,  the  complainant  alleging  that  their 
interest  was  inferior  to  the  mortgage,  and  a  decree  was  rendered 
against  them  by  default.  It  was  held  that  the  decree  barred  their 
interest,  and  gave  the  purchaser  at  the  foreclosure  sale  a  good 
title.i 

With  the  consent  of  the  prior  mortgagee  who  has  brought  a  fore- 
closure suit,  a  subsequent  mortgagee  may  file  a  cross-bill  for  the 
foreclosure  of  his  mortgage,  and  the  mortgagor  cannot  object,  as  it 
can  work  no  injury  to  him.^ 

A  prior  mortgagee  is  a  proper  party  to  a  bill  in  which  a  receiver 
is  prayed  for.^ 

1440.  Adverse  claimants  cannot  be  made  parties  to  a  fore- 
closure suit  for  the  purpose  of  litigating  their  titles.  The  only 
proper  parties  ai'e  the  mortgagor  and  mortgagee,  and  those  who  have 
acquired  any  interests  from  them  subsequently  to  the  mortgage. 
An  adverse  claimant  is  a  stranger  to  the  mortgage  and  the  estate. 
His  interests  can  in  no  way  be  affected  by  the  suit,  and  he  has  no 
interest  in  it.  There-  being  no  privity  between  him  and  the  mort- 
gagee, the  latter  cannot  make  him  a  party  defendant  for  the  purpose 
of  trying  his  adverse  claim  in  the  foreclosure  suit.^     Even  if  an  ad- 

1  Goebel  v.  Iffla,  111  N.  Y.  170,  19  St.  sionary  Society,  60  Barb.  204;  Meigs  v. 
Rep.  105,  18  N.  E.  Rep.  649,  affirming  48  Willis,  66  How.  tr.  466.  Michigan:  Wil- 
Hun,  21.  kiiison  v.   Green,  34  Mich.  221;   Farmers' 

2  Crocker  v.  Lowenthal,  8.3  111.  579.  and  Mechanics'  Bank  v.  Bronson,  14  Mich. 

3  Miltenbergeru.  Logansport  Ry.  Co.  106  361;  Horton  v.  Ingersoll,  13  Mich.  409; 
U.  S.  286.  Chamberlain    v.  Lyell,  3  Mich.  448 ;    Mc- 

4  §  1445 ;  Dial  v.  Reynolds,  96  U.  S.  Clure  v.  Holbrook,  39  Mich.  42.  Illinois  : 
340;  Peters  v.  Bowman,  98  U.  S.  56,  11  Gage  v.  Perry,  93  111.  176;  Gage  v.  Board 
Chicago  L.  N.  118,  17  Albany  L.  J.  132.  of  Directors,  8  Bradw.  410;  Carbine  v.- 
Alabama :  Hambrick  v.  Russell,  86  Ala.  Sebastian,  6  Bradw.  564,  567  ;  Whittemore 
199,  5  So.  Rep.  298;  Randle  r.  Boyd,  73  v.  Shiell,  14  Bradw.  414.  Minnesota:  Ban- 
Ala.  282;  Lyon  v.  Powell,  78  Ala.  351;  ning  v.  Bradford,  21  Minn.  308,  18  Am. 
McHan  v.  Ordway,  82  Ala.  463.  New  Rep.  398 ;  Newman  v.  Home  Ins.  Co.  20 
York :  Frost  v.  Koon,  30  N.  Y.  428 ;  Mer-  Minn.  422.  California :  San  Francisco  v. 
chants'  Bank  v.  Thomson,  55  N.  Y.  7 ;  Lawton,  18  Cal.  465,  79  Am.  Dec.  187; 
Lewis  i;.  Smith,  9  N.  Y.  502,  61  Am.  Dec.  Marlow  v.  Barlew,  53  Cal.  456 ;  McComb 
706;  Jones  v.  St.  John,  4  Saudf.  Ch.  t;.  Spangler,  71  Cal.  418,  12  Pac.  Rep.  347 ; 
208;  Corning  i\  Smith,  6  N.  Y.  82;  Eagle  Croghan  v.  Spence,  53  Cal.  15  ;  Randall  v. 
Fire  Co.  v.  Lent,  6  Paige,  635;  Holcomb  Duff,  79  Cal.  115,  21  Pac.  Rep.  610;  -Ord 
V.  Holcomb,  2  Barb.  20;  Brundage  v.  Mis-  v.  Bartlctt,  83  Cal.  428,  23  Pac.  Rep.  705. 

357 


§  1440.]  OF   PARTIES   DEFENDANT. 

verse  claimant  appears  and  puts  his  claim  in  issue,  the  court  may- 
refuse  to  pass  upon  it.^  A  bill  which  makes  defendants  persons 
who  claim  title  adversely  for  the  purpose  of  litigating  and  settling 
their  rights  is  bad  for  misjoinder  and  for  multifariousness.^  One 
who  claims  under  a  tax  title  which  became  a  lien  after  the  mortgage 
is  a  proper  party,  as  the  claim  is  made  for  an  interest  in  the  equity 
of  redemption  ;  ^  but  one  claiming  under  a  tax  deed  as  a  paramount 
title  is  not  a  proper  party .^  If,  however,  it  appears  that  such  person, 
independent  of  his  tax  title,  has  purchased  the  equity  of  redemption 
and  assumed  the  payment  of  the  mortgage  debt,  he  is  a  proper 
party  defendant.^  Where  the  description  in  the  mortgage  is  erro- 
neous, in  a  bill  to  foreclose  it  a  person  who  owns  lands  which  would 
be  affected  by  the  erroneous  description  is  not  a  proper  party,  when 
it  appears  that  he  was  never  interested  in  any  portion  of  the  premises 
identified  by  proof  to  be  those  really  mortgaged.^  The  holder  of 
the  subsequent  mortgage  in  foreclosing  it  cannot  make  one  claiming 
adversely  to  the  mortgagor's  title  a  defendant,  for  the  purpose  of 
trying  the  validity  of  the  adverse  claim." 

Whether  an  asserted  claim  is  such  an  adverse  one  as  to  come 
within  the  rule  depends,  not  upon  what  is  set  up  in  the  answer  in 
regard  to  it,  but  upon  the  allegations  of  the  bill,  and  upon  the  testi- 
mony in  the  case  as  to  the  nature  of  the  alleged  adverse  claim.^ 
Should  it  appear  that  a  defendant  has  a  legal  title  which,  if  valid,  is 
adverse  and  paramount  to  the  claim  of  both  mortgagor  and  mort- 
gagee, then  neither  is  the  foreclosure  suit  a  suitable  proceeding,  nor 
a  court  of  equity  the  appropriate  tribunal  in  which  to  settle  the 
question.^'  The  title  of  one  who  claims  by  adverse  possession  may 
be  adjudicated  in  a  suit  to  foreclose,  in  case  the  original  validity  of 
the  mortgage  is  not  questioned.^*^ 

North  Carolina  :   Bogey   v.  Shute,  4  Jones  Alpin  v.  Zitser,  119  III.  273,  10  N.  E.  Rep. 

Eq.  174.     Wisconsin  :  Pelton  v.  Farmin,  18  901. 

Wis.   222.      Virginia:    Lange  r.  Jones,  5  *  Roberts  ?;.  "Wood,  38  Wis.  60;  Gage?;. 

Leigh,  192.   Vermont:  Lyman  v.  Little,  15  Perry,  93  111.  176;  Bozarth  v.  Landers,  113 

Vt.   576;    Kinsley   v.    Seott,    58    Vt.   470.  111.181;  McAlpin  v.    Zitser,  119   111.  273; 

Indiana:  Comley  v.   Hendricks,   8  Blackf.  Whitteniore  y.  Shiell,  14  111.  App.  414. 

189  ;  Pattison  v.  Shaw,  6  Ind.  377  ;  Crogan  ^  Carbine  v.  Sebastian,  6  Bradw.  564. 

V.  Minor,  6  Cent.  L.  J.  354.  ^  Ramsdell  v.  Eaton,  12  Mich.  117. 

Contra  in  Kansas :    Fisher  v.  Cowles,  41  ''  Corning  v.  Smith,  6  N.  Y.  82 ;  Palmer 

Ivans.  418,  21   Pac.  Rep.  228;    Bradley  f.  y.  Yager,  20  Wis.  91. 

Parkhurst,  20  Kans.  462.  ^  Carbine    v.   Sebastian,   6  Bradw.  564, 

1  Ord  V.  Bartlett,  83  Cal.  428,  23  Pac.  quoting  text. 

Rep.  705.  9  Wilkinson   v.   Green,   34    Mich.    221  ; 

2  Dial  V.  Reynolds,  96  U.  S.  340.  Summers  v.  Bromley,  28  Mich.  126. 

3  Horton  v.  lugersoll,  13  Mich.  409;  Me-         ^''  St.  Johnsbury  &  L.   C.  R.  R.  Co.  v. 


Willard,  61  Vt.  134, 17  Atl.  Rep.  38. 


358 


WHO  ARE  THE  NECESSARY  OR  PROPER  PARTIES.      [§  1441. 

But  a  subsequent  purchaser  who  has  procured  releases  from  a 
former  owuer  merely  to  perfect  his  title  of  record,  and  under  such 
circumstances  as  would  render  it  fraudulent  for  him  to  set  up  such 
conveyances  as  a  title  adverse  and  paramount  to  that  of  the  mort- 
gagor, may,  under  proper  allegations,  be  made  a  party  to  the  bill 
for  foreclosure,  and  his  title  may  in  such  suit  be  declared  null  and 
void.i 

It  has  been  claimed,  however,  that  when  one  has  been  made  a 
defendant  in  a  foreclosure  suit,  and  has  set  up  by  answer  a  para- 
mount title,  and  without  objections  has  gone  to  trial  upon  that  issue, 
he  cannot,  if  beaten,  ask  a  reversal  on  the  ground  that  the  issue  was 
not  properly  triable  in  that  action.^  But  the  authorities  do  not  sus- 
tain this  view.  All  the  title  a  mortgagee  can  obtain  by  foreclosure 
is  the  title  of  his  mortgagor,  and  that  is  the  only  title  that  can  be 
considered  in  the  foreclosure  suit.^ 

Persons  having  claims  adverse  to  the  parties  to  the  original  bill 
cannot  intervene  by  a  cross-bill,  and  have  their  claims  litigated  in 
the  foreclosure  suit.^ 

1441.  Priority  between  mortgages.  —  It  has  been  held,  however, 
that  a  question  of  priority  between  mortgages  may  be  settled  in  a 
foreclosure  suit  upon  a  first  mortgage,  by  allowing  the  second  mort- 
gagee to  intervene  and  set  up  the  statute  of  limitations  as  a  bar  to 
the  mortgage  upon  which  suit  was  brought;^  and  in  like  manner 
judgment  creditors  have  been  allowed  to  intervene  and  contest  the 
validity  of  a  mortgage;^  and  a  junior  mortgagee  might  perhaps  be 
allowed  to  make  a  prior  mortgagee  a  party  to  the  suit  upon  special 
allegations  of  facts,  which  would  give  him  equitable  precedence,  or 
would  put  the  validity  of  the  prior  mortgage  in  issue." 

As  already  noticed,  it  is  a  rule  of  equity,  adopted  also  in  the 
several  codes,  that  additional  parties  may  be  brought  in  when  a  com- 
plete determination  of  the  controversy  cannot  be  had  without  their 
presence.  The  application  may  be  made  either  by  the  plaintiff  or 
defendant,  though  practically  it  is  generally  made  by  the  former. 
But  the  court  may,  of  its  own  motion,  order  in  additional  parties 
when,  without  them,  its  decree  would  be  ineffectual  and  incomplete.^ 

1  Wilkinson  v.  Green,  34  Mich.  221.  6  Lord  v.  Morris,  18  Cal.  482. 

2  Bradley  v.  Parkhurst,  20   Kans.   462;  ^  Union  Bank  y.  Bell,  14  Ohio  St.  200. 
Lounshury  v.  Catron,  8  Neb.  469  ;  Shellen-  ''  Dawson  v.   Danbury  Bank,  1.5    Mich, 
berger  v.  Kiser,  5  Neb,  19.5.  89  ;  Dickerman  v.  Lust,  66  Iowa,  444,  23  N. 

3  §  1445,  per  Horton,  C.  J.,  in  Bradley  v.  W.  ]?ep.  916  ;  Foster  v.  .Johnson,  44  Minn. 
Parkhurst,  20  Kans.  462.  290,  46  N.  W.  Rep.  350 ;  First  Nat.  Bank 

*  Dial  V.  Reynolds,  96  U.  S.  340 ;  Far-    v.  Salem  Capital  Flour  Mills   Co.  31  Fed. 
mers'  Loan   and  Trust  Co.  v.  San  Diego    Rep.  580. 
Street  Car  Co.  40  Fed.  Rep.  105.  8  Leonard  v.  Groome,  47  Md.  499. 

359 


§  1442.] 


OF   PARTIES   DEFENDANT. 


Furthermore,  in  the  progress  of  the  suit  a  third  person  who  has  an 
interest  in  the  matter  of  the  suit  may,  on  his  own  application,  be 
made  a  party. ^  In  Iowa  ^  and  California  ^  it  is  provided  that  any 
person  having  an  interest  in  the  matter  in  litigation  may  of  right 
intervene  by  petition  and  become  a  litigant  party.  He  may  act 
with  either  party  to  the  suit  or  adversely  to  both.  This  system  is 
an  innovation  upon  the  established  principles  of  equity. 

In  the  last-named  State,  in  an  action  to  foreclose  a  mortgage 
given  by  a  corporation  which  had  become  insolvent,  certain  judg- 
ment creditors  alleging  fraud  in  the  execution  of  the  mortgage,  and 
that  it  was  void  against  the  creditors,  were  allowed  to  intervene.* 
So,  in  an  action  brought  to  foreclose  a  mortgage  which  was  barred 
by  the  statute  of  limitations,  a  subsequent  incumbrancer  was  al- 
lowed to  intervene  and  set  up  the  statute  as  a  defence.^  In  an 
action  to  foreclose  a  mortgage  on  a  homestead,  the  mortgagor's  wife 
was  allowed  to  intervene.^ 

1442.  New  parties  who  are  found  to  have  an  interest  in  the 
premises  may  be  joined  in  the  bill  by  amendment,  or  in  a  supple- 
mental one,  if  application  be  made  within  a  reasonable  time ;  ^  or 


1  Dodge  V.  Fuller,  28  N.  J.  Eq.  578. 

2  Code  of  Iowa,  1873,  §§  2G83-2685. 

3  Code  Civil  Procedure  of  California, 
1872,  §  387.  In  the  latter  State  the  iuter- 
venor  must  obtain  leave  of  court  to  file  his 
petition. 

4  Stich  V.  Dickinson,  38  Cal.  608.  Mr. 
Justice  Crockett  said  :  "The  subject  matter 
of  the  litigation  is  the  note  and  mortgage, 
and  the  right  of  the  plaintiff  to  have  a  de- 
cree of  foreclosure  and  sale.  The  interve- 
ner claims,  as  against  the  plaintiff,  that  he 
and  not  the  plaintiff  is  entitled  to  the  decree 
of  foreclosure;  and  as  against  the  defend- 
ants, that  the  mortgage  debt  is  due  and  un- 
paid, and  that  he  is  entitled  to  a  foreclosure. 
In  this  case  the  intervenor  claims  the  de- 
mand in  suit,  viz.,  the  note  and  mortgage, 
and  we  can  perceive  no  reason  founded  on 
the  policy  of  the  law  which  should  preclude 
the  settlement  of  the  whole  controversy  in 
one  action." 

5  Coster  V.  Brown,  23  Cal.  142;  Lord  v, 
Morris,  18  Cal.  482. 

6  Sargent  i-.  Wilson,  5  Cal.  504;  Moss  v. 
Warner,  10  Cal.  296. 

^  Heymanw.  Lowell,  23  Cal.  106;  Cerfv. 
Ashley,  68  Cal.  419;  Johnston  v.  Donvan, 
50  Hun,  215, 2  N.  Y.  Supp.  858,  20  N.  Y.  St. 

360 


Rep.  30,  12  N.  E.  Rep.  594  ;  Jones  v.  Porter, 
23  Ind.  06  ;  Leveridge  v.  Marsh,  30  N.  J.  Eq. 
59  ;  Kirkland  v.  Kirkland,  26  N.  J.  Eq.  276  ; 
Conrad  v.  Midlison,  24  N.  J.  Eq.  65.  In 
Alabama  this  may  be  done  by  petition  even 
after  decree  and  sale.  Glidden  v.  Andrews, 
6  Ala.  190.  In  New  Jersey  the  right  to  be 
made  a  party  is  secured  by  statute.  Rev.  p. 
110,  §§  41,  42  ;  Smith  v.  Davis  (N.  J.  Eq.), 
19  Atl.  Rep.  541.  But  this  statute  does  not 
allow  one  who,  pending  a  foreclosure  suit, 
has  acquired  a  doubtful  claim  to  part  of  the 
surplus  paid  into  court  on  the  foreclosure 
sale  after  satisfying  the  complainant's  mort- 
gage, to  be  made  a  party  to  the  suit  by  peti- 
tion, since  his  claim  is  not  within  the  issues 
of  the  cause.  Mutual  L.  Ins.  Co.  v.  Schwab, 
(N.  J.  Eq.),  26  Atl.  Rep.  533,  distinguishing 
Hewitt  V.  Railway  Co.  25  N.J.  Eq.  100,  and 
Conrad  v.  Mullison,  24  N.  J.  Eq.  65. 

In  Wisconsin  any  proper  or  necessary 
party  to  a  foreclosure  suit  may  be  joined  af- 
ter judgment  and  before  sale,  and  the  judg- 
ment so  amended  as  to  bar  and  foreclose 
such  party.  R.  S.  §  3161 ;  Moore  r.  Kirby, 
76  Wis.  273,  45  N.  W.  Rep.  114.  As  to 
conditions  imposed  upon  one  intervening, 
see  Lawton  v.  Lawton,  54  Hun,  415,  7  N.  Y. 
Supp.  556. 


WHO   ARE   THE   NECESSARY   OR  PROPER  PARTIES.  [§  1442  a. 

tliey  may  themselves  intervene  in  the  original  cause  by  petition,  or 
may  maintain  a  separate  bill.^  A  suit  may  be  stayed,  even  on  final 
hearing,  to  bring  in  subsequent  mortgagees  and  incumbrancers  who 
are  found  to  be  proper  parties.  It  is  not  only  a  detriment  to  the 
complainant,  but  unjust  to  all  other  persons  interested  in  the  pro- 
ceeds of  the  sale,  to  allow  this  to  be  made  subject  to  an  outstanding 
right  to  redeem,  for  that  invariably  prejudices  the  sale.^  The  want  of 
necessary  parties  may  be  objected  to  by  demurrer  when  the  defect 
appears  upon  the  face  of  the  bill ;  otherwise  objection  may  be  taken 
by  answer.3  The  mortgagor  having  an  interest  in  the  sale,  by  rea- 
son of  his  personal  liability  for  the  debt,  may  object  to  the  omission 
of  parties  necessary  to  the  making  of  a  perfect  title.*  There  is  no 
error  in  refusing  to  allow  persons  who  have  acquired  an  interest 
pending  the  suit  to  be  made  parties  to  the  bill,  if  they  are  allowed 
to  defend  in  the  name  of  their  grantor  who  is  a  party  to  the  suit.^ 
Those  who  have  acquired  liens  upon  the  mortgaged  property  during 
the  pendency  of  the  foreclosure  suit,  if  not  allowed  to  interpose  a 
defence  in  the  name  of  the  defendant,  can  only  make  themselves 
parties  to  the  suit  by  filing  a  bill  to  protect  their  rights.^  After 
adding  new  parties,  the  statutory  notice  of  lis  'pendens  should  be 
made  to  conform  to  the  amended  bill.'' 

When  a  person  made  a  party  to  the  suit,  on  the  supposition  that 
he  had  some  interest  in  the  premises  subject  to  the  mortgage,  claims 
no  such  interest,  he  should  make  a  disclaimer  and  have  the  suit  dis- 
missed as  to  himself.^ 

1442  a.  A  guardian  ad  litem  should  be  appointed  if  a  defend- 
ant is  under  legal  disability ;  though  if  process  be  served  upon 
an  infant  without  the  appointment  of  a  guardian,  and  judgment  be 
taken  by  default,  the  judgment  is  not  void  but  voidable.^  The 
plaintiff  is  bound  to  bring  infant  defendants  before  the  court  in  the 
manner  provided  by  statute,^*^  and  to  see  that  they  are  duly  served 
with  process,  and  that  a  guardian  ad  litem  is  appointed  ;  but  he  is 
not  bound  to  see  that  such  guardian  appears  in  the  suit,  or  that  he 
performs  his  duties  required  by  law  or  by  the  rules  of  practice. ^^ 

1  Harris  v.  Hooper,  50  Md.  537.  ^  People's  Bank  v.  Hamilton  Manuf.  Co. 

2  Gould  V.  Wheeler,  28  N.  J.  Eq.  541.  10  Paige,  481. 

3  Morris  v.  Wheeler,  45  N.  Y.  708.  "  Clark  v.  Havens,  Clarke,  Ch.  560. 

4  Hall  I'.  Nelson,  14  How.  Pr.  32;  Mor-  «  Feltou  v.  Farmin,  18  Wis.  222. 

ris  V.  Wheeler,  45  N.  Y.  708.  »  McMurray  v.  McMurray,  66  N.  Y.  175. 

5  Chickering    v.  Fullerton,  90    111.  520;        "  Johnson   v.  Trotter   (Ark.),  15  S.  W. 
Lunt  V.  Stephens,  75  111.  507.  Rep.  1025. 

"  Hopkins  v.  Frey,  18  N.  Y.  Supp.903.  ' 

361 


§  1442  b.']  OF   PARTIES   DEFENDANT. 

If  a  guardian  ad  litem  be  so  appointed  for  an  infant'  who  was 
made  a  defendant  in  tlie  suit,  but  such  guardian  has  no  notice  of 
his  appointment  until  after  final  judgment,  he  may  then  upon  his 
prompt  application  be  allowed  to  answer.  But  the  application  will 
be  denied  if  the  plaintiff  consents  to  strike  out  the  infant's  name  as 
a  party  to  the  proceedings.^  If  the  guardian  ad  litem  makes  no 
defence,  and  the  court  has  jurisdiction  of  the  cause,  a  judgment 
without  proof  is  valid  and  cannot  be  set  aside.^ 

There  is  so  much  uncertainty  whether  service  upon  the  guardian 
ad  litem,  without  service  upon  the  infant,  is  sufficient,  that  a  pui'- 
chaser  at  a  foreclosure  sale  who  refuses  to  complete  his  purchase 
because  there  was  no  service  upon  the  infant  will  not  be  compelled 
to  pay  his  bid  and  accept  a  deed.^  But  a  recital  in  the  judgment 
that  the  summons  in  the  action  was  duly  served  on  all  the  defend- 
ants therein,  and  that  one  of  them  was  an  infant,  and  appeai-ed  by 
her  guardian  ad  litem,  is  prima  facie  evidence  of  the  service  of 
summons  on  said  infant  sufficient  to  sustain  the  jurisdiction  of  the 
court  as  to  her.^ 

If  the  infant  be  a  non-resident  and  does  not  appear,  or  is  not 
made  a  party  to  the  suit,  the  court  has  no  jurisdiction  to  appoint  a 
guardian  ad  litem,  and  consequently  an  appearance  by  the  guardian 
is  not  an  appearance  by  the  infant;  and  a  judgment  in  a  suit  so 
conducted  is  not  binding  upon  the  infant,  and  the  sale  conveys  no 
title  as  against  him.^ 

1442  b.  Provision  is  made  in  some  States  for  service  by  pub- 
lication in  case  the  mortgagor,  or  any  one  holding  under  him,  has 
absconded,  conceals  himself,  or  is  unknown,  or  the  complainant, 
after  diligent  inquiry,  has  been  unable  to  ascertain  whether  any 
person  having  or  having  had,  or  claiming  or  having  claimed,  or  be- 
lieved to  claim  or  to  have  claimed,  any  interest  or  estate  in  the  lands, 
or  any  lien  upon  the  same,  is  alive  or  dead,  and  has  been  unable  to 
ascertain  the  names  or  residences  of  his  heirs  and  devisees  or  per- 
sonal representatives,  or  such  of  them  as  are  proper  parties  defend- 
ant, in  case  such  person  is  dead.  A  decree  may  then  be  made 
against  such  unknown  person  or  claimant  for  a  sale  of  the  property, 

1  Farmers'  Loan  &  Trust  Co.  v.  Erie  Ry.  not  passed  upon  in  Bosworth  v.  Vande- 
Co.  9  Abb.  N.  C.  264.  walker,  53  N.  Y.  597. 

2  Boyd  V.  Roane,  49  Ark.  397,  5  S.  W.  *  Ingersoll  v.  Mangam,  24  Hun,  202. 
Rep.  704.     See,  however,  Johnson  v.  Trot-  ^  Fuchs  v.  Devlin,  12  N.  Y.  Supp.  574, 
ter,  (Ark.),  15  S.  W.  Rep.  1025.  following  Bosworth  v.  Vandewalker,  53  N. 

3  Ingersoll  v.  Mangam,  24  Hun,  202,  af-  Y.  597,  and  Prlngle  v.  Woolworth,  90  N.  Y. 
firmed  84  N.  Y.  622.     Question  raised  but  502. 

362 


WHO    ARE   THE   NECESSARY    OR   PROPER   PARTIES.  [§  1442  h. 

and  the  proceeds  of  the  sale  belonging  to  such  person  may  be  de- 
posited in  court  for  the  benefit  of  such  unknown  owner  or  claim- 
ant. ^ 

1  There  is  such  a  provision  in  New  Jer-    brief  and  simple.     Code  of  Civ.  Pro.  1891, 
sey.     Laws  1891,   ch.  63;  Laws  1892,  eh.    §221. 
110.     The  North  Carolina  statute  is  more 

363 


CHAPTER   XXXII. 

FORECLOSURE   BY   EQUITABLE    SUIT. 

I.  Jurisiliction,  and  the  object  of  the  suit,  1    II.  The  bill  or  comphiint,  U51-1478. 
1443-1450.  I  III.  The  answer  and  defence,  1479-157.5. 

I.  Jurisdiction^  and  the  Object  of  the  Suit. 
1443.  Jurisdiction.  —  Courts  of  equit)^  have  inherent  original 
jurisdiction  of  the  subject  of  mortgages  both  for  the  foreclosure 
and  redemption  of  them.  Redemption  is  purely  a  matter  of  equity, 
and  the  only  remedy  is  here.  Altliough  other  remedies  are  used 
for  the  foreclosure  of  mortgages  under  different  systems  of  law  and 
practice  adopted  in  different  States,  yet  generally  courts  of  equity 
are  not  deprived  of  jurisdiction  by  the  existence  of  other  remedies. 
In  many  States,  as  already  seen,  jurisdiction  in  equity  of  the  fore- 
closure of  mortgages  is  expressly  conferred  by  statute.^  When  pro- 
visions in  detail  are  made  on  this  subject,  they  are  generally  founded 
upon  principles  and  rules  of  practice  already  established  by  courts 
of  equity  under  the  general  jurisdiction  they  have  always  exer- 
cised of  the  subject ;  and  the  powers  of  these  courts  are  only  en- 
larged and  defined  by  the  statutes.  But  even  where  systems  of 
foreclosure  not  derived  directly  from  chancery  courts  have  been 
adopted,  courts  of  equity,  where  they  have  not  been  superseded  by 
codes  of  practice,  which  do  away  with  all  distinctions  between  ac- 
tions at  law  and  in  equity,  still  have  concurrent  jurisdiction  of  the 
subject,  and  are  resorted  to,  if  not  generally,  then  in  particular 
instances,  for  the  reason  that  they  afford  a  more  complete  and  certain 
remedy.2  Even  the  peculiar  statutory  mortgage  of  Louisiana,  which 
is  a  public  act  before  a  notary  public,  and  imports  a  confession  of 
judgment,  and  under  the  statutes  of  that  State  is  enforced  at  law 
by  a.  writ  of  seizure  and  sale,  may  be  foreclosed  in  a  court  of  the 
United  States  having  jurisdiction  of  the  case  by  a  bill  in  equity .^ 

1  See  chapter  xxx. ;  Byron  r.  May,  2  138;  Shepard  t;.  Richardson,  145  Mass.  32, 
Chand.  103;  State  Bank  i\  Wilson,  9  111.  57  ;  11  N.  E.  Rep.  738;  McCurdy's  Appeal,  65 
Warehime  v.  Carroll  Co.  Build.  Asso.  44  Pa.  St.  290;  McElrath  y.  Pittsburg  &  Steu- 
Md.  512.  benville  R.  R.  Co.  55  Pa.  St.  189. 

2  Shaw  V.  Norfolk  Co.  R.  R.  Co.  5  Gray,        3  Benjamin  v.  Cavaroc,  2  Woods,  168. 
162;  Hall  v.  Sullivan  Ry.  Co.  21  Law  Rep. 

364 


JURISDICTION,   AND   THE   OBJECT   OF   THE   SUIT.         [§  1444. 

Althougli  the  mortgage  contains  a  power  of  sale,  courts  of  chan- 
cery are  not  generally  deprived  of  their  jurisdiction  to  foreclose  it.^ 
Neither  is  an  abortive  attempt  to  foreclose  under  a  power  of  sale  a 
bar  to  a  foreclosure  in  equity-^  It  has  been  stated,  as  a  reason  why 
jurisdiction  in  equity  should  be  retained  in  such  cases,  that  a  mort- 
gagee may  be  incapable  of  purchasing  at  his  own  sale  under  the 
power,^  though  he  may  at  a  sale  made  by  an  officer  under  a  judg- 
ment or  decree.  Neither  does  the  fact  that  there  is  a  statutory 
remedy  oust  the  jurisdiction  of  a  court  of  equity.* 

One  result  of  the  equitable  character  of  the  statutory  processes 
for  enforcing  mortgage^  is,  that  the  parties  have  no  right  as  a  mat- 
ter of  course  to  have  the  issues  tried  by  a  jury,  even  when  judoment 
is  asked  for  any  deficiency  and  the  execution  of  the  note  is  denied ;  ^ 
although  the  court  may  in  its  discretion  call  in  the  aid  of  a  jury  in 
any  case.^ 

1444.  Venue.  —  A  foreclosure  suit  in  its  usual  form  is  partly 
an  action  in  rem,  for  the  seizure  and  sale  of  the  property,  and 
partly  an  action  in  personam,  for  the  ascertainment  of  the  debt  of 
the  mortgage  debtor,  and  obtaining  a  personal  judgment  ao-ainst 
him."  When  no  personal  judgment  is  sought  the  suit  is  essentially 
a  proceeding  in  rem,  and  service  by  publication,  when  this  is  al- 
lowed by  statute,  is  sufficient  to  give  jurisdiction.^  Actions  for 
foreclosure  of  mortgages  are  generally  required  by  statute  to  be 
brought  in  the  county  where  the  mortgaged  premises  or  some  part 
thereof  are  situated.^  Such  a  statute  gives  to  a  mortgagee  whose 
mortgage  covers  several  disconnected  tracts  of  land  in  different 
counties  the  right  to  foreclose  as  to  all  of  them  by  a  sinole  suit,  in 
any  county  where  ofte  tract  is  situated. ^o     But,  aside  from  this  re- 

1  Walton  V.  Cody,  1  Wis.  420;  Byron  v.  "<  Wagener  v.  Swygert,  30  S.  C.  296  9  S. 
May,  2  Chand.   (Wis.)   103;    Carradine  v.    E.  Kep.  107. 

O'Connor,  21  Ala.  573 ;  Alabama  Life  Ins.  »  Martin  v.  Pond,  30  Fed.  Rep.  15. 

&  Trust  Co.  V.  Pettway,  24  Ala.  544  ;  Mor-  »  Goldtree  v.  McAlister,  86  Cal.  93,  24 

rison    v.  Bean,    15    Tex.    267;   Warebime  Pac.  Rep.  801. 

V.  Carroll   Co.  Build.    Asso.  44  Md.   512;  ^  Stevens    v.   Ferry,   48   Fed.    Rep.    7; 

§  1770.  Holmes  v.  Taylor,  48  Ind.  1 69.     Even  a  suit 

2  Rogers  v.  Benton,  39  Minn.  39,  38  N.  to  foreclose  several  mortgages  made  by  one 
W.  Rep.  765,  12  Am.  St.  Rep.  613.  mortgagor  to  secure  one  debt  of  lauds  ly- 

2  Marriott  v.   Givens,  8  Ala.  694 ;   Mc-  ing  in  several  couuties  may  be  brought  in 

Go  wan  v.  Branch  Bank  at  Mobile,  7  Ala.  any  county  in  which  the  land  in  one  of  the 

823.  mortgages   is  located.     Lomax   v.  Smyth, 

*  Benjamin  v.  Cavaroc,  2  Woods,  168.  50  Iowa,  223. 

6  Carroll  y.  IJeimel,  95  N.  Y.  252  ;  Down-  A   court   does   not   lose  jurisdiction   by 

ing  V.  Le  Du,  82  Cal.  471,  23    Pac.  Rep.  reason  of  the  fact  that  pending  the  suit  a 

202.  new  county  is  created  including  the  niort- 

fi  Knickerbocker  Life  Ins.  Co.  v.  Nelson,  gaged  land.     Tolnian  v.  Smith,  85  Cal.  280, 

8  Hun,  21.  24  Pac.  Rep.  743. 

365 


§  1444.]  FORECLOSURE   BY   EQUITABLE   SUIT. 

quirement,  this  action  is  not  local,  bat  transitory,  and  a  bill  may  be 
brought  wherever  there  is  jurisdiction  of  the  parties.  The  titles  to 
the  land  cannot  be  investigated.^  The  courts  in  England  regard 
the  right  to  redeem  as  a  mere  personal  right,  and  not  as  an  estate 
in  a  proper  technical  legal  sense,  and  on  this  ground  take  jurisdic- 
tion of  the  foreclosure  of  land  situated  in  the  colonies,  when  they 
have  jurisdiction  of  the  parties.'^  A  court  of  chancery,  acting  pri- 
marily in  personam  and  not  merely  m  rem,  may,  by  virtue  of  its 
jurisdiction  of  the  parties,  make  a  decree  respecting  property  situ- 
ated out  of  the  jurisdiction,  and  may  enforce  the  decree  by  process 
against  the  defendant  of  whom  it  has  jurisdiction. 

The  court  may  decree  the  foreclosure  of  a  mortgage  which  em- 
braces property  out  of  the  State  as  well  as  within  it,  such,  for  in- 
stance, as  a  railroad  existing  in  two  or  more  States.^  But  neither 
the  decree  nor  the  conveyance  under  it,  except  this  be  by  the  per- 
son in  whom  the  title  is  vested,  can  operate  beyond  the  jurisdic- 
tion of  the  court.^     Thus,  if   a  decree  of  foreclosure  be  entered  in 


An  objection,  that  the  comiilaint  does  not 
show  that  the  premises  were  so  situated, 
will  not  prevail  where  the  description  in 
the  mortgage,  annexed  to  and  made  part  of 
the  complaint,  shows  that  the  mortgaged 
premises  were,  at  the  time  the  suit  was 
commenced,  in  a  legal  subdivision  which 
the  court  judicially  knows  to  have  been 
within  the  boundaries  of  the  county  in  which 
the  suit  was  brought.  Scott  v.  Sells,  88 
Cal.  599,  26  Pac.  Rep.  350. 

1  Paget  V.  Ede,  L.  R.  18  Eq.  118  ;  Toller 
V.  Carteret,  2  Vern.  494  ;  Broome  v.  Beers, 
6  Conn.  198-207;  Palmer  v.  Mead,  7  Conn. 
149,  157;  Kinney  v.  McCleod,  9  Tex.  78; 
Caufman  v.  Sayre,  2  B.  Mon.  202 ;  Owings 
V.  Beall,  3  Litt.  103  ;  Grace  v.  Hunt,  Cooke, 
341  ;  Cole  v.  Conner,  10  Iowa,  299  ;  Fin- 
nagan  v.  Manchester,  12  Iowa,  521. 

If  the  statute  of  the  State  also  provides 
that,  "  if  the  county  designated  in  the  com- 
plaint be  not  the  proper  county,  the  ac- 
tion may  uotwithttanding  be  tried  therein, 
unless  the  defendant,  before  the  time  of 
answering  expires,  demands  in  writing  that 
the  trial  be  had  in  the  proper  county,"  the 
latter  provision  is  a  qualification  of  the 
former,  and  the  defendant  simply  has  a  per- 
sonal right  to  have  the  action  tried  in  the 
county  in  which  the  land  is  situated,  and 
may  waive  this  right  by  not  insisting  upon 
it  or  by  default.     Territory  v.  Judge,  5  Dak. 

366 


275,  38  N.  W.  Rep.  439 ;  O'Neil  v.  O'Neil, 
54  Cal.  187;  Lane  v.  Burdick,  17  Wis.  92; 
March  v.  Lowry,  16  How.  Pr.  41;  Gill  v. 
Bradley,  21  Minn.  15. 

In  Iowa  the  Code  is  not  imperative  in 
directing  the  suit  to  be  brought  in  the  county 
where  the  land  is  situated.  It  may  be 
brought  in  another  county  if  personal  ser- 
vice of  the  process  is  had,  so  that  the  court 
in  such  other  county  acquires  jurisdiction  of 
the  defendant,  and  can  render  a  personal 
judgment  against  him  ;  and,  having  acquired 
such  jurisdiction  and  rendered  personal 
judgment,  the  court  will  not  require  him  to 
institute  another  suit  to  obtain  a  decree  of 
foreclosure,  but  will  render  such  decree  al- 
though the  land  is  in  another  county.  But 
the  action,  so  far  as  the  enforcement  of  the 
mortgage  is  concerned,  is  strictly  in  rem, 
and  as  such  must  be  brought  in  the  county 
where  the  land  lies.  If  the  service  of  pro- 
cess is  by  publication  only,  the  suit  must  be 
in  the  county  where  the  land  is.  Iowa  Loan 
&  Trust  Co.  V.  Day,  63  Iowa,  459,  19  N.  W. 
Rep.  301  ;  Equitable  Life  Ins.  Co.  v.  Glea- 
son,  56  Iowa,  47,  8  N.  W.  Rep.  790. 

2  Paget  V.  Ede,  L.  R.  18  Eq.  118. 

3  Mead  v.  N.  Y.,  Housatonic  &  Northern 
R.  R.  Co.  45  Conn.  199;  Jones  on  Corp. 
Bonds  &  Mortg.  §  360. 

i  Watkins  v.  Holman,  16  Pet.  25;  Booth 
V.  Clark,  17  How.  322. 


JURISDICTION,   AND   THE   OBJECT   OF   THE   SUIT.  [§  1445. 

New  York  of  a  mortgage  upon  land  in  Connecticut,  and  a  referee 
appointed  by  the  court  sells  the  land  and  gives  a  deed  to  the  pur- 
chaser, the  deed  will  be  held  to  convey  no  title  to  the  land  in  Con- 
necticut, and  the  rights  of  the  parties  in  respect  to  such  land  will 
remain  unaffected  by  the  proceedings  had  in  New  York.^ 

In  those  States  in  this  country  where  the  mortgage  is  considered 
a  mere  lien,  and  the  legal  estate  as  remaining  in  the  mortgagor,' 
the  decree  operates  either  to  deprive  the  mortgagor  of  that  estate, 
by  vesting  it  in  the  mortgagee  as  by  strict  foreclosure,  or  by  sale 
to  convey  it  to  the  purchaser,  and  therefore  would  be  regarded  as 
a  local  action.  If  a  sale  of  the  property  is  asked  for,  as  this  oper- 
ates in  rem,  jurisdiction  is  restricted  to  the  local  court  of  the  county 
in  which  the  land  lies.^ 

1445.  It  is  not  proper  in  a  foreclosure  suit  to  try  a  claim 
of  title  paramount  to  that  of  the  mortgagor.  The  only  proper 
object  of  the  suit  is  to  bar  the  mortgagor  and  those  claiming 
under  him.^  Whether  the  claim  of  title  be  made  under  a  convey- 
ance by  a  third  party  prior  to  the  mortgage  or  subsequent  to  it,  it 
is  not  a  proper  subject  of  determination  in  a  foreclosure  suit;  nor  is 
a  claim  under  a  conveyance  by  the  mortgagor  made  prior  to  the 
mortgage.^  Such  adverse  claims  of  title  are  generally  matters  of 
purely  legal  jurisdiction.  A  claim  under  a  tax  title  is  one  which 
cannot  be  considered  in  a  foreclosure  suit,  unless  it  affects  the  equity 

1  Farmers'  Loan  &  Trust  Co.  v.  Postal  suit  a  suitable  proceeding,  for  the  trial  of 
Tel.  Co.  .55  Conn.  334,  11  Atl.  Rep.  184,  3  claims  to  the  legal  title  which  are  hostile 
Am.  St.  Eep.  53.  aud  paramount  to  the  interests  and  rights 

-  Campbell  v.  West,  86  Cal.  197,  24  Pac.  and  title  of  both  mortgagor  and  mortgagee. 

Rep.  1000;  Caufman  v.  Sayre,  2  B.  Mon.  Such   a  trial  will  neither  fall  in  with  the 

202.     "  A  mortgagee  may  either  compel  the  nature  of  the  jurisdiction,  or  the  genius  or 

sale  of  the  estate,  in  order  to  get  the  whole  frame  of  the  particular  remedy."     See,  fur- 

of  his  money  immediately,  or  else  call  upon  ther,  Rathbone  v.  Hooney,  58  N.  Y.  463  ; 

the  mortgagor  to  redeem  his  estate  pres-  Merchants'  Bank  v.  Thomson,  55  N.  Y.  7  ; 

ently,  or  in    default  thereof  to  be  forever  Cuming  v.  Smith,  6  N.  Y.  82;  Brundage  v. 

foreclosed  from  redeeming  the   same;  and  Missionary  Society,  60  Barb.  204 ;  Boiling 

though  in  the  latter  case  the  decree  might  v.  Pace  (Ala.),  12  So.  Rep.  796;  §§  1439, 

be  supposed  to  properly  act  on  the  person  1440. 

of  the  mortgagor,  in  the  former  case  it  acts  In  Connecticut,  under  §  12  of  the  Practice 
emphatically  on  the  thing  mortgaged.  Ste-  Act,  any  person  may  be  made  a  defendant 
vens  V.  Perry,  48  Fed.  Rep.  7  ;  Wood  v.  Mas-  who  claims  an  interest  adverse  to  the  plain- 
tick,  2  Wash.  T.  64,  3  Pac.  Rep.  612  ;  Ow-  tiff,  or  whom  it  is  necessary  to  bring  in  for  a 
ings  V.  Beall,  3  Litt.  (Ky.)  103.  And  see  complete  determination  of  any  matters  in- 
Chadhourne  v.  Oilman,  29  Iowa,  181.  volved  in  the  suit.     An   adverse   claimant 

2  Pelton  V.  Farmin,  18  Wis.  222;  Palmer  may  therefore  be  made  a  party  defendant  to 
V.  Yager,  20  Wis.  91 ;  Ilekla  F.  Ins.  Co.  v.  to  a  foreclosure  suit.     De  Wolf  v.  Sprague 
Morrison,  56  Wis.  133,  14  N.  W.  Rep.  12;  Manuf.  Co.  49  Conn.  282,  304,  308. 
Summers  v.   Bromley,    28   Mich.   125,  per  *  San  Francisco  v.  Lawton,  18  Cal.  465, 
Graves,  J.     "A  court  of  equity  is  not  the  79  Am.  Dec.  187. 

apijropriate  tribunal,  nor  is  a  foreclosure 

367 


§  1445.]  FORECLOSURE   BY   EQUITABLE   SUIT. 

of  redemption.^  Even  if  a  party  having  paramount  title  is  made 
a  party  and  a  judgment  is  entered  after  a  hearing,  it  will  not  bind 
his  interest,  but  will  be  set  aside  on  application.- 

The  rule,  that  adverse  titles  cannot  be  litigated  in  a  foreclosure 
suit,  ap23lies  only  to  interests  not  subject  to  the  mortgage.  It  is 
proper  to  try  the  question  whether  the  property  is  community  or 
separate  property.^  Questions  of  priority  of  lien  as  between  two 
mortgages  by  the  same  mortgagor  may  properly  be  determined  in 
a  foreclosure  of  one  of  them.^  Questions,  too,  of  priority  between 
the  owners  of  different  parcels  of  land  mortgaged  together  may  be 
determined,  and  the  order  in  which  they  shall  be  sold  fixed.*' 

There  are  cases,  however,  which  hold  that  when  the  plaintiff  in 
a  foreclosure  action  makes  any  person  defendant,  alleging  "  that  he 
claims  to  have  some  interest  or  lien  upon  the  mortgaged  premises,  or 
some  part  thereof,  which  lien,  if  any,  has  accrued  subsequently  to  the 
time  of  said  mortgage,"  such  defendant  may  by  his  answer  set  up 
a  paramount  claim  to  the  mortgaged  premises,  or  to  some  part 
thereof,  and  that  such  right  may  be  tried  and  adjudged  in  the  fore- 
closure action.  The  only  way  the  plaintiff  can  avoid  the  trial  of 
the  right  of  the  defendant  so  brought  into  court  by  him,  as  to  his 
paramount  title,  is  to  discontinue  his  case  as  to  such  defendant,  so 
that  he  may  not  be  prejudiced  by  the  judgment  to  be  entered  in  the 
foreclosure  action.^ 

If  a  claim  paramount  to  the  mortgage  is  set  up  by  a  defendant, 
and  this  question  is  litigated,  both  parties  will  be  bound  by  the  de- 
cree. Thus,  where  a  bill  alleges  that  defendant  asserts  some  claim 
to  or  interest  in  the  property,  but  that  whatever  interest  he  has  is 
subordinate  to  the  mortgage,  and  prays  only  that  all  claims  imder 
the  mortgagor  be  foreclosed,  and  such  defendant  sets  up  in  his  an- 
swer a  paramount  claim,  and  the  same  is  litigated  without  objec- 
tion and  decided  in  his  favor,  the  decree  cannot  be  attacked  on 
appeal  on  the  ground  that  the  question  could  not  properly  be  liti- 
gated in  that  action." 

1  Kelsey  v.  Abbott,  13  Cal.  609  ;  §  1440.     Wis.  93 ;  Bell  v.  Pate,  47  Mich.  468,  11  N. 

2  Corning  v.  Smith,  6  K  Y.  82;  Lewis  v.    W.  Rep.  275. 

Smith,  9  N.  Y.  502,  61  Am.  Dec.  706  ;  Era-  ^  j^^ew  York  Life  Ins.  &  Trust  Co.  v.  Mil- 

igrant  Industrial  Sav.  Bank  v.  Goldman,  75  nor,  1  Barb.  Ch.  353. 

N.  Y.  127  ;  Eagle  Fire  Co.  v.  Lent,  6  Paige,  6  Lego  v.  Medley,  79  Wis.  21 1,  48  N.  W. 

635;  Adams  v.  McPartlin,  11  Abb.  N.  C.  Rep.   375;  Wickes  v.   Lake,  25  Wis.    71; 

369.  Roche  v.  Knight,  21  Wis.  324  ;  Newton  v. 

3  Tolman  v.  Smith,  85  Cal.  280,  24  Pac.  Marshall,  62  Wis.  8-17,  21  N.  W.  Rep.  803. 
Rep.  743.  '  Boiling   v.  Pace    (Ala.),   12  So.  Rep. 

*  Iowa  Co.  V.  Mineral  Point  R.  R.  Co.  24    796  ;  Helck  v.  Reinheimer,  105  N.  Y.  470, 

368 


JURISDICTION,    AND    THE    OBJECT    OF   THE   SUIT.       [§§  1446-1448. 

A  prior  mortgagee  may  elect  for  himself  the  time  and  manner 
of  enforcing  his  security,  and  cannot  be  compelled  to  enforce  it  by 
being  made  a  party  to  a  suit  by  a  junior  incumbrancer  to  foreclose 
his  lien.  A  junior  mortgagee  who  has  bi'ought  a  suit  to  enforce  his 
own  mortgage,  to  which  he  has  made  the  prior  mortgagee  a  party, 
cannot  set  up  in  answer  to  a  suit  of  foreclosure  by  the  prior  mort- 
gagee that  he  had  already  commenced  a  foreclosure  suit,  and  had 
made  the  prior  mortgagee  a  party  defendant.  Such  a  defence  is 
frivolous.^ 

1446.  It  is  proper  in  a  foreclosure  suit  to  determine  the 
right  of  the  mortgagor  to  remove  a  building  erected  by  him  on 
the  land,  and  to  direct  that  the  land  be  sold  subject  to  such  right. 
If  the  building  has  been  removed  and  sold,  the  court  may  determine 
the  ownership  of  the  building.  This  is  not  a  litigation  of  the  title 
to  the  mortgaged  property .^  This  is  incident  to  the  general  power 
and  authority  of  the  court  to  define  and  describe  in  its  judgment 
the  property  to  be  sold.  Such  a  question  should  be  settled  before 
the  sale,  so  that  the  sheriff  may  know  what  he  is  selling  and  the 
purchaser  may  know  what  he  is  buying.  In  the  mean  time  the 
mortgagor  may  be  enjoined  from  impairing  the  security  by  removing 
the  building,  which  is  presumably  a  part  of  the  freehold.^ 

1447.  A  court  of  equity  will  prevent  an  improper  use  of  its 
process,  even  in  a  legal  way,  as,  for  instance,  wlien  it  is  apparent 
that  the  object  of  the  foreclosure  suit  is  not  to  procure  the  satisfac- 
tion of  the  debt,  but  to  obtain  a  different  end  by  coercing  the  owner 
of  the  equity  of  redemption.  This  was  done  in  a  case  where  a 
wife  who  owned  the  fee  tendered  the  mortgagee  the  amount  of  his 
debt,  and  asked  for  an  assignment  of  the  mortgage,  which  he  re- 
fused to  make,  and  the  evidence  showed  that  the  mortgage  was 
being  foreclosed  in  the  interest  of  the  husband,  in  order  to  force  her 
to  settle  a  suit  by  her  to  annul  the  marriage,  and  litigation  was 
then  pending  about  other  property.  As  a  new  mortgage  could  not  be 
obtained  on  account  of  the  litigation,  the  court  ordered  that  if  the 
mortgagee  refused  to  assign  it  the  proceedings  should  be  stayed.* 

1448.  A  trust  deed  made  for  the  security  of  all  the  creditors 
of  the  grantor  who  are  not  named,  and  providing  for  a  sale  by  the 
trustee  only   upon   request  made  by  a  majority   of    the    creditors, 

12  N.  E.  Rep.  37;  Barnard  v.  Onderdonk,  50  N.  W.   Rep.  1084,    Morse,  J.,   dissent- 

98  N.  Y.  158,  163;  Jordan  v.  Van  Epps,  85  ing. 

N.  Y.  427,  435.  3  Brown  v.  Keeney  Asso.  59  N.  Y.  242. 

1  Adams  v.  McPartlin,  11  Abb.  N.  C.  *  §  1801;  Foster  i>.  Hugbes,  51  How.  Pr. 
369.  20.     See,   also,   a  similar  case,   Struve  v. 

2  Partridge  v.  Hemenway,  89  Micb.  454,    Cbilds,  63  Ala.  473. 
VOL.  II.  24  369 


§§  1449,  1450.]      FORECLOSURE   BY  EQUITABLE   SUIT. 

should  be  enforced  by  a  bill  in  equity,  under  which  the  necessary 
parties  can  be  convened,  and  their  rights  ascertained  and  adjusted.^ 
Tbe  court  will  in  any  case  undertake  the  supervision  of  the  execu- 
tion of  the  trust.  The  decree  of  sale  should  embody  the  provi- 
sions of  the  deed  in  regard  to  the  sale ;  but  these  provisions  may  be 
altered  when  necessary,  and  in  such  case  the  sale  must  be  in  accord- 
ance with  the  terras  of  the  decree.^ 

1449.  In  the  foreclosure  of  a  title  bond  the  purchaser  is  treated 
as  a  mortgagor  for  all  purposes  of  the  suit.  The  rights  of  the  par- 
ties are  the  same  as  those  of  the  parties  to  a  formal  mortgage. 
Persons  interested  in  the  property  not  made  parties  to  the  suit  are 
not  affected  by  the  decree.^  As  in  the  case  of  the  foreclosure  of  a 
mortgage,  the  plaintiff  may  have  judgment  for  foreclosure,  and  for 
the  amount  due  on  the  bond  at  the  same  time.*  A  decree  of  fore- 
closure may  be  entered  under  a  prayer  for  general  relief,  although 
not  specifically  asked  for.^  A  decree  for  tiie  sale  of  the  land  de- 
scribed in  the  bond,  and  payment  of  the  proceeds  upon  the  judg- 
ment, may  further  provide  that  upon  full  payment  the  vendor  shall 
convey  the  property  to  the  purchaser,  by  a  deed  containing  all  cove- 
nants stipulated  for  in  the  bond.*^ 

If  the  vendor  retaining  the  legal  title  assigns  a  promissory  note 
received  in  consideration  of  the  sale,  the  assignee  upon  non-payment 
of  it  may  proceed  to  foreclose  in  his  own  name,  as  if  it  were  a  mort- 
gage note.' 

A  mortgage  of  a  lease  may  be  foreclosed  by  a  sale  of  the  lease. 
The  purchaser  in  such  case  becomes  an  assignee  of  the  lease  and 
term,  and  takes  subject  to  the  obligation  to  pay  rent.*^ 

1450.  A  tender  of  payment  not  accepted  does  not  prevent  the 
mortgagee's  proceeding  with  a  bill  to  foreclose.^  There  may  be 
questions  as  to  the  amount  due  on  the  mortgage,  and  these  can  be 
settled  and  the  mortgage  enforced  for  what  is  actually  due  only  by 

1  Hudgins  v.  Lanier,  23  Gratt.  494.  ^  See  §§  886-893.     In  a  c.^ise  where   the 

2  Michie  I'.  Jeff ries,  21  Gratt. 334.  interest  on  a  mortgage  debt  was  not  paid 
8  Dukes  V.  Turner,  44  Iowa,  575.  when  due,  and  the  mortgagor  informed  the 
♦  MuUin  V.  Bloomer,  11  Iowa,  360;  Mer-  mortgagee  the  next  day  that  he  was  ready 

ritt  V.  judd,  14  Cal.  59;  Kiernan  v.  Bhick-  to  pay  it,  but  made  no  tender,  and  the  mort- 

well,  27  Ark.  235  ;  Hartman  v.  Chirke,  11  gagee  directed  his  solicitor  to  foreclose,  but 

Iowa,  510.     And  see  Lewis  r.  Boskins,  27  the  solicitor  before  doing  so  notified   the 

ji^xk.  61.  mortgagor,  and  waited  several  days  before 

5  Herring  v.  Neely,  43  Iowa,  157.  filing  the  bill,  it  was  held  that  the  bill  was 

6  Wall  V.  Ambler^  11  Iowa,  274;  §  235.  properly  brought,  and  that   there   was  no 

7  Blair  r.  Marsh,  8  Iowa,  144.  hardship  of  which  the  mortgagor  could 
«  People  V.  Dudley,  58  N.  Y.  323  ;  Catlin  complain.     Probasco  v.  Vaneppes  (N.  J.), 

V.  Grissler,  57  N.  Y.  363  ;  Graham  v.  Bleakie,     13  Atl.  Rep.  598. 
2  Daly,  55  ;  Pardee  v.  Steward,  37  Hun,  259. 
370 


THE   BILL   OR   COMPLAINT.  [§  1451. 

a  foreclosure  suit.  Even  the  pendency  of  a  bill  by  the  mortgagor 
to  redeem  does  not  suspend  the  right  to  foreclose.  The  mortgagor, 
notwithstanding  a  decree  for  redemption,  may  make  default  when 
the  actual  time  for  payment  arrives.^  In  a  foreclosure  suit,  how- 
ever, the  mortgagor  is  bound  to  pay  the  sum  that  shall  be  found 
due,  or  else  to  stand  foreclosed  of  his  right  of  redemption.  Until 
the  mortgage  debt  is  actually  paid  off,  the  mortgagee  retains  all  the 
rights  and  remedies  incident  to  liis  mortgage.  By  statute,  however, 
in  some  States,  a  bill  must  be  dismissed  upon  the  defendant's  bring- 
ing into  court  at  any  time  before  the  decree  of  sale  the  principal 
and  interest  due  with  costs.^  Should  there  be  a  disagreement  as  to 
costs,  the  party  making  the  tender  may  apply  to  the  court  for  direc- 
tions as  to  the  amount  of  them.-^  Although  the  tender  should 
properly  be  brought  into  court,  an  irregularity  in  this  respect  will 
be  considered  waived  if  the  answer  of  the  defendant  making  the 
tender  be  accepted  and  acted  upon  without  objection.^ 

It  has  been  observed  in  a  former  chapter  that  in  several  States  a 
tender  of  the  amount  due  on  a  mortoao-e  diseharcjes  the  lien,  but 
does  not  discharge  the  debt.  The  consequence  of  this  doctrine  is, 
that  upon  proof  of  a  tender  of  the  debt,  together  with  any  costs 
incurred  at  the  time,  an  action  for  foreclosure  will  be  defeated  ;  but 
as  the  debt  is  not  discharged  a  judgment  for  that  may  still  be  en- 
tered and  enforced  ;^  or,  where  the  law  and  equity  systems  are  dis- 
tinct, an  action  at  law  may  be  maintained  upon  the  debt.^ 

II.   The  Bill  or  Complaint. 

1451.  General  principles.  —  It  is  not  proposed  to  set  forth,  ex- 
cept quite  briefly,  the  rules  and  principles  upon  which  a  bill  in 
equity  to  foreclose  a  mortgage  is  to  be  drawn,  prosecuted  and  de- 
fended. Although  the  more  important  features  of  the  pleadings 
are  the  same  wherever  this  remedy  is  used,  yet  in  matters  of  prac- 
tice there  is  much  diversity  in  the  different  States  arising  from 
enactments  of  different  systems  of  procedure,  and  the  adoption  of 
different  rules  of  practice  by  the  courts.  As  already  noticed  when 
treating  of  the  parties  to  an  equitable  action  for  foreclosure,  sev- 

1  Grugeon  v.  Gerrard,  4  Young  &  C.  u.  Ramsdcll,  16  How.  Pr.  59;  Bartow  v. 
119.  Cleveland,  IC  How.  Pr.  364. 

2  As  in  New  York  :  see  Allen  v.  Malcolm,  *  Roosevelt  v.  N.  Y.  &  Har.  R.  R.  Co.  30 
12  Abb.  Pr.  N.  S.  335 ;  Hartley  v.  Tatham,  How.  Pr.  226,  45  Barb.  554. 

1  Keyes,  222;  Kortright  v.  Ca'dy,  21  N.  Y.  ^  McCoy  v.  O'Donnell,  2  Thomp.  &  C. 
343,  78  Am.  Dec.  145.  "  671. 

3  Morris  v.  Wheeler,  45  N.  Y.  708  ;  Pratt        ^  §  893  ;  as  in  New  York  before  the  Code  : 

Mann  v.  Cooper,  1  Barb.  Ch.  185. 

371 


§  1452.]  FORECLOSURE   BY   EQUITABLE   SUIT. 

eral  States^  have  adopted  and  made  applicable  to  all  civil  actions 
alike  codes  of  procedure  in  which  the  equity  method  of  pleading 
and  practice  in  a  simple  form  is  preserved.  The  special  provisions  of 
these  codes  relating  to  mortgages  are  there  given.  The  general 
theory  and  form  of  the  pleadings  as  a  whole  are  determined  by 
provisions  that  the  complaint  or  petition  shall  contain  "a  plain 
and  concise  statement  of  the  facts  constituting  the  cause  of  action 
without  unnecessary  repetition,"  and  "  a  demand  of  the  relief  to 
which  the  plaintiff  supposes  himself  entitled.  If  a  recovery  of 
money  be  demanded,  the  amount  thereof  shall  be  stated."^  The 
answer  must  contain :  "1.  A  general  or  specific  denial  of  each 
material  allegation  of  the  complaint  (or  petition)  controverted  by 
the  defendant,  or  of  any  knowledge  or  information  thereof  sufficient 
to  form  a  belief;  2.  A  statement  of  any  new  matter  constituting  a 
defence  or  counter-claim  (or  set-off),  in  ordinary  and  concise  lan- 
guage, without  repetition."  ^  These  provisions  are  merely  the  es- 
sential requisites  of  a  bill  and  answer  in  equity  ;  and  therefore  the 
more  important  decisions  relating  to  the  substance  of  the  pleadings 
apply  in  those  States  in  which  foreclosure  is  by  a  formal  bill  in  a 
chancery  court,  and  equally  in  those  having  these  codes  of  pro- 
cedure. 

1452.  The  general  requisites  of  the  complaint  are,  that  it  shall 
allege  the  execution  and  delivery  of  the  mortgage  and  of  the  note 
or  bond  secured  by  it ;  the  names  of  the  parties  to  it ;  the  date  and 
amount  of  it ;  when  and  where  recorded ;  a  description  of  the 
premises ;  the  amount  claimed  to  be  due  ;  and  the  default  upon  which 
the  right  of  action  has  accrued.^  It  must  show  also  that  the  com- 
plainant is  entitled  to  maintain  the  action,  and  that  the  defendants 
have,  or  claim  to  have,  certain  interests  in  the  premises,  or  liens 
upon  them.  If  the  plaintiff  is  not  the  mortgagee,  his  right  to 
maintain  the  action,  by  virtue  of  an  assignment,  bequest,  or  other- 
wise, must  be  set  forth  with  reasonable  fulness  and  certainty.  The 
terms  and  conditions  of  both  the  mortgage  and  of  the  bond  or  note 
secured  by  it  should  be  set  out.  This  may  be  done  by  proper  re- 
citals in  the  complaint  itself,  or  by  annexing  copies  of  these  in- 
struments, which  are  referred  to  in  the  complaint  and  made  part  of 
it.  The  relief  which  is  sought  should  be  fully  and  explicitly 
stated.^  A  decree  of  foreclosure  of  a  mortgage  should  not  be  de- 
nied for  want  of  proper  prayer  for  relief,  if  such  relief  is  embraced 
within  the  issue  made  by  the  pleadings.*^ 

1  See  §  1367.  *  Coulter  v.  Bower,  64  Hoav.  Pr.  132. 

2  See  Pomeroy's  Remedies,  §  43.3.  ^  See  §  1578. 

2  See  Pomeroy's  Remedies,  §  583.  ^  Johnson    v.   Polhemus,   (Cal.)  33  Pac. 

372 


THE   BILL   OR   COMPLAINT.  [§§  1453,  1454. 

In  those  States  in  which  a  personal  judgment  may  be  rendered 
for  the  debt,  though  there  is  no  judgment  for  foreclosure  and  sale, 
a  complaint  which  fails  to  allege  the  facts  essential  to  a  foreclosure, 
but  does  sufficiently  set  out  the  note  secured,  is  not  demurrable, 
since  plaintiff  is  entitled  to  a  personal  judgment  on  the  note.^ 

1453.  Pacts  not  inconsistent  with  the  bill  may  be  proved. 
Tiie  evidence  may  in  some  respect  show  a  different  state  of  facts 
from  that  alleged  in  the  bill ;  and  yet  this  will  be  sufficient  if  the 
facts  shown  are  not  inconsistent  with  the  allegations ;  as,  for  exam- 
ple, the  amount  actually  due  may  be  shown  to  be  less  than  the 
amount  alleged  to  be  due.^ 

1454.  An  allegation  of  the  execution  and  delivery  of  the 
mortgage  is  a  sufficient  allegation  of  its  proper  execution  and  of 
its  validity .3  An  allegation  of  the  execution  of  the  mortgage  is 
also  sufficient  without  any  averment  of  title  in  the  mortgagor.  He 
is  estopped  by  his  deed  from  denying  his  title ;  and,  whatever  his 
title  may  be,  the  mortgage  may  be  foreclosed  against  him.*  The 
possession  of  the  mortgage  by  the  mortgagee,  duly  executed,  ac- 
knowledged, and  recorded,  is  presumptive  evidence  of  delivery.^ 

The  witnessing  and  acknowledgment  of  the  mortgage,  where 
made  essential  to  the  validity  of  it,  should  be  alleged  ;  but,  if  the 
plaintiff  be  an  assignee  of  the  mortgage,  these  facts  are  not  pre- 
sumably within  his  knowledge,  and  he  may  properly  aver  them 
upon  information  and  belief  only.^ 

The  mortgage  and  the  note  or  bond  secured  by  it  are  usually 
in  some  manner  made  part  of  the  complaint.  Copies  of  them  may 
be  set  out  in  the  complaint  or  annexed  to  it.  It  is  not  sufficient 
merely  to  file  the  originals  or  copies  with  the  complaint  without  re- 
ferring to  them  and  making  them  part  of  it.'^  But  it  is  sufficient 
if  the  bill  sets  out  the  substance  of  the  mortgage.^ 

Rep.    908.     In   this  case  the  complaint  al-  i  Taylor  i;.  Hearu,  131  Ind.  537,  31  N.  E. 

leged   tlie   payment  of    the   contract,    and  Rep.  201. 

that  there  was  a  balance  due  on  the  note,  -  Collins  v.  Carlile,  13  111.  254. 

and  asked  judj^ment  on  the  note  and  fore-  ^  Moore  ;;.   Titman,  33  111.  358  ;  McAI- 

closure  of  the  mortgage.     The  answer  al-  lister  v.  Plant,  54  Miss.  106. 

leged  the  payment  of  the  note,  and  that  the  *  Shed  v.  Garfield,  5  Vt.  39. 

contract  had  been  cancelled  by  agreement  ^  Commercial  Bank  of  N.  J.  v.  Reckless, 

of  the  mortgagee.     The  court  found  that  5  N.  J.  Eq.  650. 

the    note  had  been  paid,  but  that  the  con-  ^  Fairbanks  i'.  Isham,  16  Wis.  118. 

tract  was  in  force  and  unpaid.     //eW,  that  "'   Hiatt   v.   Goblt,  18    Ind.   494;  Herren 

plaintiffs  were   entitled    to  decree  of  fore-  v.  Clifford,    18    Ind.    411.      And   see    Du- 

closure  for  the  amount  due  on  the  contract,  mell  v.  Terstegge,  23  Ind.  397  ;    Brown  v. 

*  Cecil  I'.  Dvnes,  2  Ind.    266.      The    acknowledgment  being  no  part  of    the   cause 

373 


§§  1455,  1456.]      FORECLOSURE  BY  EQUITABLE   SUIT. 

If  properly  set  forth  in  the  complaint,  the  production  of  the 
note  and  mortgage,  and  proof  of  service  of  the  summons,  is  suffi- 
cient to  justify  a  decree  where  no  defence  is  interposed.^  If  the 
answer  admits  the  execution  of  the  mortgage  and  note,  and  does 
not  deny  that  the  amount  claimed  in  the  petition  is  due,  there  is 
nothing  for  the  phiintiff  to  prove.^ 

1455.  Proof  of  execution.  —  The  mortgage  and  the  personal 
obligation  accompanying  it,  unless  admitted,  must  be  proved  by 
competent  evidence.^  If  these  instruments  be  attested  by  a  wit- 
ness, the  execution  must  be  proved  by  him,  unless  his  attendance 
cannot  be  procured,  or  other  circumstances  make  other  evidence, 
such  as  proof  of  the  handwriting,  competent.  When  the  execution 
is  contested  by  a  person  who  is  not  a  party  to  the  deed,  the  admis- 
sion of  the  mortgagor  is  not  sufficient  if  the  securities  are  attested 
by  a  witness.*  The  mortgagee's  possession  of  the  mortgage  and 
the  note  or  bond  secured  by  it  is  strong  evidence  of  their  delivery, 
and  the  defendant's  answer  under  oath  alleging  that  they  had  not 
been  delivered  is  not  enough  to  overcome  the  presumption  of  deliv- 
ery arising  from  the  mortgagee's  possession.^ 

In  an  action  upon  a  bond  and  mortgage  executed  by  one  as  exec- 
utor and  trustee  in  his  representive  capacity,  it  is  not  necessary  to 
allege  and  prove  that  the  raortgagor  was  in  fact  such  executor  and 
trustee,  and  the  facts  relating  to  his  appointment.^ 

1456.  The  complainant  must  show  by  his  bill  either  that 
he  is  the  mortgagee,  or  that  he  has  legal  title  to  the  security  by 
assignment  or  otherwise.  It  is  not  necessary  in  so  many  words 
to  aver  that  the  complainant  has  title  to  the  mortgaged  premises; 
it  is  sufficient  to  aver  the  making  of  the  mortgage.'     The  estate 

Shearon,  17  Ind.  239;  Triplett  v.  Sayre,  ^  Kingsland  y.  Stokes,  25  Hun,  107. 
3  Dana,  590;  Harlan  r.  Murrell,  3  Dana,  "<  Bull  v.  Meloney,  27  Conn.  560.  The 
180.  A  copy  of  the  note  need  not  be  set  allegation  in  this  case  was  that  the  re- 
out  when  the  action  is  only  for  the  fore-  spondent,  to  secure  the  debt  described, 
closure  of  the  mortgage.  Shin  v.  Bosart,  "  did  execute  to  the  ])etitioner  a  deed  of  a 
72  Ind.  105.  certain  ])iece  of  land,"  described,  with  the 

1  Whitney   v.    Buckman,    13   Cal.    536 ;  condition. 

Harlan  v.    Smith,  6  Cal.  173;    Mickle   v.  In  Frink  v.  Branch,   16  Conn.  260,  268, 

Maxfield,    42   Mich.   304,   3   N.    W.    Rep.  Church,  J.,  says:    "It  is  not  often,  in  pro- 

961.  ceedings  of  foreclosure,  that  the  title  of  the 

2  Cooley  V.  Hobart,  8  Iowa,  358.  mortgage  is  directly  put  in  issue,  or  consti- 

3  Matteson  v.  Morris,  40  Mich.  52.  tutes  the  principal  subject  of  controversy; 
*  Leigh  V.  Lloyd,  35  Beav.  455  ;  Inman  although  the  entire  purpose  of  the  plaintiff 

V.  Parsons,  4  Madd.  271.  is,  in  default  of  payment,  to  make  a  perfect 

5  Long  V.  Kinkel,  36  N.  J.  Eq.  359.  title,  which  before  was  qualified ;    and  the 

of  action,  a  copy  of  the  certificate  need  not  be  set  out.      Sturgeon  v.  Daviess  Co.  65 
Ind.  302. 

374 


THE   BILL   OR   COMPLAINT.  [§  1457. 

or  interest  in  the  land  is  not  in  issue.  The  only  questions  are 
whether  the  mortgage  has  been  properly  executed,  and  the  com- 
plainant rightfully  holds  it  and  may  enforce  it.  The  complainant 
showing  primd  facie  title,  it  is  for  the  defendant  to  allege  and 
prove  that  he  has  no  title  ;  that,  for  instance,  the  mortgage  has 
been  discharged.  The  complainant  need  not  anticipate  the  de- 
fence, and  set  out  in  his  bill  the  facts  which  would  invalidate  the 
dischai'ge.^ 

1457.  Assignee's  title.  —  If  the  bill  be  bi-ought  by  an  assignee 
of  the  mortgage,  the  assignment  to  him  should  be  fully  and  dis- 
tinctly alleged.  The  same  technicality  in  pleading  required  at 
law  is  not  necessary  in  a  court  of  equity  ;  and  accordingly,  where 
the  bill  alleges  an  assignment  of  the  mortgage,  but  not  of  the  note 
or  bond,  it  is  sufficient  if  it  appears  substantially  from  the  bill  that 
the  debt  belongs  to  the  complainant.^  But  if  it  does  not  so  appear, 
a  failure  to  aver  that  the  bond  or  note  was  assigned  to  the  plaintiff, 
or  that  he  is  the  holder  or  owner  of  it,  has  been  held  a  fatal  de- 
fect.3  It  is  held,  however,  that  if  the  bill  alleges  an  assignment  of 
the  mortgage,  an  omission  to  allege  an  assignment  of  the  bond  does 
not  invalidate  the  judgment,  where  the  assignment  of  both  the 
bond  and  mortgage  appears  of  record,  and  the  referee's  report  of 
the  amount  due  refers  to  such  record.*  If  the  mortgage  was  given 
without  a  bond  or  other  exti'insic  written  evidence  of  the  debt  se- 

ground  of  his  application  is,  that  he  has  a  E.  H.  are  one  and  the  same  person.     An- 

mortgage  tills;   and  withont  an  averment  drews  i;.  Wynn  (S.   D.),   54   N.  W.    Rep. 

of   facts   constituting    such    title,   his    bill  1047. 

would  be  defective.  It  may  not  be  neces-  ^  Frink  v.  Branch,  16  Conn.  260,  268; 
sary  either  to  allege  or  prove  the  precise  Palmer  v.  Mead,  7  Conn.  149,  157  ;  Spear 
condition  of  the  title,  whether  it  be  in  fee  v.  Hadden,  31  Mich.  265  ;  Cornelius  v. 
or  in  tail,  for  life  or  for  years ;  but  it  seems  Halsey,  11  N.  J.  Eq.  27. 
to  us,  as  the  right  of  the  plaintiff  to  ask  ^  Cornelius  v.  Halsey,  11  N.  J.  Eq.  27  ; 
the  interference  of  the  court  depends  upon  Buckner  v.  Sessions,  27  Ark.  219 ;  Gill  v. 
some  title  in  himself  to  the  land  mort-  Truelsen,  .39  Mjnn.  373,  40  N.  W.  Rep. 
gaged,  either  legal  or  equitable,  that  it  is  254.  A  description  of  the  plaintiff  "  as 
incumbent  upon  him  to  establish  it  at  least  assignee  "  of  the  mortgagor  is  not  sufficient. 
prima  facie ;  and  of  course  the  defendant  The  assignment  of  the  estate  cannot  be 
must  have  a  corresponding  right  to  attack  implied  from  this.  But  contra,  see  Erean- 
it."  brack  v.  Rich,  2  Chand.  lOO;  Babbitt  v. 
In  an  action  by  Edward  H.  Andrews  to  Bowen,  32  Vt.  437.  A  copy  of  the  assign- 
foreclose  a  mortgage,  an  allegation  that  ment  need  not  be  set  out.  Stanford  v. 
the  defendant  made  a  mortgage  and  note  Broadway  Sav.  Co.  122  Ind.  422;  24  N. 
to  E.  II.  Andrews,  without  alleging  that  E.  Rep.  154;  Keith  u.  Champer,  69  Ind. 
the  plaintiff  and  said  E.  H.  Andrews  are  477. 

the  same  person,  or  that  the  plaintiff  is  the  ^  Hays  v,  Lewis.  17  Wis.  210.     And  see 

holder  and  owner  of  the  mortgage,  does  not  Pattie  v.  Wilson.  25  Kans.  326. 

state  a  cause  of  action.     This  court  cannot  *  Preston  v.  Loughran,  12  N.  Y.  Supp. 

take  judicial  notice  that  Edward    H.   and  313. 

375 


§  1458.]  FORECLOSURE  BY  EQUITABLE  SUIT. 

cared,  an  assignment  of  the  mortgage  passes  the  title  to  the  debt ; 
and  a  complaint  which  alleges  that  the  mortgage  was  given  for  a 
part  of  the  purchase-money,  and  sets  out  the  assignment  of  it  to 
the  plaintiff,  is  sufficient.^  The  bill  need  not  aver  the  record  of  the 
assignment,^  for  there  is  no  legal  necessity  for  it.^  The  fact  that 
the  assignee  holds  the  mortgage  merely  as  security  does  not  affect 
his  right  to  recover,  but  goes  only  to  limit  his  interest  in  the  pro- 
ceeds.* An  assignee  who  files  a  bill  to  foreclose  one  of  several  mort- 
gage notes  should  account  for  the  other  notes,  but  upon  the  hearing, 
if  he  proves  the  payment  of  such  other  notes,  the  defect  in  his  bill 
may  be  disregarded.^ 

Other  liens  which  the  plaintiff  may  have  upon  the  property  he 
may  set  out  in  his  complaint  and  establish  beforehand,  or  may  pre- 
sent and  establish  a  claim  to  the  surplus  in  the  same  manner  as  any 
other  person.^ 

1458.  A  mortgagee  having  two  or  more  mortgages  upon  the 
same  premises  may,  under  the  several  codes,  include  them  in  one 
bill  for  foreclosure.  Several  suits  being  unnecessary,  he  will  be 
allowed  costs  in  one  only .7  If  one  mortgage  covers  only  a  part  of 
the  premises  included  in  the  other,  suit  should  be  brought  in  the 
first  place  for  the  foreclosure  of  the  mortgage  covering  the  entire 
premises,  as  then  a  second  suit  will  be  unnecessary.^ 

One  having  two  mortgages  on  the  same  property  may  file  his 
bill  for  the  foreclosure  of  both,  although  the  second  of  them  be 
not  due.  If  the  second  mortgage  becomes  due  before  the  decree, 
the  defendant  cannot  defeat  the  action  as  to  this  mortgage  by  ten- 
dering the  amount  due  on  the  first  mortgage  after  the  maturity 
of  the  second.^  If  the  last  mortgage  be  due,  but  only  a  part  of 
the  first  is  due,  the  plaintiff  is  entitled  to  a  decree  for  the  sale  of 
enough  of  the  mortgaged  premises  to  pay  both  mortgages,  unless 
the  defendant  pay  the  second  mortgage  and  all  that  has  become 
due  of  the  first.^*^ 

A  bill  to  foreclose  four  distinct  mortgages  of  different  dates, 
given  by  the   same    person,  and  owned    by  the  complainant,  per- 

1  Severance  v:  Griffith,  2  Lans.  38,  and  ^  pield  v.  Hawxhurst,  9  How.  Pr.  75; 
cases   cited;    Caryl   v.  Williams,    7    Lans.    Tower  r.  White,  10  Paige,  395. 

416  ;  Coleman  y.  Van  Rensselaer,  44  How.  ■?  §    1083;     lloosevelt    v.    Ellithorp,    10 

Pr.  368.  Paige,  415;    Wooster   v.   Case,    12   N.    Y. 

2  King  i;.  Harrington,  2  Aik.  33,  16  Am.  Supp.  769;  Oconto  County  v.  Hall,  42 
Dec.  675.  Wis.  59. 

3  Fryer  v.  Rockefeller,  63  N.  Y.  268.  ^  Demarest  v.  Berry,  16  N.  J.  Eq.  481. 

*  McKinney  v.  Miller,  19  Mich.  142.  ^  Hawkins  v.  Hill,  15  Cal.  499,  76  Am. 

5  Cooper  V.    Smith,    75    Mich.   247,   42  Dec.  499. 

N.  W.  Rep.  815.  i°  Hall  v.  Bamber,  10  Paige,  296. 
376 


THE  BILL   OR   COMPLAINT.  [§  1469. 

sonal  jiulgment  being  asked  only  against  the  mortgagor,  is  not  mul- 
tifarious.^ 

If  tlie  mortgages  do  not  cover  precisely  the  same  land,  a  consoli- 
dation for  actions  for  foreclosure  is  not  proper. ^ 

1459.  Foreclosure  for  instalment.  —  When  the  debt  is  pay- 
able by  instalments,  action  to  foreclose  may  be  brought  when  the 
first  instalment  falls  due  and  is  not  paid.^  If  the  mortgage  se- 
cures the  payment  of  several  notes,  it  may  be  foreclosed  upon  the 
non-payment  when  due  of  any  of  them.*  Foreclosure  may  be  had 
for  any  part  of  the  mortgage  debt,  whether  principal  or  interest, 
due  at  the  time,  and  no  more ;  and  when  the  mortgagee  elects  to 
sell  under  a  power  in  the  mortgage,  or  to  foreclose  in  chancery, 
he  can  only  sell  or  foreclose  for  the  amount  then  due  according 
to  the  terms  of  the  mortgage ;  and  if  he  sells  the  entire  estate, 
that  of  necessity  operates  to  release  the  security  for  the  amount 
not  due.^  If  after  a  foreclosure  sale  for  an  instalment,  and  before 
the  foreclosure  has  become  complete  by  the  expiration  of  the  time 
allowed  for  redemption,  the  owner  redeems,  then  the  foreclosure 
sale  is  in  effect  annulled,  and  the  same  land  may  be  sold  for  the 
satisfaction  of  the  other  instalments  of  the  mortgage  debt.^  For 
stronger  reasons  a  foreclosure  for  a  part  only  of  a  mortgage  debt, 
when  it  is  all  due,  operates  as  a  release  of  the  portion  not  embraced 
in  the  foreclosure.  The  mortgage  of  record  showing  that  the  en- 
tire debt  is  due,  and  a  portion  only  foreclosed,  all  persons  have  a 
right  to  conclude  that  the  other  part  of  the  debt  has  been  paid. 
The  lien  of  the  mortgage  is  released  as  to  creditors,  and  as  to  par- 
ties holding  the  land  under  the  prior  foreclosure  and  sale.' 

1  Torrent  v.  Hamilton  (Mich.),  54  N.  W.        2  Wooster  v.  Case,  12  N.  Y.  Supp.  769. 
Rep.  634.     "Here  all  of  the  defendants  are        ^  Qrattan  v.  Wiggins,  23  Cal.  16. 
proper  parties  to  the  foreclosure  of  the  first        *  Miller  v.  Remley,  35  lud.  539. 
mortgage.     The  ownership  of  all  the  mort-        ^  §1378;  Smith   v.  Smith,  32  III.   198; 

gages  is  in  complainant.     The  claims  are  of  Cleveland  ".  Booth,  43  Minn.  16,  44  N.  W. 

the  same  character.     The  proceeding  as  to  Rep.  670;   Standish  v.  Vosberg,  27  Minn, 

all  of  the  defendants  except  the  mortgagor  175,  6  N.  W.  Rep.  489  ;  Fowler  v.  Johnson, 

is  one  against  property.  .  .  .  The  interests  26  Minn.  338,  3  N.  W.  Rep.  986,  6  N.  W. 

of  all  the  defendants  are  best  subserved  by  Rep.  486;    Probasco  y.  Vaneppes   (N.  J.), 

avoiding  a  multiplicity   of   suits,  and   the  13   Atl.  Rep.  598;    McLean  v.  Presley,  56 

equities  of  each  and  all  can  be  as  well,  if  Ala.  211  ;  Johnson  v.  Buckhaults,  77  Ala. 

not  more  effectually,  protected  in  this  pro-  276  ;  Scheibe  v.  Kennedy,  64  Wis.  564,  25 

ceeding  as  in  four  separate  foreclosure  suits.  N.  W.  Rep.  646  ;    Hatcher  v.  Chanccy,  71 

Whatever  complications  exist  are  not  inci-  Ga.  689. 

dent  to  the  consolidation,  and  they  can  be        ^  Standish  v.  Vosberg,  27  Minn.  175,  6 

best  adjusted  in  a  single  proceeding,  where  N.  W.  Rep.  489. 

the  court  has  before  it  all  the  parties  and        7  Rains  v.  Mann,  68  111.  264.     And  see 

all  tlie  claims."     Per  McGrath,  C.  J.     See  Hughes  v.  Frisby,  81  111.  188. 
§  1460. 

377 


§  1459.]  FORECLOSURE   BY   EQUITABLE   SUIT. 

But  by  statute  in  several  States  a  portion  of  the  property  if  it 
be  divisible  may  be  sold  to  pay  the  instalment  due ;  and  then,  upon 
the  happening  of  another  default,  a  further  order  of  sale  may  be 
obtained.  If  the  premises  cannot  be  divided  the  whole  may  be 
sold  and  the  proceeds  paid  to  the  mortgagee,  subject  to  a  proper 
rebate  of  interest,  or  the  balance,  after  paying  the  amount  due,  may 
be  paid  into  court.^ 

When  a  decree  of  foreclosure  to  satisfy  a  part  of  the  mortgage 
debt  expressly  declared  that  the  property  should  be  sold  subject  to 
a  lien  to  secure  the  payment  of  the  notes  not  then  due,  and  at  the 
sale  the  premises  were  purchased  by  the  mortgagee,  it  was  held 
that  this  operated  as  a  satisfaction  of  the  entire  debt,  as  well  the 
portion  not  due  as  that  which  was.  The  purchaser  virtually  be- 
came a  mortgagor  to  the  extent  of  the  balance  of  the  mortgage 
debt.  No  action  at  law  can  afterwards  be  maintained  on  the  notes.^ 
But  the  mortgage  may  be  foreclosed  for  an  instalment  of  the  inter- 
est due  without  waiting  for  the  maturity  of  the  note,  and  a  sale 
may  be  had  of  so  much  of  the  mortgaged  premises  as  will  be  neces- 
sary to  pay  this  with  costs  of  suit.'^  Interest  falling  due  yearly,  on 
a  note  secured  by  mortgage,  is  an  instalment  of  the  debt  for  which 
the  mortgage  may  be  foreclosed  in  equity.  It  is  due  and  payable 
as  much  as  if  a  separate  note  had  been  given  for  it.  Failure  to  pay 
interest  is  a  breach  of  the  condition  of  the  mortgage  for  which  it 
may  be  foreclosed,  although  the  mortgage  does  not  expressly  pro- 
vide for  such  fox-eclosure.*  An  action  at  law  may  also  be  main- 
tained for  the  interest  as  it  falls  due.^ 

Although  a  mortgagee  holding  several  notes  maturing  at  differ- 
ent times  may,  by  stipulation  in  the  mortgage  or  by  statute,  fore- 
close as  to  all  when  one  of  them  is  due,  yet  he  may  institute  his  suit 
to  foreclose  that  note  alone,  and  a  judgment  upon  this  and  a  foreclos- 
ure sale  of  a  part  of  the  land  are  no  bar  to  a  subsequent  suit  to  en- 
force payment  of  another  note  afterwards  maturing,  upon  which 
more  land,  or  the  rest  of  it,  may  be  sold.  The  several  notes  are 
considered  as  so  many  successive  mortgages.^     A  mortgage  given 

^  §§  1616-1619.     See  Statutes,  §§  1322-  the  contrary,  is  unsupported  by  authority 

1366;    also,  Allen  v.  Wood,  31   N.  J.  Eq.  or  reason. 

103.  5  Morgenstern  v.  Klees,  30  111.  422. 

2  Mines  r.  Moore,  41  111.273;  Weiner  v.  ^  §§  606,  1577,  1591,  1700;  Grouse  v. 
Heintz,  17  lU.  259;  Hughes  v.  Frisby,  81  Holmau,  19  Ind.  30;  Moffitt  v.  Roche,  76 
111.  188.  Ind.  75;  Studebaker  Manuf.  Co.  v.  McCar- 

3  Morgenstern  !'.  Klecs,  30  III.  422.  gur,   20  Neb.    500,   30   N.    W.  Eep.   686; 
*  Scheibe  v.  Kennedy,  64  Wis.  564,  25    Bres.sler  v.  Martin,  133  111.  278,  24  N.  E. 

N.  W.  Rep.  646;    Walton  v.  Cody,  1  Wis.    Rep.  518. 
420,  431.     Brodribb  v.  Tibbets,  58  Cal.  6,  to 

378 


THE    BILL    OR    COMPLAINT.  [§§  1460,  1461. 

to  secure  several  notes  payable  at  different  times  is  not,  it  would 
seem,  so  far  divisible  that  the  bolder  of  all  the  notes  may,  after 
they  have  all  matured,  have  separate  actions  upon  each  note.  All 
the  notes  should  in  such  case  be  included  in  one  action  ;  and  if  the 
holder  obtains  a  decree  and  sale  upon  one  note,  it  is  probable  that 
he  would  not  be  allowed  to  maintain  a  subsequent  action  upon 
either  of  tlie  other  notes.^  At  any  rate  it  has  been  held  that,  when 
such  holder  has  foreclosed  for  the  note  last  due  only,  a  subsequent 
purchaser,  without  notice  that  the  other  notes  remain  unpaid,  has  a 
right  to  presume  that  they  have  already  been  paid,^  although  in  his 
deed  of  purchase  he  assumed  the  amount  of  the  mortgage  as  part 
of  the  purchase-money .3  When  the  whole  mortgage  debt  becomes 
due  upon  a  default  in  the  payment  of  interest,  and  thereupon  the 
mortgagee  forecloses  for  the  principal  and  a  part  of  the  interest, 
such  foreclosure  exhausts  the  lien.* 

1460.  When  the  bill  is  filed  by  the  holder  of  one  of  several 
mortgage  notes  it  should  state  whether  the  other  notes  have  been 
paid,  and,  if  not  paid,  by  whom  they  are  held  and  the  dates  of  their 
maturing,  so  that  the  rights  of  the  holders  of  the  other  notes  may 
be  determined  and  protected.^  But  if  the  complainant  holds  all 
the  notes  he  is  not  obliged  to  foreclose  for  all  of  them.  He  may 
take  judgment  in  the  foreclosure  suit  for  part  of  them,  and  for 
those  not  included  in  the  decree  of  foreclosure  he  may  recover  in  a 
suit  at  law.^ 

When  the  notes  secured  by  a  mortgage  are  held  by  different 
persons  and  each  brings  a  foreclosure  suit,  the  actions  may  be  con- 
solidated, and  the  holders  of  the  notes  may  have  separate  judg- 
ments.'^ 

1461.  When  one  mortgagor  is  not  liable  for  the  debt,  as,  for 
instance,  when  only  one  of  two  or  more  persons  who  have  joined 
in  the  execution  of  the  mortgage  has  executed  the  note,  or  in- 
curred any  personal  liabiHty  for  the  payment  of  the  debt,  or  when 
a  wife  has  mortgaged  her  land  to  secure  her  husband's  note,  the  bill 
should  properly  pray  for  a  decree  of  sale  against  the  persons  who 

1  Minor  v.  Hill,  58  Ind.  176,  26  Am.  Rep.  ^  Levert  v.  Redwood,  9  Port,  79  ;  Ilart- 
71,  per  Worilen,  J.  well  v.  Blocker,  6  Ala.  581. 

2  Rains  v.  Mann,  68  111.  264.  6  Langdon  v.  V:m\,  20  Vt.  217. 

3  Minor  y.  Hill,  58  Ind.  176,  26  Am.  Rep.  "  §  1458;    Benton   v.  Barnet,   59   N.    II. 
71,  249.      Otherwise  in   California,  unless  the 

*  Hanson  v.  Dunton,  35  Minn.  189,  28  morfKaf,'e  provides  for  the  foreclosure  iijion 
N.  W.  Rep.  221.  non-jjayment  of  the  interest.     Brodrihb  v. 

Tibbets,  58  Cal.  6. 

379 


§  1462.]  FORECLOSURE   BY   EQUITABLE    SUIT. 

executed  the  mortgage,  and  for  a  personal  judgment  only  against 
the  debtor.! 

1462.  The  bill  should  so  describe  the  mortgaged  property 
that  if  a  sale  is  ordered  the  officer  may  know  on  what  land  to  ex- 
ecute the  order  of  court.^  A  bill  which  contains  no  sufficient  de- 
scription of  the  property,  and  refers  to  a  mortgage  annexed  which 
in  turn  contains  no  sufficient  description,  but  itself  refers  therefor 
to  another  instrument,  is  fatally  defective.'^  A  reference  to  the 
record  of  another  deed  in  which  the  property  is  correctly  described 
is  sufficient.*  A  cross-complaint  seeking  foreclosure  of  a  mortgage 
is  sufficient,  though  it  refers  to  the  complaint  for  a  description.^  It  is 
generally  sufficient,  however,  to  describe  the  premises  as  they  appear 
in  the  mortgage  itself.^  And  though  the  description  in  the  mort- 
gage be  erroneous  in  some  particular,  yet,  if  the  rest  of  the  descrip- 
tion is  enough  to  enable  the  land  to  be  located,  the  foreclosure  will 
not  be  invalid  on  account  of  the  description.''  The  uncertainty  of  that 
description  is  no  ground  for  refusing  a  decree  of  sale,  though  it 
may  affect  the  title  to  the  premises  when  sold.^  If  the  description 
be  correct  in  the  bill,  a  decree  entered  by  default  cannot  be  avoided 
by  showing  that  the  mortgage  as  recorded  misdescribed  the  prem- 
ises.^ If  a  bill  to  foreclose  a  mortgage  upon  several  tracts  of  land 
describe  some  of  them  sufficiently,  though  others  be  insufficiently 
described,  there  is  no  ground  for  demurrer  to  the  entire  bill.^'^ 

A  description  in  the  mortgage  may  be  sufficient  to  convey  the 
property  as  against  the  mortgagor,  and  yet  be  insufficient,  unaided 
by  proper  averments  in  the  complaint,  to  authorize  a  decree  of 
foreclosure  and  sale.  Such  averments  cannot  aid  a  description 
which  is  so  indefinite  as  to  render  the  mortgage  void  ;  but  they  will 
cure  a  description  which  is  merely  insufficient,  and,  proper  evidence 

1  Rollins  V.  Forbes,  10  Cal.  299.  ^  Loeb  v.  Tinkler,  124  Ind.  331,  24  N.  E. 

2  Ti-iplett  V.  Sayre,  3  Dana,  590;  Struble    Rep.  235. 

V.  Neighhert,  41  Ind.  344  ;  Magee  v.  San-  ^  Graham  v.  Stewart,  68  Cal.  374. 

derson,  10  Ind.  261  ;  Whittlesey  v.  Beall,  5  ^  Sclioenewald  v.  Rosenstein,    5    N.    Y. 

Blackf.   143 ;    Davis  v.  Cox,   6   Ind.   481  ;  Supp.  766. 

Cecil  V.  Dynes,  2  Ind.  266 ;    Nolte  v.  Lib-  s  Tryon  v.  Sutton,  13  Cal.  490 ;   Whit- 

bert,  34  Ind.  163;  "White  i-.  Hyatt,  40  Ind.  uey   v.   Buckman,   13    Cal.   536;    Howe  v. 

385;    Howe  i'.  Towner,  55  Vt.  315;  Lind-  Towner,  55  Vt.  315. 

sey  V.  Delano,  78  Iowa,  350,  43  N.  W.  Rep.  As  to  what  is  a  sufficient  description,  see 

218.  Hurt  V.  Blount,  63  Ala.  327  ;   Hurt  v.  Free- 

3  Struble    v.    Neighbert,   41    Ind.    344 ;  man,  63  Ala.  335. 

Enieric  u.  Tarns,  6  Cal.  155.  For  a  case  of   incompatible  description, 

*  Sepulveda    ?;.  Baugh    (Cal.)    16    Pac.  see  Schmidt  y.  Mackey,  31  Tex.  659. 

Rep.  223,  overruliug  Crosby  v.  Dowd,  61  ^  pietrich  v.  Lang,  11  Kans.  636. 

Cal.    557;     Bailey     v.     Fanning    Orphan  lo  Rapp  u.  Thie,  61  Ind.  372. 
School  (Ky.),  14  S.  W.  Rep.  908. 
380 


THE  BILL   OR   COMPLAINT.  [§§  1463,  1464. 

being  introduced  to  support  such  averment,  the  decree  may  specify 
the  true  boundaries.^  In  a  bill  to  foreclose  a  mortgage  upon  certain 
real  estate,  with  two  mills,  and  all  "  appurtenances  thereunto  be- 
longing," an  allegation  that  a  certain  milldam  and  water-power  are 
appurtenant  to  said  mills  and  real  estate,  sustained  by  admissions 
by  the  defendant,  will  support  a  judgment  that  the  mortgage  is  a 
lien  upon  said  dam  and  water-power  as  well  as  upon  the  real  estate 
more  particularly  described.^ 

But  a  complaint  upon  a  promissory  note,  and  also  upon  the  mort- 
gage, may  be  sustained  for  the  purpose  of  a  judgment  upon  the  note, 
although  the  description  in  the  mortgage  be  insufficient  to  sustain 
a  judgment  for  foreclosure  and  sale.^ 

1463.  May  omit  part.  —  Although  a  mortgage  cannot  be  the 
subject  of  several  different  foreclosure  suits  with  reference  to  dif- 
ferent tracts  embraced  in  it,  yet  if  part  of  the  land  has  been  sold 
under  a  prior  mortgage,  or  the  mortgagor's  title  to  a  part  of  it  fails 
from  any  cause,  or  he  has  released  a  part  from  the  operation  of  the 
mortgage,  he  may  omit  such  part  from  his  bill.*  In  like  manner 
when  a  part  has  not  been  released,  but  the  mortgagee  enforces  his 
mortgage  upon  one  piece  only,  he  thereby  waives  the  lien  upon  the 
remainder.  The  mortgage  cannot  be  foreclosed  piecemeal.  The 
mortgagor,  however,  if  he  still  owns  the  equity  of  redemption,  can- 
not complain  of  the  omission,  although  there  be  a  deficiency  for 
which  a  personal  judgment  is  rendered  against  him.^ 

The  mortgagee  may  also  foreclose  upon  a  part  or  one  parcel  of 
the  mortgaged  property  if  he  seeks  for  no  judgment  against  the 
mortgagor  for  a  deficiency  ;  but  the  effect  of  his  so  doing  would  be 
to  waive  his  security  upon  the  omitted  part  of  the  property.^ 

1464.  Reforming.  —  Where  by  mistake  a  piece  of  land  not  in- 
tended to  be  mortgaged  is  included  in  the  description,  the  mortgage 
may  be  foreclosed  as  to  the  other  land  witiiout  first  reforming  the 
deed."  But  if  the  premises  are  misdescribed,  so  that  the  instru- 
ment must  be  reformed  before  proceeding,  the  equity  jurisdiction 
of  the  court  is  broad  enough  to  accomplish  this  in   the   same  suit, 

1  Halstead  v.  Lake  County,  56  Inil.  363  ;  Watson  v.  Dundee  M.  &  T.  Co.  12  Oreg. 
Hannon  v.  Milliard,  101  Ind.  310;  Slater  v.    474,  8  Pac.  Hep.  548. 

Breese,  36  Mich.  77;  Shepard  v.  Shepard,  ^  Mascarel  v.  Raffour,  51  Cal.  242;  Bar- 

36  Mich.  173.  ley  v.  Roosa,  13  N.  Y.  Supp.  209. 

2  Lanoue  v.  McKinnon,  19  Kans.  408.  *>  Bull  v.  Coe,  77  Cal.  54,  18  Pac.  Rep. 
8  Bayless   v.    Glenn,  72    Ind.  5 ;    Nix  v.  808. 

Williams,   110    Ind.    234,    11    N.  E.   Rep.        ^  Conklin  y.  Bowman,  11  Ind.  254.    And 

36.  see  Andrews  v.  Gillespie,  47   N.   Y.   487; 

*  Sedam    v.    Williams,    4    McLean,    51  ;    Gillespie  v.  Moon,  2  Johns.  Ch.  585,  7  Am. 

Dec  559. 

381 


§  1464.]  FORECLOSURE   BY   EQUITABLE   SUIT. 

which  may  afterwards  proceed  to  foreclosure.^  A  bill  asking  for 
reformation  and  foreclosure  may  be  amended  so  as  to  ask  for  re- 
formation, and  the  removal  of  a  cloud  on  complainant's  title  as 
mortgagee.^  The  mortgage  may  be  reformed  not  only  in  the  mat- 
ter of  the  description,  but  in  any  other  way,  such  as  supplying  the 
omission  of  words  of  inheritance,  so  that  the  estate  shall  be  one  in 
fee  instead  of  a  life  estate  ;^  or  such  as  a  mistake  in  the  condition, 
the  mortgage  containing  a  provision  making  it  subject  to  foreclosure 
on  a  failure  to  pay  interest  annually,  when  the  parties  had  agreed 
that  the  mortgage  should  not  be  foreclosed  for  any  default  in  inter- 
est.* In  New  Jersey,  however,  it  is  held  that  a  mortgage  cannot 
be  reformed  or  corrected  in  a  foreclosure  suit,  but  that  the  only 
remedy  is  by  a  cross-bill  for  that  purpose.^  A  mistake  in  the  de- 
scription first  made  in  the  mortgage,  and  afterwards  carried  all 
through  the  proceedings  and  into  the  sheriff's  deed,  may  afterwards, 
by  a  proceeding  in  equity,  be  reformed  in  all  the  instruments  so  as 
to  make  them  conform  to  the  intention  of  the  parties.^  A  mistake 
in  the  mortgage  carried  into  the  decree  of  foreclosure  may  be  cor- 
rected by  reforming  the  mortgage  and  foreclosing  anew.'^  When 
reformed,  the  lien  attaches  to  the  property  intended  to  be  covered 
by  it  from  the  date  of  the  execution  of  the  mortgage,  and  not 
merely  from  the  date  of  the  reformation.^  If  the  description  in  the 
mortgage  deed  contains  a  latent  ambiguity  as  to  the  boundaries,  the 
court  may  in  the  foreclosure  suit  determine  them.^ 

A  mistake  in  a  mortgage  may  be  corrected,  and  the  mortgage 
reformed  and  foreclosed  anew,  after  a  foreclosure  decree,  and  even 
after  a  sale   under  the  decree.^^     But  where    the    mistake  consists 

1  §§  97-99  ;  Bright  v.  Buckman,  39  Fed.  °  Graham  v.  Berryman,  19  N.  J.  Eq.  29  ; 
Rep.  243  ;  Davis  v.  Cox,  6  Ind.  481  ;  Hal-    Trench  v.  Griffin,  18  N.  J.  Eq.  279. 

stead  r.  Lake  County,  56  Ind.  363  ;    Bar-  6  Quivey  v.  Baker,  37  Cal.  465;  Zingsem 

naby   v.   Parker,   53   Ind.   271  ;    Axtel  v.  v.  Kidd,  29  N.  J.  Eq.  516. 

Chase,  83  Ind.  546;  Alexander  v.  Rea,  50  ^  McCasland  r.  iEtnaL.  Ins.  Co.  108lnd. 

Ala.  450  ;  McCrary  v.  Austell,  46  Ga.  450  ;  130,  9  N.  E.  Rep.  119  ;  Conyers  v.  Mericles, 

McKay  v.  Wakefield,  63  Ind.  27  ;    Citizens'  75  Ind.  443  ;  McGehee  v.  Lehman,  65  Ala. 

Nat.  Bank  v.  Dayton,  116  111.  257 ;  Noland  316  ;  Burkam  v.  Burk,  96  Ind.  270  ;  Jones 

V.  State,  115  Ind.   529,  18  N.  E.  Rep.  26;  v.  Sweet,  77  Ind.   187;  Sanders  v.  Farrell, 

Palmer  v.  Windrom,  12  Neb.  494.  83  Ind.  28. 

2  Hawkins  v.  Pearson  (Ala.),  11  So.  Rep.  »  Adams  v.  Stutzman  (Ohio,  1878),  7  Am. 
304.  L.  Record,  76. 

3  Durant  v.  Crowell,  97  N.  C.  367,  2  S.  E.  »  Doe  v.  Vallejo,  29  Cal.  385. 

Rep.  541.  ^'''  Conyers  v.  Mericles,  75  Ind.  443  ;  Arm- 

i  Gassert  v.  Black,  11  Mont.  185,  27  Pac.  strong  v.  Short,  95  Ind.  326  ;  McCasland  v. 
Rep.  791.  And  see  Barton  v.  Sackett,  3  iEtna  L.  Ins.  Co.  108  Ind.  130,  9  N.  E.  Rep. 
How.  Pr.  358;  Wemple  v.  Stewart,  22  119;  Curtis  v.  Gooding,  99  Ind.  45  ;  Jones 
Barb.  154.  v.  Sweet,  77  Ind.  187;  Ray  v.  Ferrell,  127 

Ind.  570,  27  N.  E.  Rep.  159.     In  this  case 

382 


THE   BILL   OR   COMPLAINT.  [§  1465. 

in  describing  other  land  than  that  which  the  owner  intended  to 
mortgage,  though  the  land  described  belonged  to  him  and  the 
mortgage  is  foreclosed  and  the  land  sold  for  a  sum  sufficient  to  pay 
the  debt,  the  mortgage  will  not  be  reformed  for  the  purpose  of  a 
new  foreclosure,  in  order  to  include  the  land  originall}'  intended, 
since,  the  debt  being  satisfied,  there  is  no  ground  for  such  relief.^ 

A  mortgagee  who  has  purchased  the  property  at  the  foreclosure 
sale  cannot  ask  for  a  reformation  of  the  mortgage  after  he  has  as- 
signed his  certificate  of  purchase,  for  such  assignment  passes  all  his 
title  to  the  mortgaged  land  and  to  the  debt  secured.^ 

Where  a  bill  to  foreclose  a  mortgage  alleges  a  mistake  in  the 
transposition  of  the  names  of  the  parties  in  the  commencement, 
but  does  not  ask  specifically  for  its  reformation,  and  the  decree 
finds  the  fact  of  the  mistake,  but  does  not  in  express  terms  order 
its  correction,  but  orders  a  sale,  the  mortgage  is  thus  treated  as 
already  corrected ;  and  this  correction  may  be  done  under  the 
general  prayer.-^  A  clerical  error  in  a  name  does  not  require  refor- 
mation.* 

1465.  Record.  —  In  a  bill  against  the  mortgagor  it  is  not  neces- 
sary to  aver  that  the  mortgage  is  recorded,  for  he  is  liable  with- 
out any  record  ;  ^  or  to  aver  that  he  has  not  conveyed  away  the 
land,  for  he  is  a  proper  party  in  that  case.^  But  if  it  be  against 
a  purchaser  from  the  mortgagor,  according  to  the  practice  in  some 
States,  the  bill  should  allege  either  that  the  mortgage  was  duly 
recorded,  or  that  the  purchaser  bought  with  notice  of  it,"  or  as- 
sumed the  payment  of  it:^  but  in  others  it  is  held  that  this  is 
unnecessary;  that  it  is  purely  a  matter  of  defence;  that  the  de- 

last  cited,  McBride,  J.   said:    "These    au-  ^  Whipperman  y.  Dunn,  124  Ind.  349,  24 

thorities,  and  many  others  that  mii^ht   be  N.  E.  Rep.  166. 

cited,  settle  the  proposition  that  when,  bj  ^  Beaver  i\  Slanker,  94  111.  175,  177. 

reason  of  the  mutual   mistake  of  the  par-  *  Germantown  Ins.  Co.  v.  Dhein,  57  Wis. 

ties,  the  description  of  the  mortgaged  prem-  521, 15  N.  W.  Rep.  840. 

ises  is  so  defective  that  no  title  would  pass  ^  Snyder  v.  Bunnell,  64  Ind.  40.3  ;  Hoes 

under  sale,  or  when,  by  such  mutual  mis-  ^-  Boyer,  108  Ind.  494;  Mann  v.  State,  116 

take,  land  is  described  which  does  not  be-  Ind.  38.3,  19  N.  E.  Rep.  181;  Downing  v. 

long  to  the  mortgagor,  instead  of  land  which  Le  Du,  82  Cal.  471,  23  Pac.  Rep.  202. 

does,  there  may  be  a  reformation  even  after  ^  Faulkner  v.  Overturf,  49  Ind.  265  ;  Per- 

sale.     In  such  a  case  there  is  no  merger  of  due  v.  Aldridge,  19  Ind.  290. 

the  mortgage,  and  it   certainly  cannot  be  "  Lyon    v.    Perry,    14    Ind.   515;    Peru 

said  there  is  any  satisfaction  of   the  debt.  Bridge  Co.  y.  Hendricks,  18  Ind.  11;  Ma- 

for  the  purchaser  acquires  nothing  by  the  gee  v.    Sanderson,   10  Ind.    261 ;  Culph    v. 

sale.     Indeed  the  sale  is  a  mere  nullity."  Phillips,  17  Ind.  209  ;  Faulkner  i'.  Overturf, 

1  Ray  V.  Ferrell,  127  Ind.  570,  27  N.  E.  49  Ind.  265;  Stevens  i'.  Campbell,  21   Ind. 

Rep.  159.  471  ;  Hiatt  v.  Kcnk,  64  Ind.  590. 

*  Scarry  v.  Eldridge,  63  Ind.  44. 

883 


§   1466.]  FORECLOSURE   BY    EQUITABLE   SUIT. 

fendant  purchased  in  good  faith  without  notice,  and  he  must  set 
this  up  for  himself.^ 

An  averment  that  the  mortgage  was  recorded  within  ninety  days 
after  its  execution,  without  any  further  averment  that  it  was  prop- 
erly, duly,  or  legally  recorded,  or  statement  where  it  was  recorded, 
is  insufficient ;  and  the  memorandum  or  certificate  of  the  recorder 
on  the  copy  of  the  mortgage  filed  with  the  complaint  and  therein 
referred  to,  being  no  part  of  the  complaint,  does  not  cure  the  de- 
fect.^ But  a  failure  to  allege  the  recording  of  the  mortgage,  or  a 
notice  to  the  purchaser  of  its  existence,  is  cured  by  proof  made  of 
the  one  fact  or  the  other  without  objection.^ 

1466.  The  debt  secured  by  the  mortgage  must  be  set  out 
and  described.  An  indebtedness  must  be  alleged  as  the  founda- 
tion of  the  mortgage.*  If  the  note  or  bond  secured  by  the  mort- 
gage be  set  forth,  it  is  not  necessary  to  allege,  or  if  alleged  to 
prove,  the  consideration  or  debt  for  which  this  was  given.^  Al- 
though the  note  does  not  correspond  with  that  described  in  the 
mortgage,  as  where  this  refers  to  a  note  payable  in  one  year, 
whereas  the  note  was  payable  in  sixty  days,  under  an  agreement 
for  renewals  for  a  year,  if  the  complaint  fully  explains  this  mis- 
description, and  that  the  mortgage  was  really  designed  to  secure 
this  note,  it  states  a  good  cause  of  action.^  A  complaint  which 
set  out  an  indebtedness  of  the  mortgagors  upon  certain  notes  in- 
dorsed by  them  and  discounted  by  the  plaintiffs,  and  alleged  that 
the  mortgage  was  given  to  secure  the  payment  of  a  bond  for  the 
amount  of  the  indebtedness,  the  payment  of  which  was  thereby 
considerably  extended,  and  that  the  mortgagors  had  failed  to  com- 
ply with  the  conditions  of  the  bond,  was  held  to  allege  a  sufficient 
cause  of  action. '^ 

If  the  condition  of  a  mortgage  be  that  a  third  person  shall  ac- 
count to  the  mortgagee  for  all  goods  sold  by  such  third  person  as 
the  mortgagee's  agent,  a  bill  to  foreclose  the  mortgage  alleging  that 
the  agent  had  sold  goods  and  had  not  accounted  for  the  proceeds, 
and  was  indebted  to  the  mortgagee  in  a  certain  amount  which  the 
mortgagor  had  not  paid,  is  good,  without  first  establishing  by  suit 
at  law  the  amount  of  the  agent's  indebtedness.^ 

1  Stacy  V.  Barker,  1  Sm.  &  M.  Ch.  112;  Brown  v.  Kahnweiler,  28  N.  J.  Eq.  311  ; 
Gallatian  v.  Cunningham,  8  Cow.  361,  374.  Farnum  v.  Burnett,  21  N.  J.  Eq.  87. 

2  Faulkner  r.  Overturf,  49  Ind.  265.  ^  Merchants'  Nat.  Bank  v.  Raymond,  27 

3  Lyonf.  Perry,  14  Ind.  515.  Wis.  567. 

*  Nye  V.  Gribble,  70  Tex.  458,  8  S.  W.  ^  Troy  City  Bank  v.  Bowman,  43  Barb. 
Rep.  608 ;  Bank  v.  Navarro,  22  Fla.  474.  639,  19  Abb.  Pr.  18 ;  Matteson  v.  Matteson, 

5  Day    V.    Perkins,  2    Sandf.    Ch.  359  ;    55  Wis.  450,  13  N.  W.  Rep.  463. 

8  Haskell  v.  Burdette,  32  N.  J.  Eq.  422. 
384 


THE   BILL   OR   COMPLAINT.  [§§  1467,  1468. 

If  the  indebtedness  is  one  resting  upon  mutual  accounts,  or  is 
an  indebtedness  which  it  is  understood  the  mortgagor  is  to  pay 
by  his  labor,  the  account  of  which  is  kept  by  the  'mortgagee's 
agent,  the  complainant  should  make  out  a  clear  case  of  indebted- 
ness, and  should  in  evidence  of  this  make  a  full  statement  of  the 
accounts,  especially  if  considerable  time  is  allowed  to  pass  without 
attempting  to  enforce  payment. ^ 

1467.  Reference  to  determine  amount  of  debt.  —  It  is  the 
practice  generally  for  the  courts,  in  case  the  bill  is  taken  as  con- 
fessed, or  the  right  of  the  plaintiff  is  admitted  by  the  answer,  to 
order  a  reference  as  a  matter  of  course  to  determine  the  amount 
due  upon  the  mortgage  debt.^  According  to  the  practice  of  some 
courts,  such  a  reference  may  be  had  whether  the  defendant  has 
answered  or  not.^  The  reference  generally  embraces  other  mat- 
ters also,  as  whether  the  premises  can  be  sold  in  parcels,  or 
whether  there  are  equities  requiring  the  sale  to  be  made  in  a  par- 
ticular order  ;  but  the  referee  is  always  limited  in  his  examina- 
tion to  the  subjects  specified  in  the  order.*  He  should  report  the 
facts,  and  not  merely  his  conclusions.^  Upon  the  coming  in  of  the 
report,  exceptions  may  be  taken  to  it,  otherwise  it  is  confirmed.'^ 
A  final  order  of  sale  before  the  filing  of  the  report  is  erroneous  ;'^ 
as  it  is  also  when  made  after  the  filing  of  it,  and  before  it  is  con- 
firmed or  set  down  for  hearing.^  The  decree  is  founded  upon  the 
report.^ 

1468.  A  renewal  of  the  [note  should  be  alleged.  The  bill 
should  contain  all  the  allegations  necessary  to  cover  the  facts  in- 
tended to  be  introduced  in  evidence,  otherwise  the  evidence  will 
be  inadmissible.  Therefore,  where  a  bill  to  foreclose  a  mortgage 
given  to  indemnify  an  indorser  of  a  note  alleged  the  indorsement 
of  a  note  of  a  certain  date  and  amount  for  the  mortgagor,  under 
the  mortgage,  but  did  not  allege  that  the  note  was  a  renewal  of  a 
former  one,  it  was  held  that,  although  the  mortgage  secured  the  lia- 

1  Webber  v.  Ryan,  54  Mich.  70, 19  N.  W.  ory  v.  Campbell,  16  How.  Pr.  417  ;  Kelly  v. 

Rep,  7.51  ;    Lashbrooks    v.    Hatheway,   52  Searing,  4  Abb.  Pr.  354. 

Mich.  124,  17  N.  W.  Rep.  723.  *  McCrackau  v.  Valentine,  9  N.  Y.  42. 

'^  Corning  v.  Baxter,  6  Paige,  178;  Cham-  5  Anon.  Clarke,  423  :  Security  Fire  Ins. 

berlain  v.  Dempsey,  36  N.  Y.  144 ;  Anon.  3  Co.  v.  Martin,  15  Abb.  Pr.  479. 

How.  Pr.  158.  <=  Swarthout   v.    Curtis,  4   N.   Y.  415,   5 

3  Bassett  v.  McDonel,  13  Wis.  444;  Be-  How.  Pr.  198. 

villc  V.   Mcintosh,  41    Miss.  516;    Guy   v.  '  Graham  r.  King,  15  Ala.  563. 

P'ranklin,  5  Cal.  416;  Blacklcdge  v.  Nelson,  «  Dean  v.  Coddington,  2  Johns.  Ch.  201. 

1  Dev.  Eq.422.  ^  Pogue  v.  Clark,  25  111.  351;    Sims  v. 

As   to   duties  of   referee  generally,  see  Cross,  10  Yerg.  460. 
Wolcott  V.  Weaver,  3  How.  Pr.  159  ;  Greg- 

VOL.  II.              25  385 


§§  1469,  1469  a.]   FORECLOSURE  BY  EQUITABLE  SUIT. 

bility  on  the  renewed  note  in  the  same  manner  as  it  secured  the 
liability  on  the  original  one,  yet,  without  amending  the  bill,  evidence 
to  prove  the  note  described  in  the  bill  to  have  been  given  in  renewal 
of  a  former  one  was  inadmissible. ^ 

1469.  Proof  of  note.  —  It  is  no  objection  to  the  introducing  of 
a  note  in  evidence  that  it  was  not  fully  or  perfectly  described  in 
the  mortgage,  the  words  "  or  order  "  in  the  note  being  omitted  in 
the  description.^  Although  the  mortgage  note  be  imperfectly  de- 
scribed in  the  complaint,  if  it  be  filed  with  the  complaint,  and 
alleged  to  be  the  same  note  mentioned  in  the  mortgage,  and  on  the 
trial  it  be  proved  to  be  such,  the  defective  description  is  cured. ^ 
The  fact  that  the  note  offered  in  evidence  coriesponds  in  date, 
names,  and  amount  with  that  recited  in  the  mortgage  deed,  is 
prima  facie  evidence  that  it  is  the  note  secured.*  Where  one  seeks 
as  assignee  to  foreclose  a  mortgage  securing  a  non-negotiable  note, 
he  should  give  evidence  of  title  beyond  that  derived  from  the  mere 
possession  of  the  note.^ 

1469  a.  The  note  or  bond  must  be  produced,  or  a  good  reason 
given  for  its  non-production.^  Failure  to  produce  the  note  or  bond 
where  one  was  given  is  evidence  of  the  non-existence  or  discharge 
of  the  mortgage  debt,  and  when  unexplained  is  conclusive  against 
the  mortgagee's  right  to  recover.'^  If  the  mortgage  does  not  recite 
any  note  or  bond,  and  the  mortgagor  testifies  he  has  it  in  his  pos- 
session, but  fails  to  produce  it,  the  inference  that  no  bond  or  note 
was  given  is  justified.^  The  plaintiff  need  not  give  evidence  of 
a  fact  alleged  in  his  pleading,  and  not  denied  in  the  answer ; 
and  therefore,  if  the  answer  does  not  deny  the  execution  of  the 
bond  and  mortgage,  but  simply  pleads  payment,  plaintiff  is  not 
obliged  to  produce  the  bond  in  order  to  entitle  him  to  recover.^ 
The  possession  of  the  mortgage  alone  furnishes  no  conclusive  evi- 

1  Boswellu.  Goodwin,  31  Conn.  74,  81,  81  Harris,  20  IlL  165;  Moore  v.  Titman,  35 
Am.  Dec.  169.  See  Schumpert  v.  Dillard,  111.310;  Burgwin  t".  Richardson,  3  Hawks 
55  Miss.  348.  203  ;  Dowden  v.  Wilson,  71  111.  485;  Hun- 

2  Hough  y.  Bailey,  32  Conn.  288;  Boyd  gcrford  v.  Smith,  34  Mich.  300;  Schum- 
?;.  Parker,  43  Md.  182.  pert  v.  Dillard,  55  Miss.  348;    George  v. 

3  Dorsch  V.  Rosenthal!,  39  Ind.  209;  Cleav-  Ludlow,  66  Mich.  176,  33  N.  W.  Rep.  169  ; 
enger  v.  Beath,  53  Ind.  172.  And  see  Had-  Noriis  v.  Kellogg,  7  Ark.  112  ;  Field  v.  An- 
ley  r.  Chapin,  11  Paige,  245.  derson,  55  Ark.  .546,  18  S.  W.  Rep.  1038. 

*  Steinbeck  v.  Stone,  53  Tex.  382;  Cow-  ^  Bergen  v.  Urbahn,  83  N.  Y.  49  ;  Mer- 

ley  V.  Shelby,   71  Ala.  122  ;  Mixer  v.  Ben-  ritt  v.  Bartholick,  36  N.  Y.  44. 

nett,  70  Iowa,  329  ;  Bailey  v.  Fanning  Or-  «  Parkhurst  v.   Berdell,  5  N.  Y.  Supp. 

phan  School  (Ky.),  14  S.  W.  Rep.  908.  328,  24  N.  Y.  St.  430. 

6  Lashbrooks  v.  Hatheway,  52  Mich.  124,  9  Anderson  v.  Culver,  127  N.  Y.  377,  28 

17  N.  W.  Rep.  723.  N.  E.  Rep.  32,  affirming  6  N.  Y.  Supp.  181. 

^  Beers  v.  Hawley,  3  Conn.  110;  Lucas  v. 

386 


THE    BILL    OR    COMPLAINT.  [§  1470. 

dence  of  the  ownership  of  the  bond  or  note  which  represents  the 
debt  secured,  as  this  may  have  been  transferred  to  another,  who 
would  be  entitled  to  the  mortgage  security.  But  although  the 
mortgage  may  recite  the  existence  of  a  bond  or  note,  it  may  be 
shown  that  no  bond  or  note  was  ever  given  ;  and  if  the  mortgage 
itself  expressly  admits  the  indebtedness  and  contains  a  covenant  to 
pay  it,  the  non-production  of  the  bond  or  note  is  then  sufficiently 
accounted  for,  and  furnishes  no  ground  for  denying  a  decree  of  fore- 
closure,^  especially  if  no  exception  is  taken  to  the  absence  of  the 
bond.^  Although  the  note  representing  the  debt  be  declared  void, 
because  of  a  material  alteration  of  it  by  the  holder,  the  mortgage 
may  nevertheless  be  enforced  if  the  terms  and  amount  of  the  debt 
sufficiently  appear  in  that  instrument.^  The  fact  that  the  note  is  in 
the  possession  of  the  defendant  is  a  good  reason  why  the  plaintiff 
should  not  produce  it  in  evidence.  If  in  such  case  it  contains,  by 
way  of  indorsement  or  otherwise,  anything  to  the  advantage  of 
the  defendant,  he  may  avail  himself  of  it  by  offering  the  note  in 
evidence.*  If  no  personal  judgment  is  sought,  the  recitals  in  the 
mortgage,  without  producing  the  note,  are  sufficient  to  authorize 
a  foreclosure  of  the  mortgage  simply,  according  to  some  author- 
ities,^ though  by  others  recitals  without  the  note  are  not  sufficient 
unless  the  absence  of  the  note  is  accounted  for.^  In  a  suit  against  a 
subsequent  purchaser,  after  the  death  of  the  mortgagor,  and  nearly 
twenty  years  after  the  maturity  of  the  mortgage,  a  very  satisfac- 
tory showing  of  a  continuing  obligation  is  required,  in  the  absence 
of  the  securities  themselves." 

Secondary  evidence  of  the  contents  of  the  note  and  mortgage  is 
inadmissible  until  proof  is  made  of  the  loss  or  destruction  of  the 
originals.^ 

1470.  It  is  not  generally  necessary  to  prove  payment  of  the 
consideration  money,  unless  this  is  put  in  issue  by  the  pleadings, 
as  the  deed  itself  is  sufficient  evidence  of  it.^ 

A  mortgage  made  without  consideration,  and  under  a  promise 
never  performed,  is  void  for  all  purposes  as  against  the  mortgagor, 

1  Munozr.  Wilson,  111  N.  Y.  295,  19  St.  5  Arnold  v.  Stanfiekl,  8  Ind.  323;  Hawes 
Rep.  272,  18  N.    E.  Rep.  855,  affirming  42     v.  Rhoads,  34  Ind.  79. 

Hun,   656;  Goodluie   i'.  Berrien,  2  Sandf.  ^  See  cases  cited  above,  and  Bennett  v. 

Ch.  630.  Taj'lor,  5  Cal.  502.     Tlie  reason  is  that  the 

2  Moffitt   V.  Maness,  102  N.  C.  457,  9  S.  mortgage  is  a  mere  incident  to  the  debt. 
E.  Rep.  399.  ^  Iluugerford  v.  Smith,  34  Mich.  300. 

3  Smith  V.  Smith,  27  S.  C.  166,  3  S.  E.  »  Dowden  v.  Wilson,  71  111.  485. 

Rep.  78;  Plyler  v.  Elliott,  19  S.  C.  257.  ^  §§  610,  613;  Minot  v.  Eaton,  4   L.  J. 

*  Hawes  v.  Rhoads,  34  Ind.  79.  Ch.  134. 

387 


§§  1471,  1472.]        FORECLOSURE   BY   EQUITABLE   SUIT. 

whether  in  the  hands  of  the  mortgagee  or  of  a  third  person  who  has 
taken  it  as  security  without  notice  of  the  want  of  consideration.^ 
The  assignee  could  only  take  what  the  mortgagee  could  give  him, 
and  that  was  nothing  at  all.  He  can  stand  in  no  better  situation 
than  the  mortgagee  himself ;  and  his  only  remedy  is  against  the 
mortgagee. 

1471.  The  bill  must  show  that  a  right  of  action  has  accrued. 
The  right  of  action  to  foreclose  a  mortgage,  in  general,  accrues  upon 
any  breach  of  the  condition.  If  there  are  several  breaches,  it  is 
necessary  to  allege  and  prove  only  one ;  and  if  several  are  alleged, 
it  is  only  necessary  to  prove  one  to  be  entitled  to  a  decree.^  If  the 
mortgagee's  right  to  the  money  secured  by  the  mortgage  is  expressly 
made  dependent  upon  his  complying  with  a  certain  requirement,  as, 
for  instance,  the  perfecting  of  the  title  in  some  particular,  the  bill 
to  foreclose  the  mortgage  must  distinctly  allege  the  performance  of 
such  condition  precedent.^  If  tbe  mortgage  debt  is  payable  upon 
demand,  the  mortgagee  may  proceed  at  any  time  to  foreclose,  and 
need  not  make  or  allege  a  previous  demand  ;  *  and  although  the  in- 
terest has  been  regularly  paid,^  if  no  time  of  payment  be  limited  in 
a  mortgage,  it  is  payable  within  a  reasonable  time,^  and  generally 
would  be  regarded  as  due  upon  demand.  If  the  mortgage  secures 
a  debt  already  due,  and  it  specifies  no  time  of  payment,  it  may  be 
foreclosed  at  any  time.'^ 

It  is  no  valid  defence  to  the  foreclosure  of  a  mortgage  containing 
a  clause  making  the  principal  sum  due  in  case  of  default  in  paying 
the  interest  for  a  certain  time  after  it  is  due,  that  the  defendant  was 
unable  to  find  the  holder  of  the  mortgage  until  after  the  time  for 
paying  the  interest  had  passed,  unless  the  answer  alleges  fraud  on 
the  part  of  the  plaintiff  to  prevent  the  payment  of  interest.^  The 
court  will  not  stay  the  suit  when  such  default  of  the  whole  debt 
occurs  through  the  mere  negligence  of  the  mortgagor.^ 

1472.  A  bill  to  foreclose  a  mortgage  given  to  indemnify  a 
surety  must  allege  a  payment  by  the  surety  on  account  of  the  lia- 

1  Parker  v.  Clarke,  30  Beav.  54.  The  ^  Austin  v.  Burbank,  2  Day  474, 2  Am. 
mortgage  in  this  case  was  given  by  a  person    Dec.  119. 

in  prison,  under    promises  to   release  him  ^  Triebert  v.  Burgess,  11  Md.  452. 

■which  were  never  realized.  ^  Wright  v.  Shumway,  1  Biss.  23. 

2  Beckwith  v.  Windsor  Manuf.  Co.  14  ^  Dwight  v.  Webster,  32  Barb.  47,  10 
Conn.  594,  602;  Canandarqua  Academy  v  Abb.  Pr.  128,  19  How.  Pr.  349.  And  see 
McKechnie,  90  N.  Y.  618.  Rosseel  v.  Jarvis,  15  Wis.  571. 

3  Curtis  V.  Goodenow,  24  Mich.  18.  ^  Noyes  v.  Clark,  7  Paige,  179,  32  Am. 
*  See  chapter  xxv. ;  Gillett  v.  Balcora,  6    Dec    620. 

Barb.  370 ;  Bolraan  v.  Lohman,  79  Ala.  63. 
388 


THE    BILL   OR   COMPLAINT. 


[§  1473. 


bility,!  and  tlie  precise  amount  paid  ;2  though,  if  the  aggregate  sum 
paid  be  stated,  it  is  not  necessary  that  the  several  sums  constitut- 
ing this  should  be  set  out  in  detail.^  The  contract  of  indemnity 
is,  however,  sometimes  broken  when  there  is  a  failure  to  do  a  specific 
act,  or  when  a  liability  is  incurred.*  Where  the  indemnifying  mort- 
gage contains  an  express  agreement  of  the  mortgagor  to  pay  the  debt 
described,  upon  his  failure  to  do  so  when  his  liability  is  ascertained 
and  the  debt  is  due,  the  mortgagee  may  at  once,  without  having 
paid  the  debt,  maintain  an  action  for  the  foreclosure  of  the  mort- 
gage, and  recover  as  damages  the  total  probable  loss.^ 

1473,  An  allegation  in  the  bill  that  a  person  made  a  defend- 
ant has,  or  claims  to  have,  a  lien  on  the  premises,  which,  if  it 
exists,  is  subsequent  to  the  plaintiff's  mortgage,  sufficiently  shows 
that  he  is  a  proper  party  ;  and  such  allegation  is  not  bad  on  de- 
murrer as  stating  no  cause  of  action  against  him.^  It  is  not  neces- 
sary to  describe  the  interest  which  each  defendant  has  or  claims  to 
have  in  the  mortgaged  property."  What  his  interest  in  the  property 
may  be  is  only  important  in  determining  the  rights  to  the  surplus.^ 
Though  this  general  allegation  of  interest  is  held  sufficient,  it  is  also 
the  practice  to  allege  the  nature  of  the  interest  of  each  subsequent 
incumbrancer,  as  that  he  claims  to  have  an  incumbrance  by  mort- 
gage, the  date  and  record  of  which  are  given,  or  by  judgment  en- 
tered at  such  a  date.^ 


1  Shepard  i'.  Shepard,  6  Conn.  37  ;  La- 
throp  V.  Atwood,  21  Conn.  117  ;  Collier  v. 
Ei-vin,  2  Mont.  335  ;  Forbes  v.  McCoy,  15 
Neb.  632,  20  N.  W.  Rep.  17  ;  Gregory  v. 
Hartley,  6  Neb.  356;  Stout  v.  Folger,  34 
Iowa,  71,  74,  11  Am.  Rep.  138.  In  South 
Carolina  it  is  well  settled  that,  after  the 
principal  debtor  has  made  default  of  pay- 
ment, the  surety  may  enforce  payment  of  a 
mortgage  given  to  secure  him,  and  have  the 
money  applied  to  the  debt.  Hellams  v.  Ab- 
ercrombie,  15  S.  C.  110;  Bellune  v.  Wal- 
lace, 2  Rich.  L.  80 ;  Norton  v.  Reid,  1 1  S. 
C.  593;  McDaniel  v.  Austin,  32  S.  C.  601, 
11  S.  E.  Rep.  350.     See  §§  379-387. 

2  Seely  v.  Hills,  44  Wis.  484,  7  Reporter, 
312. 

3  Dye  V.  Mann,  10  Mich.  291.  Sec,  how- 
ever, Shepard  v.  Shepard,  6  Conn.  37. 

4  Gilbert  v.  Wiman,  1  N.  Y.  5.50,  49  Am. 
Dec.  359  ;  Rrower  v.  Buxton,  101  N.  C.  419, 
8S.  E.  Rep.  116. 

^  Malott  i;.  Goff,  96  Ind.  496  ;  Loehr  v. 
Coiborn,  92  Ind.  24;  Durham  v.  Craig,  79 


Ind.  117;  Bodkin  v.  Merit,  86  Ind.  560; 
Reynolds  v.  Shirk,  98  Ind.  480 ;  Catterlin  v. 
Armstrong,  101  Ind.  258;  Wilson  v.  Stil- 
well,  9  Ohio  St.  467,  75  Am.  Dec.  477. 

6  Bowen  v.  Wood,  35  Ind.  268  ;  Aldrich 
V.  Lapham,  6  How.  Pr.  129;  Constant  v. 
Am.  Baptist,  &c.  Soc.  21  Jones  &  S.  170; 
Carpenter  i-.  Ingalls  (S.  D.)  51  N.  W.  Rep. 
948  ;  Hoes  v.  Boyer,  108  Ind.  494,  9  N.  E. 
Rep.  427  ;  Anthony  v.  Nye,  30  Cal.  401  ; 
Dexter  v.  Long,  2  Wash.  St.  435,  27  Pac. 
Rep.  271 ;  Drury  v.  Clark,  16  How.  Pr. 
424  ;  Short  v.  Nooncr,  16  Kans.  220. 

"<  Hoes  V.  Boyer,  108  Ind.  494,  9  N.  E. 
Rep.  427 ;  Daniel  v.  Hester,  24  S.  C.  301  ; 
McCoy  V.  Boley,  21  Fla.  803  ;  Sichlcr  v. 
Look,  93  Cal.  600,  29  Pac.  Rep.  220  ;  Poett 
V.  Stearns,  28  Cal.  226  ;  Anthony  v.  Nye, 
30  Cal.  401.  Such  an  averment  is  not  an 
issuable  fact.     Elder  v.  Spinks,  53  Cal.  293. 

8  Drury  v.  Clark,  16  How.  Pr.  424.  See 
Frost  r.  koon,  30  N.  Y.  428,  448. 

9  1  Crary  N.  Y.  Prac.  289;  Clay  v.  Ilil- 
debrand,  .34  Kans.  694. 

389 


§§  1474,  1475.]      FORECLOSURE   BY   EQUITABLE   SUIT. 

If,  in  an  action  by  a  junior  mortgagee  against  several  defendants, 
the  complaint  contains  such  general  allegation  of  interest,  and  one 
of  the  defendants  is  a  senior  mortgagee  who  also  holds  a  judgment 
lien  junior  to  the  plaintiff's  mortgage,  and  the  complaint  further 
alleges  "  tliat  if  any  such  interest,  lien,  or  claim  exists,  ...  it  is 
junior  and  subordinate  to  the  lien  of  said  mortgage,"  and  the  senior 
mortgagee  fails  to  plead  his  prior  mortgage,  and  it  is  adjudged  that 
the  mortgage  sued  on  is  senior  to  any  lien  held  by  any  of  defendants, 
such  judgment  estops  the  senior  mortgagee  subsequently  to  assert 
his  right  under  his  mortgage.^ 

Where  one  made  a  defendant  in  a  foreclosure  suit,  as  claiming 
some  interest  in  the  land  which  accrued  subsequently  to  the  lien  of 
the  mortgage,  answers  and  proceeds  to  trial,  he  cannot,  after  tlie 
plaintiff  has  made  out  a  prima  facie  case  for  foreclosure  and  rested, 
for  the  first  time  raise  the  objection  that  defendant's  title  was  para- 
mount to  plaintiff's  mortgage,  and  demand  that  the  complaint  be 
dismissed.  It  is  too  late  at  such  stage  of  the  proceedings  for  the 
defendant  to  claim  that  he  had  been  impropei'ly  made  a  party  de- 
fendant.^ 

If  any  one  of  the  defendants  is  an  infant,  this  fact  should  appear, 
with  a  statement  of  his  interest  in  the  premises,  so  that  a  guardian 
may  be  appointed. 

1474.  The  bill  must  show  that  defendant's  interest  is  subject 
to  the  mortgage.  Unless  the  bill  discloses  that  the  interest  of  a 
person  named  as  a  defendant  is  an  interest  junior  or  inferior  to  the 
mortgage  lien  of  the  plaintiff,  it  is  insufficient  to  support  a  judg- 
ment against  him.  It  should  allege  that  his  claim  is  subject  to  the 
lien  of  the  mortgage.^  But  if  a  defendant  be  joined  upon  the  alle- 
gation that  he  has  or  claims  some  interest  adverse  to  the  plaintiff, 
the  nature  and  amount  of  which  the  latter  is  ignorant  of,  and  de- 
sires that  the  defendant  may  be  compelled  to  disclose,  and  such 
defendant  answers  by  a  general  denial,  he  is  in  no  condition  to  ques- 
tion a  judgment  foreclosing  the  defendant  of  all  right,  title,  and 
interest  in  the  premises  adverse  to  the  plaintiff,  because  his  answer 
denies  that  he  has  any  claim  or  interest  therein."^ 

1475.  All  the  relief  sought  for  in  the  action  should  be  prayed 
for  in  the  bill,  inasmuch  as  the  court  will  not  generally  grant  any 
relief  not  demanded  in  the  complaint,  especially  when  no  answer  is 

1  English  w.  Aldrich,  132  Ind.  500,31  N.  220;  Nooner  y.  Short,  20  Kans.  624;  Neit- 
E.  Rep.  456.  zel  v.  Hunter,  19  Kaus.  221. 

2  Cromwell  v.  MacLean,  123  N.  Y.  474,  *  Blandin  y.  Wade,  20  Kans.  251.  And 
25  N.  E.  Rep.  932.  see  Bradley  v.  Parkhurst,  20  Kans.  462. 

^  See  §  1440;  Short  v.  Nooner,  16  Kans. 

390 


THE   BILL   OR   COMPLAINT.  [§§  1476,  1477. 

interposed.!  As  will  be  noticed  in  a  subsequent  chapter,  a  judgment 
for  the  deficiency  may  be  had  in  most  of  the  States  where  foreclosure 
is  obtained  by  an  equitable  action,  at  the  same  time  that  a  decree 
for  a  sale  of  the  property  is  entered  :  but  if  both  of  these  remedies 
are  desired,  the  complaint  must  ask  for  them ;  for  otherwise,  after 
default,  no  judgment  for  a  deficiency  can  be  rendered  ;2  and  the 
omission  of  a  prayer   for   a  sale  of  the   property  is  ground  for  de- 


murrer. 


.  3 


1476.  The  essential  grounds  for  relief  or  decree  asked  for  must 
be  set  out  in  the  bill;  as,  for  instance,  if  the  priority  of  the  mort- 
gage depends  upon  the  fact  that  it  was  given  for  purchase-money, 
or  upon  the  fact  that  subsequent  mortgagees  had  notice  of  the 
mortgage  before  they  took  their  liens  upon  the  property,  no  relief 
founded  on  these  facts  can  be  given  unless  they  are  stated  in  the 
bill ;  though  being  a  formal  defect  the  bill  may  be  amended.*  The 
bill  is  not  demurrable,  however,  because  the  relief  demanded  is 
greater  than  or  different  from  that  which  the  facts  entitle  the  plain- 
tiff to.5 

1477.  A  personal  judgment  for  a  deficiency  cannot  be  entered 
against  a  defendant  unless  it  is  asked  for  in  the  complaint.^  But 
such  a  judgment  may  be  entered  upon  a  complaint  which  asks  that 
the  mortgage  shall  be  foreclosed,  that  the  mortgaged  property  shall 
be  sold  to  pay  the  debt  evidenced  by  the  note,  and  to  pay  the  costs, 
attorney's  fees,  etc.,  and  that  execution  shall  be  issued  for  the  bal- 
ance. A  petition  no  more  defective  than  this  may  be  amended  at 
any  time,  without  costs,  so  as  to  make  it  formal.'  If  a  personal 
judgment  is  sought  against  a  purchaser  from  the  mortgagor,  the 
ground  of  his  liability  must  be  set  forth.^  Where,  after  an  action 
of  foreclosure  is  commenced  against  the  mortgagor,  he  answers 
alleging  that  he  has  sold  the  land  to  a  purchaser  who  assumed  the 
payment  of  the  mortgage,  and  such  purchaser  is  thereupon  served 
with  a  summons  requiring  him  to  answer,  it  is  error  for  the  court, 
in  his  aljsence,  and  without  any  pleadings  having  been  filed  by  him, 
to  render  against  him  a  personal  judgment,  when  the  petition  does 

1  Bullwinker  I'.  Kyker,  12  Abb.  Tr.  311.  ^  Scheibe  v.  Kennedy,  64  Wis.  564,  25 
And  see  Grant  v.  Vaudercook,  8  Abb.  Pr.    N.  W.  Rep.  646. 

N.  S.  45.5,  57  Barb.  165.  ^  Simonson  v.  Blake,  12  Abb.  Pr.  331, 

2  Simonson  t'.  Blake,  20  How.  Pr.  484;  20  How.  Pr.  484;  French  v.  New,  20  Barb. 
12  Abb.  Pr.  331;  Hansford  v.  Holdam,  14  481,484;  BuUwiuker  i>.  Ryker,  12  Abb.  Pr. 
Bush,  210,  7  Reporter,  177.  311. 

3  Santacruz  v.  Sautacruz,  44  Miss.  714.  "  Foote  v.  Sprapue,  13  Kans.  155. 

*  Armstrong  v.  Ross,  20  N.  J.  Eq.  109;        ^  Ilammons  v.  Bij^elow,  115  lud.  363,  17 
Iowa  County  v.  Mineral  Point  K.  R.  Co.  24     N.  E.  Rep.  192. 
Wis.  93. 

391 


§§  1478,  1479.]       FORECLOSURE    BY   EQUITABLE   SUIT. 

not  state  any  cause  of  action  against  him,  or  mention  or  refer  to 
him.^ 

1478.  When  the  mortgage  secures  several  notes  some  of 
which  are  not  due  when  the  bill  is  filed,  the  complainant  should 
ask  in  his  bill  that  so  much  of  the  debt  as  may  become  due  before 
final  decree  should  be  included  in  it.^  It  is  irregular  to  include 
in  the  judgment  a  note  which  matured  after  the  filing  of  the  bill, 
unless  some  foundation  is  laid  for  it  in  the  pleadings.  If  this  is  not 
done  a  supplemental  bill  should  be  filed,  praying  that  the  note 
which  has  matured  since  the  filing  of  the  bill  should  be  included  in 
the  decree.3  The  action,  however,  cannot  be  commenced  before 
anything  is  due,  and  then  be  made  good  by  a  supplemental  com- 
plaint after  a  portion  of  it  has  matured  ;  ^  but  the  action  being 
properly  begun,  additional  relief  may  in  this  way  be  had  for  rights 
that  have  since  accrued.^ 

III.   The  Answer  mid  Defence. 

1479.  In  general.  —  Besides  the  special  defences  arising  out  of 
the  circumstances  of  the  particular  case,  there  may  of  course  be  as 
many  general  defences  as  there  are  general  allegations  in  the  bill  or 
complaint,  as  well  as  the  defences  applicable  to  contracts  generally. 
There  may  be  a  denial  of  the  execution  and  delivery  of  the  mort- 
gage, and  of  the  plaintiff's  right  to  maintain  the  action ;  a  denial  of 
personal  liability  ;  a  denial  of  any  title  in  the  mortgagor  at  the  time 
of  giving  the  mortgage ;  an  allegation  of  want  of  consideration, 
usury,  or  the  statute  of  limitations  ;  an  allegation  of  payment,  or 
that  the  debt  is  payable  upon  an  event  wdiich  has  not  happened  ;  ^ 
an  allegation  of  a  counter-claim  or  set-off ;  of  non-joinder  of  defend- 
ants ;  of  a  discharge  ;  of  an  equity  of  redemption  in  a  part  of  the 
premises,  and  an  equitable  right  to  require  the  sale  of  the  residue  of 
them  first ;  and  finally,  a  disclaimer  of  title  or  interest.  Some  of 
these  defences  will  be  illustrated  with  such  citations  of  cases  as  seem 
of  general  importance  and  application.'^ 

As  a  general  rule,  one  defendant  cannot  by  his  answer  impeach 

1  Beecher  v.  Ireland,  46  Kans.  97,  26  Pac.  823  ;  Adams  v.  Essex,  1   Bibb,  149 ;  Man- 
Eep.  448  ;  Kimball  v.  Connor,  3  Kans.  414,  ning  v.  McClurg,  14  Wis.  350. 
distinguished.  *  McCullough  v.  Colby,  4  Bosw.  603. 

2  See  §§  606,  1459,  1577,  1591,  1700;  ^  Candler  i;.  Pettit,  1  Paige,  168,19  Am. 
Malcolm  v.  Allen,  49  N.  Y.  488  ;  Dan  Har-  Dec.  399  ;  Bostwick  v.  Menck,  8  Abb.  Pr. 
tog  V.  Tibbitts,  1  Utah  T.  328;  McLane  v.  N.  S.  169. 

Piaggio,  24  Fla.  71,  3  So.  Rep.  823.  ^  Lucas  v.  Hendrix,  92  Ind.  54. 

3  Williams  v.  Creswell,  51  Miss.  817;  '  For  a  case  where  the  matters  set  up  in 
McLane  v.  Piaggio,  24  Fla.  71,3  So.  Rep.    defence  were  pronounced  frivolous,  see  Weil 

«;.  Uzzell,  92N.  C.  515. 

392 


THE  ANSWER  AND  DEFENCE.     [§§  1480,  1481. 

the  mortgage  of  a  co-defendant ;  although  he  alleges  in  his  answer 
that  such  mortgage  was  fraudulent  and  void,  his  co-defendant,  to 
whom  it  belongs,  is  not  bound  to  put  in  any  defence.  Such  answer 
cannot  be  taken  as  confessed  against  him.  One  defendant  can  have 
relief  against  another  only  upon  a  crossbill.^ 

A  cross-bill  must  be  confined  to  the  subject  matter  of  the  bill. 
It  is  proper  whenever  it  is  necessary  to  adjust  all  the  equities  be- 
tween the  parties  connected  with  the  subject  matter  of  the  original 
bill.  Though  matters  wholly  foreign  to  the  original  bill  cannot  be 
introduced,  new  issues  in  relation  to  the  matters  contained  in  that 
bill  may  be  brought  up  by  the  cross-bill.^  If  the  defendant  is  en- 
titled to  affirmative  relief  against  the  plaintiff,  as,  for  instance,  in 
case  he  has  overpaid  the  mortgage,  he  should  file  a  cross-bill. ^  If  a 
cross-bill  is  filed  by  one  who  has  a  junior  title  of  record,  insisting 
that  he  nevertheless  has  a  prior  equity,  he  must  allege  all  the  facts 
necessary  to  show  his  prior  right.* 

On  a  cross-bill  filed  in  answer  to  a  bill  to  cancel  a  mortgage,  the 
execution  and  amount  of  which  is  admitted  and  its  validity  estab- 
lished, a  decree  of  foreclosure  may  be  granted.^ 

1480.  An  answer  founded  upon  a  release  or  any  written  instru- 
ment may  set  it  out  at  length  with  proper  averments,  or  may  give 
a  brief  description  of  it,  with  averments  of  the  facts  connected 
therewith.  An  answer  which  states  merely  a  conclusion  of  law, 
without  facts  to  support  it,  as,  for  instance,  that  the  mortgage  is  of 
no  binding  effect,  and  no  lien  upon  the  premises  described,  is  un- 
availing.^ 

1481.  The  denial  of  an  allegation  must  be  explicit,  and  not  be 
left  to  be  inferred.  Where  a  complaint  sets  forth  the  condition  of 
a  bond,  and  avers  that  a  mortgage  securing  it  was  executed  "  with 
the  same  condition  as  said  bond,"  an  answer  which  merely  repeats 
the  words  of  the  condition  as  stated  in  the  complaint,  and  avers 
that  it  is  not  contained  in  the  mortgage,  is  not  a  denial  that  such 
was  in  substance  the  condition  of  the  mortgage.  The  answer,  to 
avail  anything,  should  at  least  show  that  there  was  nothing  on  the 
face  of  the  mortgage  to  connect  it  with  the  bond.'     No  defence  can 

1  Brinkerhoif  v.  Franklin,  21  N.  J.  Eq.  ^  Newaygo  Co.  Manuf.  Co.  v.  Stevens,  79 
334;  Vanderveer  I'.  Holcomb,  21  N.  J.  Eq.    Mich.  398,  44  N.  W.  Rep.  852;  Smith  v. 

105;  Davis  v.  Cook,  65  Ala.  CI 7.  Atkins,  27  Neb.  248, 42  N.  W.  Kep.  1043. 

-  Davis  V.  Cook,  C5  Ala.  617.  «  Caryl  v.  Williams,  7  Lans.  416. 

3  Ilathway  u.   Ilagan,  59  Vt.  75,  8  Atl.        '  Dimon  t>.  Dunn,  15  N.  Y.  498,  rever.sing 

Rep.  678.  Dimon  v.   Bridges,   8   How.  Pr.   16.      "It 

^  Blair  v.  St.  Louis,  H.  &  K.  R.  Co.  27  simply  ])lcads  the  existence  of  certain  Ian- 
Fed.  Rep.  176.  guage,  without  denying  the  substance  of  the 

393 


§§  1482,  1483.]      FORECLOSURE   BY  EQUITABLE   SUIT. 

be  availed  of  which  is  not  set  up  in  the  9,nswer.^  In  like  manner 
any  defence  set  up  by  the  answer  must  be  set  forth  by  averments 
wliioli  make  a  comjDlete  defence.^ 

1482.  The  mortgagee's  title  cannot  be  questioned  in  defence 
to  tlie  bill.3  This  can  only  be  investigated  at  law.*  If  he  took,  by 
virtue  of  his  mortgage,  any  estate  whatever  which  is  still  subsisting, 
he  is  entitled  to  a  decree;  and  the  court  will  not  inquire  what  inter- 
est he  has  in  the  mortgaged  estate,  or  whether  he  has  anj^  interest 
at  all  in  some  part  of  it.^  If  the  mortgage  was  given  by  the  heir 
on  land  to  which  he  had  title  by  descent,  the  rights  of  decedent's 
creditors  cannot  be  tried  on  a  bill  by  the  mortgagee  to  foreclose  such 
mortgage,  though  no  administrator  has  ever  been  appointed.*^ 

An  exception  is  apparently  made  to  this  rule  that  the  title  is  not 
in  issue,  in  cases  where  usury  may  be  shown  in  defence  under  stat- 
utes which  would  make  the  deed  absolutely  void,  and  usury  in  the 
loan  is  established.  This,  however,  is  not  strictly  an  investigation 
of  the  title,  but  rather  of  the  validity  of  the  instrument ;  just  as 
this  is  the  inquiry  when  it  is  claimed  that  the  maker  of  it  was  not 
of  sound  mind,  or  that  he  made  it  under  duress,  or  that  he  did  not 
make  it  at  all.'^ 

The  owner  of  the  equit}^  of  redemption  subject  to  two  mortgages 
cannot  object  that  the  senior  mortgagee  yields  his  priority  of  lien  to 
the  junior  mortgagee.^ 

It  is  no  defence  that  the  mortgage  was  executed  by  the  heirs  of 
the  owner  after  his  death,  and  that  he  left  debts  which  remain 
unpaid,  and  that  the  estate  is  under  administration  in  the  probate 
court.^ 

1483.  A  mortgagor  is  estopped  to  deny  his  title.^^  jjg  pan- 
contract  as  set  out  in  the  complaint,  and  so  as  to  provide  that  the  decree  and  sale 
without  setting  out  the  contract  itself,  so  thereunder  should  be  without  prejudice  to 
that  the  court  may  see  what  it  is.  It  may  the  respondent's  right  to  contest  the  title  in 
be  well  that  nothing  is  said,  in  terms,  in  the    an  action  at  law. 

mortgage,  as  to  the  effect  of  the  non-pay-  ■*  Bull  v.  Meloney,  27  Conn.  560  ;  Palmer 

ment  of  interest;  and  yet  it  may  refer  to  v.  Mead,   7  Conn.   149;  Broome  v.  Beers, 

the  bond  in  such  a  manner  as  to  adopt  its  6  Conn.   198;  Anderson  i;.  Baxter,  4  Oreg. 

provisions."     Per  Chief  Justice  Denio.  105. 

An  admission  by  the  mortgagor  that  he  ^  Hill  v.  Meeker,  23  Conn.  592 ;  Wooden 

made  "some  such  bond  and  mortgage  "  oh-  v.  Haviland,    18   Conn.   101;    Williams  v. 

viates  necessity  of  proof.     Wills  v.  Mclvin-  Eobinson,  16  Conn.  517. 

ney,  30  N.  J.  Eq.  465.  6  Lebanon  Sav.  Bank  v.  Waterman,  65  N. 

1  Higman  i'.  Stewart,  38  Mich.  513.  H.  88,  19  Atl.  Rep.  1000,  17  Atl.  Rep.  577. 

-  Mann  i-.  State,  116  Ind.  383,  19  N.  E.  '  Cowles  v.  Woodruff,  8  Conn.  35. 

Rep.  181.  »  Mobile  &  Cedar  Point  R.  R.  Co.  v.  Tal- 

3  §  1440  ;  Chapin  v.  Walker,  6  Fed.  Rep.  man,  15  Ala.  472. 

794.    In  this  case,  the  respondent  having  set  ^  Cook  v.  De  la  Guerra,  24  Cal.  237. 

np  an  adverse  title,  the  decree  was  modified  i"  Bush  v.  Marshall,  6  How.  284  ;  Dime 

394 


THE   ANSWER   AND   DEFENCE.  [§  1483. 

not  set  up  as  a  defence  for  himself  against  the  mortgagee,  that 
the  property  so  mortgaged  is  trust  property  which  he  had  no  right 
to  mortgage.  He  cannot  claim  adversely  to  his  deed,  but  is  es- 
topped by  it.i  Whether  this  estoppel  arises  from  the  making  of 
the  mortgage  deed,  or  from  the  relation  of  the  mortgagor  at  common 
law  as  a  quasi  tenant  of  the  mortgagee,  or  from  express  or  implied 
covenants  for  title,  has  been  an  unsettled  question.  But  at  the 
present  time,  and  especially  where  a  mortgage  is  merely  a  lien  and 
not  a  title,  this  estoppel  must  be  regarded  as  arising  only  from  a 
covenant  for  title,  express  or  implied.  In  the  absence  of  such  a 
covenant,  the  mortgagor  may  therefore  show  what  his  interest  in 
the  mortgaged  land  was  at  the  time  of  the  delivery  of  the  mort- 
gage, and  may  show  that  a  subsequently  acquired  title  does  not 
inure  to  the  benefit  of  the  mortgagee.^  A  wife  joining  her  husband 
in  a  deed  of  his  land,  but  not  making  any  covenants,  is  not  estopped 
to  claim  title  to  the  land  under  a  mortgage  held  by  her.-^  The 
decree  binds  his  interest,  whatever  that  may  be,  and  nothing  more.* 
A  mortgage  made  by  the  heirs  of  a  deceased  owner,  before  the 
settlement  of  the  estate,  cannot  be  objected  to  by  them  on  the 
ground  that  the  creditors  and  legatees  of  the  estate  have  not  been 
paid.^  A  mortgagor  ma}',  however,  in  an  action  brought  by  an 
assignee,  set  up  and  prove  a  mistake  in  the  drawing  of  the  instru- 
ment and  have  it  reformed.^  But  it  has  been  held  that  a  mort- 
gagor who  had  given  a  mortgage  upon  land  held  by  him  under  the 
preemption  act,  after  filing  his  declaratory  statement  and  before- 
entry,  and  therefore  void,  was  not  estopped  from  setting  up  the  in- 
validity of  it  in  defence,  when  no  fraud,  misrepresentation,  or  con- 
cealment on  his  part  was  shown." 

A  wife  who  has  joined  in  her  husband's  mortgage  of  certain 
lands,  including  the  homestead,  cannot  on  foreclosure  claim  that 
the  home  lot  was  her  separate  property,  and  that  she  had  not 
known  that  the  mortgage  covered  it,  —  that  she  had  not  read  the 
mortgage  nor  heard  it  read  ;  and  that,  if  she  had,  she  would  not 

Sav.  Bank  v.  Crook,  29  Hun,  671  ;  Herber  -  National   Fire  Ins.    Co.   v.   McKay,  1 

V.  Christopherson,  30  Minn.  395,1.5  N.  W.  Sheldon,  138;  Ilaggerty  v.  Byrne,  75  Ind. 

Rep.  676;  Krupp  v.  Krugel,  12  Phila.  174;  479. 

Strung  V.  Waddell,  56   Ala.  471;    Carson  ^  Van  Amburgh  c.  Kramer,  16  Hun,  205. 

V.  Cochran  (Minn.),  53  N.  W.  Rep.  1130;  *  Bird  v.  Davis,  14  N.  J.  Eq.  467.     See 

Stanford   v.  Broadway  Sav.    Co.   122  Ind.  Iloff  y.  Burd,  17  N.  J.  Eq.  201. 

422,  24  N.  W.  Rep.  154.  '^  Cook  v.  De  la  Guerra,  24  Cal.  237. 

1  §§  682,  683  ;  Boisclair  v.  Jones,  36  Ga.  «  Andrews  v.  Gillespie,  47  N.  Y.  487. 

499  ;  Ubina  r.  Wilder,  58  Ga.  178;  Stron<j  '  Brewster  v.  Madden,  15  Kans.  249. 
V.  WaddcU,  56  Ala.  471  ;  McLoon  v.  Smith, 
49  Wis.  200,  5  N.  W.  Rep.  336. 

395 


§  1484.]  FORECLOSURE   BY    EQUITABLE   SUIT. 

have  recognized  tlie  home  lot  by  its  description  —  if  it  appear  that 
the  mortgagee  had  acted  in  good  faith,  and  had  done  nothing  to 
mislead  her.^ 

1484.  The  mortgagor  may  be  estopped  by  his  declarations 
or  agreements  from  setting  up  a  defence  otherAvise  valid  ;  as  where 
a  purchaser  of  land  subject  to  a  mortgage  admitted  to  a  third  per- 
son that  it  was  all  right  and  valid,  and  thereby  induced  him  to 
buy  it,  he  was  not  allowed  afterwards  to  urge  a  failure  of  con- 
sideration of  the  mortgage  to  the  injur}^  of  the  assignee.^  And  so 
he  may  be  estopped  from  taking  advantage  of  a  sale  made  with- 
out proper  authority  in  the  officer  to  sell,  because  no  judgment 
of  foreclosure  had  been  entered  on  the  mortgage  :  his  admission 
that  the  debt  was  due  ;  his  acts  at  the  sale  in  forwarding  it  and 
waiving  matters  of  form;  his  delivery  of  possession  to  the  pur- 
chaser, and  his  standing  by  and  suffering  purchasers  to  improve 
the  property,  are  sufficient  for  this  purpose.^  And  so  where  a 
mortgage  made  bj^  one  member  of  a  banking  firm  to  his  co-part- 
ner was  sold  by  them  to  a  purchaser,  with  the  representation  that 
it  was  a  good  bond  and  mortgage,  each  of  them  was  held  to  be 
estopped  from  setting  up  the  defence  of  usury.*  A  mortgagor 
who  has  induced  another  to  take  an  assignment  of  his  mortgage  is 
estopped  from  denying  the  validity  of  it  in  the  assignee's  hands.^ 

Where  a  wife  has  given  a  mortgage  as  surety  for  her  husband,  in 
an  action  to  foreclose  the  mortgage  after  her  death,  the  husband, 
having  procured  the  mortgagee's  money  by  the  mortgage,  is  es- 
topped from  disputing  its  validity.^  And  so,  under  a  statute  forbid- 
ding married  women  from  becoming  sureties,  where  a  married 
woman  represents  that  a  loan  which  is  secured  by  mortgage  on  her 
lands  is  for  her  own  use,  she  will  be  estopped,  as  against  one  who 
in  good  faith  has  contracted  with  her  in  reliance  upon  her  state- 
ments, from  asserting  that  she  is  a  surety,  and  not  the  principal  in 
the  transaction.' 

Where  a  married  woman  makes  application  in  her  own  name  for 
a  loan,  and,  with  her  husband,  gives  a  note  and  mortgage  on  her 
separate  estate  to  secure  the  loan,  and  is  paid  the  proceeds  of  the 

1  Peake  v.  Thomas.  39  Mich.  .584,  585.  "  Taylor  v.   Hearn,    131    Inil.    537,    31 

2  Smith  I'.  Newton,  38  lU.  230.  N.  E.  Rep.  200,  citing  AVard  i:  Insurance 

3  Cromwell  v.  Bank  of  Pittsburg,  2  Co.  103  Ind.  301,  9  N.  E.  Rep.  361  ;  Rogers 
Wall.  Jun.  569.  v.  Insurance  Co.   HI   Ind.  343,   12  N.  E. 

*  Hoeffler  f.  Westcott,  15  Hun,  243.  Rep.  495;   Lane  v.   Schlemmer,    114   Ind. 

5  Johnson  v.  Parmely,  14  Ilun,  398;  296,  15  N.  E.  Rep.  454;  Bouvey  v.  Mc- 
Norrisr.  Wood,  14  Him,''l96.  Neal,   126  Ind.   541,  26  N.   E.   Rep.  39fr; 

6  Ellis  V.  Baker,  116  lud.  408,  19  N.  E.  Cummings  v.  Martin,  128  Ind.  20,  27  N.  E. 
Rep.  193.  Rep.  173. 

396 


THE  ANSWER  AND  DEFENCE.  [§  1485. 

loan,  she  cannot,  in  an  action  to  foreclose  the  mortgage,  set  up  as  a 
defence  that  she  signed  the  note  and  mortgage  merely  as  surety 
for  her  husband.  If  she  paid  over  to  her  husband  the  money  re- 
ceived, it  was  the  result  of  her  own  folly.  Prohibiting  married 
women  from  becoming  sureties  was  intended  as  a  protection,  and 
was  never  intended  to  shield  them  in  the  perpetration  of  a  fraud.^ 

1485.  Defences  against  assignee.  —  It  is  not  often  that  the 
mortgage  is  an  obligation  to  the  mortgagee  personally  which  nei- 
ther his  assignee  nor  personal  representative  can  enforce  ;  yet  such 
a  mortgage  may  be  made  ;  and  such  was  held  to  be  the  effect  of  a 
mortgage  which  was  the  only  evidence  of  the  indebtedness  secured, 
and  this  was  "  to  be  paid  by  the  mortgagor  to  the  mortgagee  when 
called  on  by  said  mortgagee ;  and  the  mortgagor  does  not  agree  to 
pay  the  above  sum  to  any  one  else  except  the  mortgagee."  The 
mortgagee  having  died  without  demanding  payment,  his  adminis- 
trator could  not  make  demand,  and  maintain  a  suit  upon  the 
mortgage.^  It  may  be  presumed  in  such  a  case  that  the  mortgagee 
intended  that  the  debt  should  not  be  paid  at  all  unless  he  himself 
should  see  projjer  to  demand  it;  and  that,  if  he  made  no  demand, 
the  indebtedness  should  be  retained  by  the  mortgagor  as  a  gift ; 
and  having  died  without  making  such  demand,  the  gift  became 
complete. 

In  those  States  in  which  a  transfer  of  the  mortgage  note  carries 
with  it  the  mortgage  security,  it  is  no  defence  to  a  suit  by  an  as- 
signee that  he  had  no  formal  assignment  of  the  mortgage.^  The 
fact  that  he  purchased  the  mortgage  at  a  discount  is  no  defence.'' 
If  the  assignment  was  obtained  by  fraud,  the  defendant  may  show 
that  he  has  paid  it  to  the  mortgagee  from  whom  the  plaintiff  so 
obtained  it.^ 

In  a  suit  by  an  assignee  he  should  ordinarily  prove  the  execu- 
tion of  the  assignment  to  himself ;  but  if  he  produces  the  note  and 
mortgage,  and  the  mortgagee,  who  is  made  a  party,  is  defaulted, 
a  judgment  creditor  of  the  mortgagor  cannot  call  in  question  the 
assignee's  title.^ 

The  motives  of  the  assignee  in  acquiring  the  assignment,  and  in 
foreclosing  the  mortgage,  cannot  be  set  up  in  defence,  and  afford  no 

1  State  V.  Frazier  (Ind.),  34  N.  E.  Rep.  v.  Bunster,  9  Wis.  503 ;  Grissler  v.  Powers, 
636.  53  How.  Pr.  194,  and  cases  cited,  37  Am. 

2  Sebrell  v.  Couch,  55  Ind.  122.  Eep.  475. 

■^  Rice  V.  Cribb,  12  Wis.  179;  Jackson  v.  6  u-iw  j,  Eiwin,  60  Barb.  349,  57  N.  Y. 

Blodget,  5  Cow.  202,  205;  Jackson  v.  Wil-  643,  66  N.  Y.  649, 

lard,  4  Johns.  41,  43.  «  Marksou  v.  Ide,  29  Kaus.  649. 

*  Knox  V.  Galligan,  21   Wis.  470;  Croft 

397 


§  I486.]  FORECLOSURE   BY    EQUITABLE   SUIT. 

ground  for  staying  the  suit.^  It  is  no  defence  to  a  suit  by  an  as- 
signee to  foreclose  a  mortgage  that  the  assignee  took  title  from 
motives  of  malice,  and  solely  with  a  view  to  bring  an  action,  and 
that  the  assignor  assigned  it  from  a  like  motive,  and  without  con- 
sideration. It  is  sufficient  to  sustain  the  action  that  the  debt  is 
due  and  has  been  transferred  to  the  plaintiff ;  and  the  mortgagor 
can  only  arrest  the  action  by  paying  or  tendering,  and  bringing  into 
court,  the  amount  due.^ 

Where  an  assignee  seeks  to  foreclose  a  mortgage  which  the 
mortgagee  testifies  was  given  without  consideration  moving  from 
him,  and  that  he  assigned  it  at  the  request  of  one  of  the  mort- 
gagors without  consideration,  this  evidence  casts  upon  the  com- 
plainant the  burden  of  proof  that  there  was  a  consideration  for  the 
mortgage.^ 

A  mortgagor  is  not  estopped  from  setting  up  a  valid  defence,  as 
against  an  assignee  for  value  without  notice,  merely  on  the  ground 
that  he  failed  before  the  assignment  to  take  proceedings  to  procure 
the  discharge  of  record  and  delivery  up  of  a  mortgage."^ 

1486.  Assignee  for  value.  —  It  is  not  necessary  to  constitute  a 
lond  fide  holding  by  the  assignee  that  he  should  have  paid  value 
for  the  security  at  the  time  of  receiving  it.  A  past  consideration 
is  sufficient.^  A  farmer  and  his  wife,  on  the  line  of  a  proposed 
railroad  in  Wisconsin,  subscribed  to  stock  in  the  road,  and  mort- 
gaged their  farm  to  secure  a  negotiable  note  given  in  payment 
of  the  subscription,  upon  representations  made  by  agents  of  the 
road  and  others  that  the  road  would  prove  a  very  lucrative  invest- 
ment, and  a  very  profitable  thing  to  the  neighborhood.  After  a 
good  deal  of  money  had  been  laid  out  in  grading  and  other  work 
upon  the  road,  the  further  building  of  it  was  stopped  for  want  of 
funds,  and  it  remained  unfinished.  The  mortgage  having  been 
assigned  before  maturity  to  a  director  of  the  road,  who  was  also 
a  large  creditor  of  it  at  the  time  the  mortgage  was  made,  upon  a 
bill  filed  by  him  to  foreclose  it,  he  was  held  to  be  a  bo7id  fide  holder 
for  value,  and  entitled  to  a  decree.^ 

1  Davis  I".  Flagg,  35  N.  J.  Eq.  491.  that  he  has  the  power  to  protect  himself  by 

2  Morris  v.  Tiuhill,  72  N.  Y.  575.  making  inquiries  at  the  proper   sources." 
8  Bishop   V.   Felch,  7    Mich.  371.      See    Per  Pitney,  V.  C. 

Hughes  V.  Thweatt,  57  Miss.  576.  ^  Croft  v.  Bunster,  9  Wis.  503. 

*  Magie  v.  Reynolds  (N.  J.),  26  Atl.  Rep.  6  Sawyer  v.  Prickett,  19  Wall.  146.     In 

150.     "  He  had  a  right  to  rely  upon  the  this    case,   moreover,    the    representations 

well-settled  rule  of  law  that  the  purchaser  were  not  considered  binding,  because  they 

of   a  chose  in  action  of  this  character   (a  were  promissory,  and  not  representations  of 

mortgage    securing  a  non-negotiable   obli-  existing  facts  peculiarly  within  the  know- 
gation)  lakes  it  subject  to  all  equities,  and 

'  398 


THE  ANSWER   AND   DEFENCE.  [§  1487. 

The  fact  that  the  consideration  for  an  assignment  of  a  mortgage 
was  a  gaming  debt  owed  the  assignee  by  the  assignor  is  no  defence 
to  an  action  by  the  assignee  against  tlie  mortgagor  for  the  fore- 
closure of  the  mortgage.^ 

1487.  When  assignee  takes  free  from  equities.  —  The  assignee 
before  maturity  of  a  negotiable  note  secured  by  mortgage  takes  it 
free  from  an}'  equitable  defences  which  the  mortgagor  might  have 
had  against  it  in  the  hands  of  the  mortgagee,  of  which  the  assignee 
had  no  notice  at  the  time  the  assignment  was  made.^  The  defend- 
ant cannot  set  up  payment  to  tlie  mortgagee  after  the  assignment 
of  the  mortgage.^  Even  duress  or  fraud  in  the  execution  of  the 
mortgage  is  not  available  as  a  defence  against  such  an  assignee.* 
When  a  defence  valid  against  tlie  assignor  is  made,  the  plaintiff 
must  show  that  he  is  a  bond  fide  purchaser  for  value,  where  that 
issue  is  raised  b}'  the  pleadings.^  The  rule  in  this  respect  is  the 
same  whether  the  negotiable  note  is  secured  by  a  mortgage  or  not. 
"  The  contract  as  regards  the  note,"  says  Mr.  Justice  Swayne,^ 
"  was,  that  the  maker  should  pay  it  at  maturity  to  any  bond  fide 
indorsee,  without  reference  to  any  defences  to  which  it  might 
have  been  liable  in  the  hands  of  the  payee.  The  mortgage  was 
conditioned  to  secure  the  fulfilment  of  that  contract.  To  let  in 
such  a  defence  against  such  a  holder  would  be  a  clear  departure 
from  the  agreement  of  the  mortgagor  and  mortgagee,  to  which  the 
assignee  subsequently  in  good  faith  became  a  party.  If  the  mort- 
gagor desired  to  reserve  such  an  advantage,  he  should  have  given  a 
non-negotiable  instrument.  If  one  of  two  innocent  persons  must 
suffer  by  a  deceit,  it  is  more  consonant  to  reason  that  he  who  'puts 
trust  and  confidence  in  the  deceiver  should  be  a  loser  rather  than  a 
stranger.'  ""  ]\Ioreover,  the  mortgage  being  considered  a  mere  inci- 
dent of  the  debt,  an  accessory  to  the  principal  thing,  the  rights  of 

ledge  of  the  party  making  them.     Aud  see  see  Baily  v.  Smith,  14  Ohio  St.  396,  84  Am. 

Leavitt  v.  Pell,  27  Barb.  322.  Dec.  38.5 ;  Palmer  v.  Yates,  3  Sandf.  137  ; 

1  Keed  v.  Boud,  96  Mich.  134,  55  N.  AV.  i\Ia<,'ie  i'.  Reynolds  (N.  J.),  26  Atl.  Rep. 
Rep.  619.  150,154. 

2  See  §  884;  Carpenter  v.  Longan,  16  Otherwise  in  Illinois  :  Colehour  v.  State 
Wall.  271;    Beals   v.   Neddo,    1   McCrary,  Sav.  lust.  90  111.  152  ;§  838. 

206  ;    Swett  v.  Stark,  31    Fed.  Rep.  858  ;  ^  Mead  v.  Leavitt,  59  N.  H.  476. 
Taylor   v.   Page,   6  Allen,   86;    Pierce   v.  *  Beals  v.  Neddo,  1  McCrary,  206 ;  Simp- 
Faiince,   47    Me.    507;    Reeves   v.   Scully,  son  r.  Del  Hoyo,  94  N.  Y.  189. 
Walk.  (Mich.)  248;  Cicotte  v.  Gagnier,  2  5  Qeizlaff  v.  Seliger,  43  Wis.  297;  Mat- 
Mich.  381 ;  Bloomer  v.  Henderson,  8  Mich,  teson  v.  Morris,  40  Mich.  52. 
395,  77  Am.   Dec.  453;  Fisher  v.   Otis,  3  ^  See   Carpenter   v.   Longan,    16    Wall. 
Chand.   83;    Martineau    v.    McCollum,   4  271. 

('hand.  153;  Croft  v.  Bunster,  9  Wis.  503;  ^  "  Accessorium  non  ducit,  sequitur  suura 

Cornell  v.  Hichens,  11   AVis.  353.     Contra,  principale." 

399 


§§  1488,  1489.]      FORECLOSURE   BY   EQUITABLE   SUIT. 

the  assignee  in  respect  to  the  mortgage  are  determined  by  his  rights 
respecting  the  debt.^  If,  therefore,  the  mortgage  be  given  to  secure 
the  payment  of  a  non-negotiable  note  or  bond,  the  assignee  takes 
it,  as  he  would  such  note  or  bond,  subject  to  the  equitable  defences 
which  the  defendant  would  have  against  it  in  the  hands  of  the  as- 
signor.2  And  so  an  assignee  of  a  mortgage,  taking  it  after  the 
maturity  of  the  debt,  takes  it  subject  to  any  defence  that  would 
have  been  admissible  against  the  mortgagee.^ 

1488.  It  is  a  good  objection  to  a  suit  that  the  complainant 
has  parted  'with  his  interest  in  the  mortgage  before  the  time 
of  answering  ;  the  party  in  interest  is  not  before  the  court.*  But 
the  assignment  of  a  note  and  mortgage  after  the  commencement  of 
foreclosure  proceedings  does  not  affect  a  decree  obtained  therein,  if 
the  assignment  neither  appears  of  recoi'd  nor  is  brought  to  the 
knowledge  of  the  court.^  On  the  other  hand,  a  defendant  who  has 
no  interest  in  the  property  cannot  assail  the  mortgage.^  If  the 
mortgagor,  after  having  suffered  a  bill  of  foreclosure  to  be  taken  as 
confessed  against  him,  conveys  his  interest  in  the  property,  the  pur- 
chaser takes  it  subject  to  the  rights  which  the  complainant  has 
acquired  in  the  suit,  and  to  the  admissions  made  by  the  mortgagor's 
default ;  and  no  defence  can  then  be  taken  which  would  not  have 
been  open  to  the  mortgagor  had  he  not  sold  his  interest.'' 

1489.  Indemnity.  —  Although  the  condition  of  a  mortgage  may 
be  for  the  payment  of  a  certain  sum  of  money,  it  is  competent  to 
show,  by  parol  evidence,  that  the  mortgage  was  really  given  to 
indemnify  the  mortgagee  as  a  surety,  and  that  his  liability  has  been 
discharged  without  his  being  damnified.  The  effect  of  such  proof 
is  not  to  contradict  or  vary  the  mortgage,  but  to  indemnify  the 
demand  to  which  it  really  refers.^  If  there  has  been  no  breach  of 
the  condition  of  a  mortgage  of  indemnity,  there  can  be  no  foreclos- 
ure of  it.'' 

Where  a  suit  is  brought  to  foreclose  a  lost  mortgage  and  note,  the 
defendant  cannot  resist  the  payment  of  either  principal  or  costs  on 

1  Carpenter  v.  Longan,  16   Wall.    271  ;        ''  Caileton  v.  Byington,  18  Iowa,  482. 
Martlneau   v.   McCollum,  4  Chand.    153;        ■?  Watt  y.  Watt,  2  Barb.  Ch.  371. 

Potts  V.  Blackwell,4  Jones  Eq.  58;  Bennett  ^  Colman  v.  Post,  10  Mich.  422,  82  Am. 

V.  Taylor,  5  Cal.  502.  Dec.   49;  Kimball  v.  Myers,  21  Mich.  276, 

2  Matthews  v.  Wallwyn,4  Ves.  118,  126.  4  Am.  Pep.  487;  Man  v.  Elkins,  10  N.  Y. 

3  Robeson  v.  Robeson  (N.  J.  Eq.),  23   Atl.  Supp.  488. 

Rep.  612.  9  Ide  v.   Spencer,  50   Vt.    293.     As   to 

*  Wallace  v.  Dunning,  Walk.  416.     And  breach  of  condition  of  a  mortgage  to  secure 

see  Smith  v.   Bartholomew,  42  Vt.  356.  one  for  becoming  bail,  see  Griswold  v.  Bar- 

<*  Bigelow  V.  Booth,  39  Mich.  622.     And  ker,  57  Vt.  53. 

see  Ellis  v.  Sisson,  96  111.  105. 

400 


THE   ANSWER   AND   DEFENCE.  [§  1490. 

the  ground  of  a  refusal  to  give  him  indemnity .^  In  case  tlie  de- 
fendant is  entitled  to  any  indemnity,  lie  cannot  take  advantage  of 
the  right  in  this  suit,  unless  he  can  show  he  was  ready  before  suit 
to  tender  payment  on  receiving  indemnity .^ 

1490.  Want  of  consideration  for  the  mortgage  or  failure  of  i 
is  a  good  defence  to  it  as  between  the  original  parties,3but  the  proof 
sliould  be  as  clear  and  convincing  as  that  required  for  the  reforma- 
tion of  written  instruments.*  A  partial  failure  of  consideration  is 
a  defence  pro  tanto.  These  defences  must  be  distinctly  pleaded.^  A 
mortgage  given  in  consideration  that  the  mortgagee  should  serve 
nine  months  in  the  army  as  a  substitute  for  the  mortgagor,  who 
had  been  drafted,  cannot  be  enforced  when  it  appears  that  the 
mortgagee  deserted  within  a  few  weeks  after  being  mustered  into 
the  service.^  In  an  action  to  foreclose  the  mortgage  of  a  married 
woman,  she  may  show  by  parol  evidence  that  the  consideration  on 
which  the  mortgage  was  executed  was  her  husband's  indebtedness, 
then  existing  or  thereafter  to  be  incurred.'''  "* 

Evidence  of  ex  parte  statements,  or  declarations  of  the  mortga- 
gor, made  after  the  execution  of  the  mortgage,  that  it  was  given 
•without  consideration,  and  only  for  the  purpose  of  putting  the  prop- 
erty beyond  the  reach  of  his  wife,  with  whom  he  was  having  diffi- 
culty, is  inadmissible.^ 

If  it  appears  that  the  mortgage  was  given  to  secure  future  ad- 
vances which  were  never  made,  the  bill  will  be  dismissed.^  If  some 
advances  are  made  upon  the  mortgage,  though  not  to  the  stipulated 
amount,  the  mortgage  will  be  enforced  to  the  amount  actually  ad- 
vanced upon  it.^*^  On  the  foreclosure  of  a  mortgage  given  to  secure 
the  payment  of  judgments  confessed  by  the  mortgagor,  but  which 
were  void  for  want  of  compliance  with  the  statute,  the  defence  may 
be  taken  that  no  indebtedness  is  shown,  and  the  bill  should  be  dis- 
missed.^^     But  when  there  was  an  actual  consideration  for  a  mort- 

1  Sharp  V.  Cutler,  25  N.  J.  Eq!  425.  77;  Chaffe  v.  Whitfield,  40  La.  Ann.   631, 

2  Massaker  v.  Mackerley,  9  N.  J.  Eq.  440.  4  So.  Rep.  563. 

3  §  610;  Conwell  v.  Clifford,  45  Ind.  392;  5  philbrooks  v.    McEwen,  29  Ind.    347; 
Mell  V.    Moony,   30    Ga.    413  ;    Akerly    v.  Matteson  v.  Morris,  40  Mich.  52. 

Vilas,  21  Wis.   88 ;  Pacific   Iron  Works  v.        6  Nelson  v.  McPikc,  24  Ind.  60. 
Kewhajl,  34  Conn.  67,  77  ;  Banks  v.  Walker,        "^  Ferris  v.  Hard,  135  N.  Y.  354,  32  N.  E. 

2  Sandf.  Ch.  344,  3  Barb.  Ch.  438;  Morris  Eep.  129. 

V.  Davis,  83  Ya.  297,  8  S.  E.  Rep.  247 ;  Caw-        »  Silva  v.  Serpa,  86  Cal.  241,  24  Pac.  Rep. 

ley  V.  Kelley,  60  Wis.  315,  19  N.  W.  Rep.  1013. 

65  ;  Marshall  v.  Reynolds,  12  N.  Y.  Supp.        9  McDowell  v.  Fisher,  25  N.  J.  Eq.  93. 
19  ;  Ilicklin  v.  Marco,  56  Fed.  Rep.  549.  i"  Baldwin  v.  Fla<rg,  36  N.  J.  Eq.  48. 

*  Bray  v.  Comer,  82  Ala.  183;  1  So.  Rep.        "  Austin  v.  Grant,  1  Mich.  490. 
VOL.  II.  26  401 


§  1491.]  FORECLOSURE   BY    EQUITABLE   SUIT. 

gage,  generally  the  inquiry  cannot  be  made  whether  the  considera- 
tion was  full  and  adequate. ^ 

A  junior  mortgagee  may  set  up  want  of  consideration  in  a  senior 
mortgage  which  he  has  assumed,  or  expressly  bought  subject  to.^  The 
burden  of  proof  is  upon  him  to  establish  the  fact  by  a  preponder- 
ance of  evidence.^ 

1491.  Failure  or  want  of  consideration  as  between  the  par- 
ties to  a  mortgage  cannot  be  set  up  as  a  defence  by  a  purchaser 
of  the  land  subject  to  the  mortgage,  which  is  in  fact  a  part  of 
the  consideration,  wliether  he  has  expressly  assumed  the  mortgage  as 
a  part  of  the  purchase-money  or  not.^  In  a  case  in  New  York  the 
owner  of  land  made  a  mortgage  to  an  insurance  company  for  four 
thousand  dollars,  upon  which  the  company  advanced  only  two 
thousand  dollars  at  the  time.  A  further  loan  from  the  company 
of  two  thousand  dollars  was  then  contemplated,  but  was  never 
made.  The  owner  conveyed  his  equity  of  redemption  subject  to 
the  mortgage,  for  a  consideration  expressed  in  the  deed,  from  which 
the  four  thousand  dollars  were  deducted.  Several  subsequent  con- 
veyances of  the  premises  were  made  in  the  same  manner.  After- 
wards the  owner  procured  tlie  insurance  company  to  assign  the 
mortgage  to  a  creditor,  who  paid  the  company  the  amount  advanced 
upon  the  mortgage,  and  credited  the  owner  the  balance  of  the  four 
thousand  dollars  secured.  The  creditor  was  allowed  to  foreclose 
the  mortgage  for  the  entire  sum  of  four  thousand  dollars,  against 
the  objection  of  the  purchaser  of  the  equity  of  redemption  that  it 
was  a  valid  lien  for  only  the  amount  origmally  advanced  upon  it 
with  interest.^     The  court  said  that  the  purchaser's  position  was  in 

1  Norton  iJ.  Pattee,  68  N.  Y.  144.  ley  v.  Tatham,  26  How.  Pr.  158;  Lester  v. 

2  Coleman  v.  Witherspoon,  76  Ind.  285.      Barron,  40  Barb.  297.     But  the  rule  is  cs- 
"^  Stevens  v.  Higginbotham  6  Utah,  215,    tablished  that  the  grantor  may  create   any 

21  Pac.  Hep.  946.  lien  he  pleases  upon  the  land,  whether  it  be 
*  §744;  Horton  i^  Davis,  76  N.  Y.  495;  founded  on  any  consideration  as  between 
Pratt  y.  Nixun,  91  Ala.  192,  8  So.  Rep.  751;  him  and  the  person  in  whose  favor  it  is 
Price  V.  Pollock,  47  Ind.  362  ;  West  v.  Mil-  made  or  not ;  and  if  his  grantee  either  ex- 
ler,  125  Ind.  70,  25  N.  E.  Rep.  143;  Ben-  pressly  or  impliedly  undertakes  for  a  con- 
nett  V.  Mattiugly,  110  Ind.  197,  10  N.  E.  sideration  to  pay  it,  he  cannot  defend  against 
Rep.  299, 11  N.  E.  Rep.  792;  Schee  v.  Me-  it.  See  cases  cited  under  this  section,  and 
Quilken,  59  Ind.  269;  Studabaker  v.  Mar-  also  Ritter  v.  Phillips,  53  N.  Y.  586. 
quardt,  55  Ind.  341.  In  some  of  the  earlier  ^  Freeman  v.  Auld,  44  N.  Y.  50,  overrul- 
cases  in  New  York,  grantees  who  had  as-  ing  same  case  in  37  Barb.  587.  Mr.  Justice 
sumed  the  payment  of  existing  liabilities  Hunt  said  :  "  Two  objections  are  mainly 
were  allowed  to  set  up  defences  other  than  relied  upon  as  justifying  the  judgment  be- 
usury  ;  all  the  authorities  agreeing  that  such  low:  1st.  That  the  insurance  company  ad- 
grantees  cannot  defend  on  that  ground,  vanced  only  the  sum  of  $2,000;  that  they 
See  Russell  v.  Kinney,  1  Sandf.  Ch.  34 ;  could  have  enforced  the  mortgage  for  no 
Jewell  V.  Harrington,  19  Wend.  471  ;  Hart-  greater  amount  against  Allen  and  Stevens 

402 


THE   ANSWER   AND   DEFENCE. 


[§  1492. 


no  respect  different  from  what  it  would  have  been  had  the  original 
owner  counted  out  in  cash  the  sum  specified  in  the  mortgage,  and 
placed  it  in  the  hands  of  their  grantee  as  their  messenger,  with 
directions  to  place  it  in  the  hands  of  the  company,  and  he  had 
placed  it  in  the  hands  of  his  grantee,  who  had  in  turn  delivered  it 
to  his  grantee,  the  owner  of  the  equity  of  redemption,  with  the 
same  directions,  who  with  the  money  in  his  pocket  nevertheless  pro- 
posed to  prove  that  the  mortgage  was  not  a  valid  security  for  the 
amount  in  excess  of  the  original  advance. 

1492.  Fraud  is  a  good  defence  when  it  is  shown  that  it  was 
practised  by  the  mortgagee  or  his  agents  upon  the  mortgagor  ;  or 
when  the  mortgagee  or  his  assignee,  at  the  time  of  talcing  the  mort- 
gage, was  aware  that  a  fraud  had  been  committed  upon  the  mort- 
gagor.^ The  answer  should  distinctly  state  the  several  facts  neces-- 
sary  to  constitute  the  fraud,  and  to  bring  the  knowledge  of  it  home 
to  the  mortirao-ee.  Evidence  of  fraud  is  inadmissible  if  the  answer 
contained  no  allegations  of  fraud .'-^  The  fraud  may  be  a  defence  to 
the  whole  claim,  or  it  may  be  a  defence  in  part,  and  available  as  a 
counter-claim.  The  burden  of  proof,  that  a  mortgage  was  procured 
by  false  representation,  lies  with  the  defendant.*^ 

In  a  foreclosure  suit  against  a  husband  and  wife,  the  latter  may 


(the  mortgagors) ;  and  that  they  could  trans- 
fer to  their  assignee  no  greater  rights  than 
they  possessed  J  2d.  That  if  Allen  and  Ste- 
vens, or  the  insurance  company  as  their  trus- 
tee, could  have  recovered  the  whole  amount, 
that  it  was  a  lien  or  equitable  claim,  and 
that  the  simple  transfer  of  the  mortgage 
did  not  carry  with  it  such  lien  or  claim. 
1st.  I  ioolv  upon  the  insurance  company  as 
holding  this  mortgage  in  a  double  capacity  ; 
as  owners  to  one  half  of  the  amount,  and  as 
trustees  for  Allen  and  Stevens  for  the  resi- 
due. The  latter  wished  to  impose  a  mort- 
gage of  $4,000  upon  the  lot.  The  insurance 
company  did  not  wish  to  advance  the  whole 
amount,  and  the  mortgagees  were  willing 
to  accept  a  reduced  amount,  allowing  the 
mortgage  to  stand  for  its  face.  It  is  quite 
true  that,  in  a  controversy  between  the 
mortgagees  and  the  company,  the  latter 
could  not  have  compelled  the  payment  of 
the  full  amount.  It  is  equally  true  that, 
where  there  is  no  such  controversy,  where 
the  makers  desire  it  to  be  enforced  to  its 
nominal  amount,  where  the  holders  of  the 
property  have  consented  and  agreed  that  it 
should  be  so  enforced,  and  have  had  a  de- 


duction of  $2,000  from  their  purchase-money 
based  upon  the  payment  by  them,  or  the 
subjecting  the  premises  to  the  full  amount 
of  the  mortgage,  that  the  payment  in  full 
should  be  enforced.  The  insurance  com- 
pany may  collect  the  full  sum.  They  hold 
it  for  their  own  benefit  to  the  amount  ad- 
vanced by  them ;  as  trustees  for  Allen  and 
Stevens,  for  the  amount  not  allowed."  See 
Grissler  v.  Powers,  53  How.  Pr.  194,  distin- 
guished from  above. 

1  §§  624-632;  Hicks  ?>.  Jennings,  4  Woods, 
496;  AikiH  v.  Morris,  2  Barb.  Ch.  140; 
Reed  v.  Latson,  15  Barb.  9  ;  Allen  v.  Shack- 
elton,  15  Ohio  St.  145.  And  see  Abbott  v. 
Allen,  2  Johns.  Ch.  519,  7  Am.  Dec.  554  ; 
Champlin  v.  Laytin,  6  Paige,  189,  affirmed 
18  Wend.  407,  31  Am.  Dec.  382  ;  Bennett 
V.  Bates,  26  Hun,  364  ;  Cornell  v.  Corbin, 
64  Cal.  197;  Lurch  v.  Holder  (N.  J.),  27 
At!.  Hep.  81. 

2  Wilson  V.  White,  84  Cal.  239,  24  Pac. 
Rep.  114. 

8  Sloan  V.  Holcomb,  29  Mich.  153;  Per- 
rett  V.  Yarsdorfer,  37  Mich.  596;  Elphickw. 
Hoffman,  49  Coun.  331. 

403 


§  1492  «.]  FORECLOSURE   BY   EQUITABLE   SUIT. 

in  her  answer  aver  that  she  did  not  intend  to  convey  the  hind 
described,  and  was  induced  to  sign  the  mortgage  through  fraud 
and  colkision  on  the  part  of  her  husband  and  the  mortgagee. 
She  need  not  assert  this  defence  by  cross-bill.^  An  answer  by 
the  wife,  alleging  that  she  executed  the  mortgage  under  duress 
by  her  husband,  is  insufficient,  unless  it  also  shows  that  the  mort- 
gagee was  in  some  way  connected  with  or  had  knowledge  of  the 
duress.^ 

A  subsequent  mortgagee  may  set  up  fraud  in  the  consideration 
of  a  prior  mortgage  b}'  answer,  without  filing  a  cross-bill ;  and  a 
general  allegation  of  such  fraud  is  sufficient  where  the  fraud  alleged 
is  that  the  mortgage  was  given  to  defraud  creditors,  and  was  without 
consideration.^ 

1492  a.  A  fraudulent  alteration  of  a  mortgage  or  of  the  note 
secured,  made  by  the  mortgagee,  may  defeat  a  recovery.  To  have 
this  effect  the  alteration  must  be  one  made  by  the  holder  of  the 
mortgage  in  a  material  matter,  with  a  fraudulent  intent.  An  altera- 
tion not  made  by  a  party  to  the  instrument  is  without  effect,  and 
the  original  validity  of  the  instrument  remains.*  Thus  the  altera- 
tion of  a  mortgage  by  an  agent  of  the  mortgagee  without  his  know- 
ledge, so  as  to  make  it  secure  other  notes,  does  not  affect  the  validity 
of  the  mortgage,  in  an  action  to  foreclose  it  for  non-payment  of  the 
notes  which  it  was  originally  given  to  secure.^ 

If  an  alteration  appears  on  the  face  of  the  mortgage  note,  and 
there  is  no  evidence  that  it  was  made  with  a  fraudulent  intent,  and 
the  effect  of  it  is  merely  to  make  the  note  mature  at  an  earlier  date 
than  it  would  as  originally  written,  such  alteration  is  no  defence  to 
an  action  for  foreclosure  brought  after  the  maturity  of  the  note  and 
mortgage  as  originally  written. ^ 

Forgery  of  a  mortgage  is  of  course  a  defence,  when  proved,  and 
a  judgment  cancelling  the  apparent  lien  caused  by  such  mortgage 
may  be  entered.'' 

1  Genthuer  r.  Fagan,  85  Tenn.  491,3  S.  N.Y.  122, 21  N.E.  Rep.  168  ;  Vermont :  Bige- 
W.  Rep.  351.  low  v.  Stilphen,  35  Vt.  521.     Pennsylvania  : 

2  Gardner  i'.  Case,  111  Ind.  494,  13  N.  E.  Robertson  v.  Hay,  91  Pa.  St.  242.  New 
Rep.  36;  Line  ?;.  Blizzard,  70  Ind.  23  ;  Tal-  Jersey:  Hunt  v.  Gray,  35  N.  J.  L.  227. 
ley  V.  Robinson,  22  Gratt.  888;  Green  v.  Massachusetts:  Nickerson  v.  Swett,  135 
Scranage,  19  Iowa,  461,  87  Am.  Dec.  447.  Mass.  514.     Indiana:  Brooks  v.  Allen,  62 

8  McGuckin  v.  Kline,  31   N.  J.  Eq.  454;  Ind.  401. 

McConihe  v.  Fales,  107  N.  Y.  404,  14  N.  E.  6  Gleason  v.  Hamilton,  138  N.  Y.  353,  24 

Rep.  285.  N.  E.  Rep.  283,  affirming  1 9  N.  Y.  Supp.  103. 

*  New  York:  Casoni  r.  Jerome,  58  N.  Y.  6  Wolferman  v.  Bell    (Wash.),  32   Pac. 

315,  321  ;  Smith  v.  Kidd,  68  N.  Y.  130,  141  ;  Rep.  1017. 

Martin  v.  Insurance  Co.  101  N.  Y.  498,  5  N.  '  Capital  Nat.  Bank  v.  Williams,  35  Neb. 

E.  Rep.  338;  Solon  v.  Savings  Bank,  114  410,  53  N.  W.  Rep.  202. 

404 


THE  ANSWER  AND  DEFENCE.    [§§  1492  6,  1493. 

1492  b.  Fraud  as  against  mortgagor's  creditors.  —  In  an  ac- 
tion by  a  mortgagee  to  foreclose  a  mortgage,  against  the  assignee 
for  tlie  benefit  of  creditors  of  the  mortgagor,  an  answer,  seeking  to 
avoid  the  mortgage  as  in  fraud  of  subsequent  creditors,  must  ex- 
pressly aver  that  it  was  executed  with  intent  to  defraud  them, 
where  by  statute  the  question  of  fraudulent  intent  is  one  of  fact.^ 

A  subsequent  purchaser  of  the  mortgaged  premises,  who  has  pur- 
chased with  notice  of  the  existence  of  the  mortgage,  cannot  set  up 
that  the  note  was  without  consideration,  and  was  given  for  the  pur- 
pose of  defrauding  the  mortgagor's  creditors,  even  as  against  an 
assignee  of  the  note  and  mortgage  after  maturity.^ 

1493.  Usury  is  a  defence.^  —  The  effect  of  the  illegal  rate  of 
interest  may  be  obviated  if  it  can  be  shown  that  it  was  inserted 
by  mistake  when  the  parties  intended  to  provide  for  the  legal 
rate  only.*  The  law  governing  the  contract  as  to  usury  is  that  of 
the  State  where  it  was  made,  if  made  in  a  State  other  than  that 
in  which  the  mortgaged  property  is  situate.^  It  may  be  availed  of 
by  a  wife  for  the  protection  of  her  homestead  or  of  her  dower  inter- 
est, although  her  husband  be  estopped  by  his  acts  from  setting  it 
up  as  a  defence.^ 

If  the  answer  alleges  generally  that  the  mortgage  contract  is 
usurious  without  any  specific  allegation,  the  defence  must  be  lim- 
ited to  a  violation  of  the  statute  of  the  State  regarding  usury,  and 
its  usurious  character  under  any  other  statute  cannot  be  shown  ;  "^ 
and  such  an  answer  under  the  systems  of  pleading  and  practice 
generally  in  vogue  would  amount  to  nothing.^  The  answer  must 
allege  the  usury,  and  strict  proof  of  the  usurious  character  of  the 
mortgage  must  be  given. ^  After  default  has  been  entered,  it  would 
seem  that  it  will  not  be  removed  to  allow  this  defence  except  upon 
special  terms. ^'^ 

Whether  the  defence  of  usury  is  a  personal  privilege  of  the 
debtor,  or  may  be  taken  advantage  of  by  others,  is  a  question  upon 
which   the  courts  are  divided  in  opinion.     On  the  one  hand,  it  is 

1  Hutchinson  v.  First  Nat.  Bank  (Ind.),  *  See  §§  633-649 ;  Griffin  v.  N.  J.  Oil 
30  N.  E.  Rep.  952.  Co.  11  N.  J.  Eq.  49. 

2  Blake  v.   Koons,  71  Iowa,  3.56,  32  N.  ^  §  657;  Dolman  v.  Cook,  14  N.  J.  56. 
W.  Rep.  379  ;    Crosby  v.  Tanner,  40  Iowa,  ^  Campbell  v.  Babcock,  27  Wis  512. 
136.  ■^  Atwater  v.  Walker,  16  N.*J.  Eq.  42. 

3  §§  633-663;  De  Butts  v.  Bacon,  6  «  Mosier  y.  Norton,  83  111.  519. 
Cranch,  252  ;  Fanning  v.  Dunham,  5  Johns.  ^  Richards  v.  Worthley,  5  Wis.  73 ;  Mun- 
Ch.  122.  9  Am.  Dec.  283;  Cowles  v.  Wood-  ter  v.  Linn,  61  Ala.  492,  2  South.  L.  J.  205. 
ruff,  8  Conn.  35;  Piatt  v.  Robinson,  10  See  Baldwin  r.  Norton,  2  Conn.  161  ;  Whea- 
Wis.  128;  Fay  v.  Lovejoy,  20  Wis.  407;  ton  v.  Voorhis,  53  How.  Pr.  319;  Maher  y. 
Cox  i;.  Douglas,  12   Iowa,  1'85;  Outten  v.  Lanfrom,  86  111.  513. 

Grinstead,  4  J.  J.  Marsh.  608.  lo  Bard  v.  Fort,  3  Barb.  Ch.  632. 

405 


§  1493.]  FORECLOSURE   BY    EQUITABLE   SUIT. 

affirmed  that  any  person  who  has  become  interested  in  the  property 
subject  to  the  mortgage,  unless  he  has  bought  expressly  subject  to 
the  mortgage,  or  has  assumed  the  payment  of  it,  may  use  this  de- 
fence.^ Thus  a  second  or  other  subsequent  mortgagee  may  take 
this  defence.^ 

A  judgment  creditor  of  the  mortgagor  may  avail  himself  of  the 
defence  of  usur}^  to  the  extent  of  his  legal  lien.^  Creditors  for 
whose  benefit  land  has  been  convej'ed  in  trust  may  set  up  this  de- 
fence, though  the  trustees  hav^e  neglected  to  do  so.^  Although  a 
judgment  for  the  full  amount  of  the  note  and  an  order  for  sale  have 
already  been  entered,  subsequent  incumbrancers  may  before  final 
distribution,  by  answer  or  cross-petition,  set  up  the  defence  of  usury, 
and  have  the  proceeds,  to  the  amount  of  the  usurious  interest,  ap- 
plied to  the  payment  of  their  liens. ^ 

On  the  other  hand,  the  weight  of  authority  at  the  present  time 
favors  the  rule,  that  when  the  debtor  is  himself  willing  to  abide 
by  the  terms  of  his  contract,  no  one  else  can  interfere  and  set  up 
the  defence  of  usury .^  The  fact  that  a  usury  law  does  not  make 
void  usurious  contracts  has  been  held  to  be  decisive  in  favor  of 
this  view." 

In  litigation  after  a  judgment  of  foreclosure,  the  mortgagor  can- 
not plead  usury  in  the  mortgage  debt,  unless  the  judgment  be 
shown  to  have  been  procured  by  accident,  fraud,  or  mistake,  or  the 
usury  appears  on  the  face  of  the  judgment.'^ 

1  Lloyd  V.  Scott,  4  Pet.  205.  New  York:  Mitchell,  17  Kans.  355,  22  Am.  Rep.  287, 
Post  V.  Dart,  8  Paige,  639  ;  Brooks  v.  where  the  cases  are  reviewed  and  collected. 
Avery,  4  N.  Y.  225.  Ohio:  Union  Bank  r.  Kentucky:  Campbell  i;.  Johnston,  4  Dana, 
Bell,  14  Ohio  St.  200.  Mississippi :  M'Al-  177,179.  Michigan :  Farmers' &  Mechiiu- 
ister  V.  Jerman,  32  Miss.  142.  Maryland:  ics' Bank  i\  Kimmel,  1  Mich.  84.  Missouri: 
Banks  v.  McClellan,  24  Md.  62,  87  Am.  Ransom  v.  Hays,  39  Mo.  445.  Pennsyl- 
Dec.  594.  New  Hampshire:  Gunnison  v.  vania:  Miners'  Trust  Co.  Bank  v.  Rose- 
Gregg,  20  N.  H.  100.  New  Jersey:  Cum-  berry,  81  Pa.  St.  309;  Bounell's  Appeal 
mins  V.  Wire,  6  N.  J.  Eq.  73.  Nebraska:  (Pa.),  11  Atl.  Rep.  211  ;  Stay  ton  v.  Riddle, 
Doll  V.  Holleubeck,  19  Neb.  639.  114  Pa.  St.  464,  7  Atl.  Rep.  72;  Reap  v. 

2  Greene  v.  Tyler,  39  Pa.  St.  361.  Battle,  155  Pa.  St.  265,  26  Atl.  Rep.  439. 

3  Post  V.  Dart,  8  Paige,  639.  Under  an  earlier  statute  in  this  State  which 
^  Union  Bank  v.  Bell,  14  Ohio  St.  200.  made  void  a  usurious  contract,  it  was  held 
s  Brooke  r.  Morris,  2  Cin.  (Ohio)  528.  that  a  second  mortgagee  or  other  person 
^  Alabama:  Fielder f.Varner, 45  Ala. 429;  interested  in  the  equity  could  set  up  this 

Cain  V.  Gimrfn,  36  Ala.  168;  Speakmau  v.  defence.     Greene  v.  Tyler,  39  Pa.  St.  361 ; 

Oaks  (Ala.),  11  So.  Rep.  836.     Connecticut:  Bachdell's  Appeal,  56    Pa.   St.  386.     Ver- 

Loomis  V.  Eaton,  32  Conn.  550.     Illinois :  mont :  Austin  v.  Chittendeu,  33  Vt.  553. 

Adams  v.  Robertson,  37  111.  45.     Indiana :  "  Miners'  Trust  Co.  Bank  v.  Roseberry, 

Studabaker    v.    Marquardt,    55    Ind.    341.  81  Pa.  St.  309. 

Iowa:  Carmichael  y.  Bodfish, 32  Iowa,  418;  »  McLaws  v.  Moore,  83  Ga.  177,  9  S.  E. 

Huston  V.  Stringham,  21  Iowa,  36  ;  Powell  Rep.  615. 
V.  Hunt,  ]  1  Iowa,  430.     Kansas  :  Pritchett  v. 

406 


THE  ANSWER   AND   DEFENCE.  [§§  1494,  1495. 

1494.  Usury  cannot  be  set  up  as  a  defence  by  one  who  has 
purchased  land  subject  to  a  mortgage,  the  amount  of  which  is 
made  part  of  the  consideration  of  the  purchase,  whether  he  has 
assumed  the  payment  of  it  or  not.i  When  the  purchaser  sets  up 
this  defence,  the  complainant  cannot  overcome  it  by  proof  that  the 
lands  were  conveyed  to  him  subject  to  the  mortg;ige,  unless  his 
pleading  set  forth  the  execution  and  terms  of  the  conveyance.^ 
But  a  purchaser  who  has  bought  not  merely  the  equity  of  redemp- 
tion, but  the  whole  title,  paying  the  full  price,  with  no  deduction  on 
account  of  the  mortgage,  may  set  up  usui-y.^ 

A  mortgagor  who  has  conveyed  the  property  subject  to  a  mort- 
gage which  is  usurious,  and  has  afterwards  taken  a  reconveyance 
in  which  nothing  is  said  about  the  mortgage,  is  entitled  to  set 
up  the  defence  of  usury.*  It  was  suggested  that  if  there  had  been 
a  personal  liability  on  the  part  of  the  intermediate  purchaser  to 
pay  the  mortgage  debt,  it  might  not  be  in  his  power  to  release 
that  liability  by  such  a  reconveyance  without  the  consent  of  the 
mortgagee. 

1495.  Accordingly  a  mortgagor  may  be  estopped  from  set- 
ting up  the  defence  of  usury.  If  a  mortgage  should  be  made 
for  the  purpose  of  being  sold  at  a  discount  to  some  third  person, 
and  subsequently  assigned  at  a  considerable  discount  under  a  prom- 
ise of  the  mortgagor  that  he  would  make  an  affidavit  to  the  effect 
that  the  consideration  of  the  mortgage  was  the  full  amount  ex- 
pressed in  it,  and  that  there  was  no  defence  or  set-off,  he  would 
be  precluded  from  contradicting  his  affidavit  if  he  obtained  the 
money  upon  the  strength  of  it.-^  And  so  if  a  mortgagor,  upon  the 
assignment  of  a  mortgage  by  the  mortgagee,  signs  a  certificate 
stating  that  the  whole  principal  sum  and  interest  thereon  is  due 

1  §§  633,  644,  745 ;  Be  Wolf  v.  Johnson,  Huston  v.  Stringhara,  21  Iowa,  36.     MicM- 

10  Wheat.   367.     Vermout:  Reed   v.  East-  gan:    Sellers    v.   Botsford,    11    Mich.    59. 

man,  .50  Vt.  67.     New  York  :  Hartley  v.  Har-  Ohio  :  Cramer  v.  Lepper,  26  Ohio  St.  59,  20 

rison,  24  N.  Y.  170 ;  Morris  v.  Floyd,  5  Barb.  Am.  Rep.  756.     Maryland :  Hough  v.  Hor- 

130;  Sands  i'.  Church,  6  N.  Y.  347;  Mason  sey,  36  Md.  181,  11   Am.  Rep.  484.     New 

r.  Lord,40N.  Y.  476;  Post  r.  Dart,  8  Paige,  Jersey:    Conover  v.  Hobart,  24  N.  J.  Eq. 

639;  Hardin  r.  Hyde,  40  Barb.  435;  Free-  120. 

man  v.   Auld,   44   N.    Y.   50;   Merchants'         When  grantee's  title  is  in  hostility  to  the 

Ex.  Nat.  Bank  v.  Commercial  Warehouse  mortgage,   see    Chamberlain    v.   Dempsey, 

Co.  49  N.  Y.  635,  643,  note.     Wisconsin:  9  Bosw.  212. 

Thomas  v.  Mitchell,  27  Wis.  414.     Indiana :        2  Hetfield  v.  Newton,  3  Sandf.  Ch.  564. 
Stein  V.   Indianapolis,  &c.    Asso.    18   Ind.        ^  Lilienthal   v.  Champion,  58    Ga.  158; 

237,  81  Am.  Dec.  353  ;  Butler  v.  Myer,  17  Maher  r.  Lanfrom,  86  111.  513. 
Ind.  77;  Wright  v.  Bundy,  11   Ind.  398;        *  Knickerbocker  Life  Ins.  Co.  r.  Nelson, 

Price  V.  Pollock,  47  Ind.  362,  366,  per  Dow-  13  Hun,  321,  affirmed  7  Abb.  N.  C.  170. 
ney,  J.     Iowa:  Perry  v.  Kearns,  13  Iowa,        ^  j^gal   Estate   Trust   Co.  v.   Rader,   53 

174;  Greither  v.  Alexander,  15  Iowa,  470;  How.  Pr.  231. 

407 


§  149G.]         FORECLOSURE  BY  EQUITABLE  SUIT. 

without  any  offset  or  legal  or  equitable  defence,  the  mortgagor  is 
estopped  from  setting  up  usury .^  But  where  part  of  the  money  is 
paid  before  the  giving  of  the  affidavit,  the  creditor  does  not,  in  pay- 
ing it,  act  upon  the  statements  contained  in  the  affidavit,  and  there- 
fore the  mortgagor  is  not  estopped  from  asserting  the  usurious  na- 
ture of  the  transaction  so  far  as  the  amount  then  paid  is  concerned. 
That  the  creditor  believes  that  an  estoppel  will  be  made  in  the 
future  avails  nothing.^ 

1496.  Set-off.  —  Upon  a  bill  to  foreclose,  the  mortgagor  is  al- 
lowed to  set  off  a  debt  due  to  him  from  the  complainant,  not  only 
in  cases  where  this  would  be  allowed  in  actions  at  law,^  but  also 
in  cases  of  peculiar  equity  not  strictly  within  the  rules  of  law;  ^  as, 
for  instance,  in  an  action  against  a  mortgagor  and  his  surety  on  a 
bond  secured  by  the  mortgage,  a  debt  due  the  mortgagor  from 
the  plaintiff  may  be  allowed  in  set-off.  The  joint  bond  in  such 
case  is  nothing  more  than  a  security  for  the  separate  debt  of  the 
mortgagor.  The  mortgage  is  executed  by  him  alone,  and  is  a  lien 
upon  his  land,  and  his  interests  alone  are  affected  by  the  foreclos- 
ure. That  a  joint  judgment  might  be  rendered  on  the  bond  for 
any  deficiency  does  not  exclude  the  allowance  of  the  counter-claim.^ 
The  defendant  cannot  make  a  counter-claim,  and  demand  judgment 
upon  it,  unless  the  plaintiff  is  personally  liable  to  him.  His  coun- 
ter-claim must  in  some  way  go  to  qualify  or  defeat  the  plaintiff's 
demand.^  The  mortgagor  cannot  set  off  a  demand  he  has  against 
a  prior  holder  of  the  mortgage  and  note,  unless  the  demand  is 
founded  on  an  agreement  supported  by  a  new  consideration,  in  pur- 
suance of  which  such  holder  procured  the  mortgage  note,  or  there 

1  Smyth  V.  Lombardo,  15  Hun,  415.  him  against  it,  in  release  of  his  niorfgage 

2  Payne  v.  Burnham,  62  N.  Y.  69.  debt.     Hennighausen  v.  Tischer,  50  Md.  583. 

^  New  York :  National  F.  Ins.  Co.  v.  *  Goodwin  v.  Keney,  49  Conn.  56.3 ;  Cur- 
McKay,  21  N.  Y.  191,  196;  Irving  v.  De  rie  ?\  Cowles,  6  Bosw.  452 ;  Hiclisville  &  C. 
Kay,  10  Paige,  319;  Chapman  v.  Robert-  S.  B.  R.  Co.  y.  Long  Island  II.  Co.  48  Barb, 
son,  6  Paige,  627,  31  Am.  Dec.  264  ;  Holden  355.  An  answer  iu  foreclosure  proceedings 
V.  Gilbert,  7  Paige,  208;  Hunt  v.  Chapman,  which  alleges  that  the  mortgage  sought  to 
51  N.  Y.  555.  Michigan:  Hess  v.  Final,  32  be  foreclosed  is  invalid,  and  that  defendant 
Mich.  515;  Lockwood  w.  Beckwith,  6  Mich,  claims  title  under  a  subsequent  mortgage, 
168.  Alabama:  Gafford  v.  Proskauer,  59  does  not  set  up  a  counter-claim,  but  an 
Ala.  264;  Knight  v.  Drane,  77  Ala.  371 ;  equitable  defence.  Caryl  v.  Williams,  7 
Conner  v.  Smith,  88  Ala.  300,  7  So.  Rep.  Lans.  416. 

150.  6  Ex  parte  Hanson,  12  Ves.  346;  Bath- 
In  earlier  cases  it  was  held  that  the  de-  gate  o.  Haskin,  59  N.  Y.  533 ;  Holbrook  v. 

fendant   could  not  set  off  a   demand,  but  Am.  F.  Ins.  Co.  6  Paige,  220. 

must    resort    to    a   cross  -  bill.     Troup    v.  ^  Lathrop    v.   Godfrey,    3    Hun,    739,   6 

Haight,  Hopk.  239.  Thomp.  &  C.  96  ;  National  F.  lus.  Co.  v. 

A  shareholder  and  mortgagor  in  a  build-  McKay,  21  N.  Y.  191,  196  ;  Mills  v.  Carrier, 

ing  association  may  set  off  claims  held  by  30  S.  C.  617,  9  S.  E.  Rep.  350. 

408 


THE   ANSWER   AND  DEFENCE.  [§  1497. 

is  a  special  equity  wliich  withdraws  the  demand  from  the  operation 
of  the  general  rnle.^  The  demand  must  be  of  such  a  nature  as  will 
sustain  an  action  by  the  defendant  against  the  plaintiff.^ 

In  an  action  to  foreclose  a  mortgage  for  purchase-money  of  land, 
in  which  a  personal  judgment  is  demanded  for  any  deficiency  of  the 
proceeds  of  sale  to  pay  the  mortgage,  interest,  and  costs,  a  breach 
of  the  covenant  of  seisin  in  plaintiff's  deed  of  the  premises  to  de- 
fendant is  a  proper  counter-claim."^  The  defendant's  claim  in  such 
case  arises  out  of  a  contract,  and  was  a  cause  of  action  existing  at 
the  commencement  of  the  foreclosure  suit.** 

To  entitle  the  defendant  to  set  off  a  debt,  it  must  have  been 
due  to  him  from  the  plaintiff  at  the  time  the  foreclosure  suit  was 
commenced.^  Generally  a  claim  for  unliquidated  damages  cannot 
be  set  off  when  the  defendant  has  an  adequate  remedy  at  law  ;  ^ 
but  under  the  codes  of  practice  in  some  States  such  a  claim  may 
be  allowed. ^  Matters  sounding  in  toit  cannot  be  pleaded  by  way  of 
set-off  against  a  mortgage  debt.^ 

An  overpayment  by  mistake  upon  the  mortgage  may  be  set  up 
by  tiie  defendant,  who  may  have  judgment  for  the  amount  so  over- 
paid.^ 

An  answer  that  the  mortgage  was  given  by  one  partner  to  an- 
other to  raise  money  for  partnership  purposes;  that,  although  the 
partnership  business  had  ceased,  the  parties  were  still  partners  ;  that, 
under  the  partnership  agreement  and  transactions,  the  plaintiff  is 
indebted  to  the  defendant ;  and  that  there  had  been  no  settlement 
of  the    partnership    affairs,  —  is    sufficient  to    entitle  defendant  to 

1  Brown  v.  Scott,  87  Ala.  453,  6  So.  Rep.  no  breach  of  covenant  set  up  as  a  counter- 

384.  claim  to  reduce  the  amount  due  in  equity 

-  Ward  V.  Comegys,  2  How.  Pr.  (N.  S.)  upon  the  bond.     The  late  case  of  Kirtz  v. 

428;  Vassear  v.  Livingston,  13  N.  Y.  248  ;  Peck,  113  N.  Y.  222,  21  N.  E.  Rep.  130,  is 

Cragin  v.  Lovell,  88  N.  Y.  2.58 ;  McKensie  to  the  same  effect. 

V.  Farrell,  4  Bosw.  192.     A  claim  may  be  a  ^  Holden  v.  Gilbert,  7  Paifre,  627;   Knapp 

valid  set-off.  v.  Burnham,  11  Paige,  330;  Thompson  v. 

8  Merritt  r,  Gouley,  12  N.  Y.  Supp.  132.  Ellsworth,    1    Barb.    Ch.   624;   Conner    v. 

*  Hunt  V.  Chapman,  51  N.  Y.  555 ;  Bath-  Smith,  88  Ala.  300,  7  So.  Rep.  150. 

gate  w.  Haskin,  59  N.  Y.  533;  Seligman  v.  ^  Gafford   v.   Proskauer,  59    Ala.   264; 

Dudley,  14  Hun,  186.     It  is  true  that  it  has  Cleaver  v.  Mathews,  83  Va.  801,  3  S.  E. 

been  held  that  a  breach  of  the  covenant  of  a  Rep.  439. 

deed  without  eviction  cannot  be  pleaded  in  "  Hattier    v.   Etinaud,    2    Dcsau.    570  ; 

bar  of  a  suit  to  foreclose  a  purchase-money  Schubart  v.  Harteau,  34  Barn.  447  ;  Lignot 

mortgage.     In  McConihe  v.  Fales,  107  N.  Y.  v.  Redding,  4  E.T).  Smith,  285. 

404,  14  N.  E.  Rep.  285,  it  is  held  that  a  fail-  "  Rogers  v.  Watson,  81  Tex.  400,  17  S. 

ure  of  title  is  no  defence  to  a  foreclosure  W.  Rep.  29 ;  People  v.  Dennison,  84  N.  Y. 

suit  without  an  allegation  of  fraud  in  sale  272  ;  Bell  v.  Lesbini,  66  How.  Pr.  385. 

or  an  eviction.     But  in  that  case  there  was  ^  Leach  v.  Vining,  18  N.  Y.  Suup.  822. 

409 


§§  1497,  1498.]       FORECLOSURE   BY   EQUITABLE    SUIT. 

an  accounting,  the  indebtedness  as  alleged  being  a  proper  matter 
of  defence.^ 

1497.  If  the  suit  to  foreclose  be  brought  in  the  name  of  a 
person  other  than  the  real  owner  of  the  mortgage  note,  the  de- 
fendant may  have  the  benefit  of  any  defence  or  set-off  he  has 
against  the  real  owner.  No  other  defence  can  be  set  np  on  the 
ground  that  the  holder  of  the  mortgage  security  is  prosecuting  the 
foreclosure  for  the  benefit  of  another  person.^ 

1498.  In  New  Jersey,  how^ever,  a  foreclosure  suit  is  regarded 
as  so  far  a  proceeding  in  rem  as  to  exclude  the  defence  of  set- 
off. Nothing  can  be  set  up  in  such  suit,  by  way  of  satisfaction  of 
the  mortgage,  in  whole  or  in  part,  except  payment.  There  must 
either  have  been  a  direct  payment  of  part  of  the  debt,  or  an  agree- 
ment that  the  sum  proposed  to  be  offset  should  be  received  and 
credited  as  payment ;  ^  because,  if  there  was  no  actual  appropriation 
by  the  debtor  at  or  before  the  time  of  payment,  the  creditor  may 
apply  the  payment  to  any  other  claim  he  has,  at  his  discretion.* 
An  independent  claim  of  the  mortgagor  cannot  be  set  off.^  A  pay- 
ment on  account  of  the  mortgage  debt  is  not  a  cause  of  action, 
which  must  be  pleaded  as  a  counter-claim  to  entitle  the  defendant 
to  prove  it.  An  answer  of  payment  in  full  or  in  part  is  sufficient.^ 
A  mortgagor  may  avail  himself  by  answer  and  set  off  of  rents  re- 
ceived by  the  mortgagee  in  possession.'^ 

A  mortgage  to  secure  future  advances  is  valid  only  to  the  amovmt 
of  the  advances  actually  made  ;  but  the  mortgagee's  failure  to  com- 
plete the  contemplated  advances  affords  ground  for  only  nominal 
damages  by  way  of  set-off ;  ^  unless,  perhaps,  there  was  an  express 
obligation  to  make  them.  Under  a  covenant  by  the  mortgagee  to 
make  partial  releases,  damages  sustained  by  his  refusal  to  release 
may  be  a  matter  of  equitable  offset  to  his  claim  upon  the  mort- 
gage.9 

1  Gassert   v.   Black,    11    Mont.    185,    27  himself  of   all   just  set-offs  and   defences 

Pac.  Eep.  791.  which  would  have  been  allowed  if  his  as- 

-  Spear  r.    Hadden,  31    Mich.    26.5,  La-  signor  had  brought  the  action.    R.  S.  1877, 

throp  V.  Godfrey,   3   Hun,  729 ;   Chase  v.  p.  708,  §  31  ;  Woodruff  v.  Morristown  Inst. 

Brown,  32  Mich.  225.  for  Savings,  34  N.  J.  Eq.  174. 

=5  Parker    v.    Hartt,   32   N.    J.   Eq.    235;  *  Bird  v.  Davis,  14  N.  J.  Eq.  467. 

Vanatta  v.  N.  J.  Mut.  L.  Ins.  Co.  31  N.  J.  ^  white  v.  Williams,  3  N.  J.  Eq.  376  ; 

Eq.  17;  Williamson  v.  Fox,  30  N.  J.  Eq.  Barnes  v.  Moore,  63  Ga.  164. 

488  ;  Dudley  v.  Bergen,  23  N.  J.  Eq.  397  ;  «  Hendrix  v.  Gore,  8  Oreg.  406. 

Dolman  r.  Cook,  14  N.  J.  Eq.  56;   Coiiover  ^  Krueger  i'.   Ferry,  41   N.  J.  Eq.  432, 

V.  Scaly,  45  N.   J.  Eq.  589,   19   Atl.  Rep.  affirmed  Ferry  v.  Krueger,  43  N.   J.  Eq. 

616;  Conaway  v.    Carpenter,  58  Ind.  477.  295,  14  Atl.  Rep.  811. 

It  is  provided  by  statute  in  New  Jersey  ^  Dart  ;;.  McAdani,  27  Barb.  187. 

that  an  assignee  of  a  mortgage  may  avail  ^  Warner  v.  Gouverneur,  1  Barb.  36. 

410 


THE   ANSWER   AND   DEFENCE.  [§§  1499,  1500. 

1499.  Illegal  interest  previously  paid  upon  the  mortgage  or  in- 
cluded in  it  niay  be  offset  by  the  mortgagor,^  as  also  may  be  a  pay- 
ment of  a  bonus  in  addition  to  the  lawful  interest  paid  to  procure 
an  extension  of  time  within  which  to  pay  the  debt.^  But  one  who 
has  purchased  subject  to  a  mortgage,  or  has  assumed  its  payment,  is 
not  entitled  to  the  benefit  of  usurious  interest  paid  by  the  mort- 
o-afjor.^ 

1500.  To  a  foreclosure  suit  on  a  purchase-money  mortgage, 
it  is  no  defence  that  there  is  an  outstanding  paramount  title  or 
incumbrance  when  there  has  been  no  actual  eviction.  The  mort- 
gagor is  left  to  his  remedy  on  the  covenant.^  A  defence  to  the 
foreclosure  of  a  purchase-money  mortgage,  alleged  to  have  existed 
at  the  time  of  its  inception,  can  only  arise  wdien  fraud  has  been  prac- 
tised by  the  mortgagee  in  procuring  its  execution,  or  there  has  been 
a  failure  of  consideration.^ 

If,  however,  the  mortgagor  has  been  evicted,  or,  according  to 
some  authorities,  if  an  ejectment  suit  has  been  commenced  against 
him  on  such  outstanding  title,  the  court  will  interfere.®  In  the 
latter  case,  proceedings  upon  the  mortgage,  even  if  it  be  a  power 
of  sale  mortgage  not  requiring  a  suit,  will  be  enjoined  until  the 
action  of  ejectment  is  determined.''  Although  there  is  an  objec- 
tion to  undertaking  a  settlement  of  unliquidated  damages  in  a  court 
of  equity,  yet  this  may  be  done  either  by  directing  an  issue,  or  by 
a  reference  to  a  master  to  ascertain  the  damages,  before  entering  a 
decree  upon  the  mortgage ;  or  the  court  may  avoid  this  objection 

1  §  648  ;  Pond  v.  Causdell,  23  N.  J.  Eq.  49  N.  W.  Eep.  40  ;  Gayle  v.  Fattle,  14  Md. 

181;    Harbison  v.  Houghton,  41    III.  522;  69;    Kinports  v.  Rawson,  29  W.  Va.  487, 

Ward  V.   Sharp,    115    Vt.  15;    Havens  v.  2  S.  E.  Kep.  85 ;  Emmons  y.  Gille  (Kans.) 

Joues,  45  Mich.  253,  7  N.  W.  Rep.  818.  32  Pac.  Rep.  916,  quoting  text. 

-  Real  Estate  Trust  Co.  v.  Keech,  7  Hun,  &  McConihe  v.  Fales,  107  N.  Y.  404,  14 

253  ;  McGregor  v.  Mueller,  1   Cin.  (Ohio)  N.  E.  Rep.  285,  per  Ruger,  C.  J. 

486.  G  Price  v.   Lawton,  27   N.    J.    Eq.    325; 

«  Speakman  u.  Oaks  (Ala).,  11   So.  Rep.  Glenn  V.Whipple,   14  N.  J.  Eq.  50;    Van 

836.  Waggoner  v.   McEwen,   2  N.  J.  Eq.  412 

■*  Peters  v.  Bowman,  98  U.  S.  56  ;  Mc-  Shannon    v.   Marselis,    1    N.   J.   Eq.   413 

Conihe  v.  Fales,  107  N.  Y.  404,  14  N.  E.  Withers  v.   Morrell,  3    Edw.  N.    Y.    560 

Rep.  285  ;  Abbott  v.  Allen,   2  Johns.   Ch.  Ryerson  v.  Willis,  81  N.  Y.  277  ;  Taylor  v. 

519,  7  Am.    Dec.   554;    York  u.  Allen,  30  Whitmore,  35  Mich.   97.     Whether    there 

N.  Y.  104  ;  Lessly  r.  Bowie,  27  S.  C.  193,  3  can  be  any  defence  by  way  of  recoupment, 

S.    E.   Rep.    199;  Alden  v.  Pryal,  60  Gal.  before  eviction,  was  questioned  in  Church 

215;  Randall  t-.  Bourgardez,  23   Fla.  264,  2  v,  Fisher,  40  Ind.  145. 

So.  Rep.  310;  Adams  y.  Fry,  29  Fia.  318,  ''  Johnson  v.    Gere,   2   Johns.   Ch.    546; 

10  So.  Rep.  559,  quoting  text;  McLelland  Edwards  v.   Bodine,  26   Wend.  109.     See, 

I'.  Cook  (Mich.),  54  N.  W.  Rep.  298  ;  Munro  however,  to  the  contrary.  Peat  v.  Gilchrist, 

V.  Long,  35  S.  C.  354,  615,  14  S.  E.  Rep.  3  Sandf.  118,  and  cases  cited. 


824;    Pfirrman   v.   Wattles,  86  Mich.  254, 


411 


§§  1501,  1502.]         FORECLOSURE   BY    EQUITABLE   SUIT. 

by  staying  the  foreclosure  suit  until  tlie  damages  arising  from  the 
failure  of  title  are  ascertained  in  a  suit  at  law.^ 

Tlie  same  rule  applies  to  a  bill  to  enforce  a  lien  for  purcliase- 
money.  "  The  rule,"  Siiys  Mr.  Justice  Swayne  of  the  Supreme 
Court,2  u  ig  founded  in  reason  and  justice.  A  different  result  would 
subvert  the  contract  of  the  parties,  and  substitute  for  it  one  which 
they  did  not  make.  In  such  cases  the  vendor  by  his  covenants,  if 
there  be  such,  agrees  upon  them,  and  not  otherwise,  to  be  respon- 
sible for  defects  of  title.  If  there  are  no  covenants,  he  assumes  no 
responsibility,  and  the  other  party  takes  the  risk.  The  vendee 
agrees  to  pay  according  to  his  contract,  and  secures  payment  by 
giving  a  lien  upon  the  property.  Here  it  is  neither  expressed  nor 
implied  that  he  may  refuse  to  pay  and  remain  in  possession  of  the 
premises ;  nor  that  the  vendor  shall  be  liable  otherwise  than  accord- 
ing to  his  conti'act." 

1501.  This  defence  is  founded  on  the  covenants.  An  answer 
to  a  suit  to  foreclose  a  mortgage  given  for  the  purchase-money, 
which  alleges  a  failure  of  title,  must,  in  the  absence  of  any  allega- 
tion of  fraud,  either  set  out  the  deed  or  the  covenants  contained  in 
it; 3  because  the  defence  is  founded  on  the  covenants  of  warranty 
or  seisin.  Therefore,  where  the  deed  contains  no  such  covenants, 
as  in  the  case  of  a  deed  made  by  executors,  containing  no  cove- 
nants except  against  the  acts  of  themselves  and  their  testator,  it  is 
no  defence  that  a  portion  of  the  property  was  covered  by  an  incum- 
brance not  specified  in  the  covenant.*  The  existence  of  a  lease 
upon  part  of  the  premises  is  no  defence  to  a  suit  to  foreclose  the 
purchaser's  mortgage,  if  it  is  no  breach  of  any  of  the  covenants  of 
his  deed,  and  his  grantor  did  not  fraudulently  mislead  him.^ 

No  covenant  will  be  implied  in  such  a  mortgage.^ 

1502.  If  the  mortgagor  is  in  undisturbed  possession,  and  no 
suit  is  pending  for  the  possession  of  the  property  by  an  adverse 
claimant,  the  courts  will  not  generally  interfere  to  restrain  the  ven- 
dor from  foreclosing  a  mortgage  given  for  the  price  of  land  con- 
veyed with  full  covenants  of  warranty,  on  account  of  any  alleged 
defects  in  the  title  not  amounting  to  a  total  failure  of  consideration, 
unless  there  was  fraud  in  the  sale.'     Nor  will  they  allow  a  counter- 

1  Coster  V.  Monroe  Manuf.  Co.  2  N.  J.  *  Niles  v.  Harmon,  80  IlL  396  ;  Barry  v. 
Eq.  467;  Couse  i;.  Boyles,  4  N.J.  Eq.  212,  Guild,  126  111.  439,  18  N.  E.  Kep.  T.-JQ  ; 
38  Am.  Dec.  514.  Sandford  v.  Travers,  40  N.  Y.  140. 

2  Peters    v.    Bowman,    98    U.    S.   56,    11  ^  Sandford  r.  Travers,  7  Bosw.  498. 
Chicago  L.  N.  118,  7  Wash.  L.  R.  156.  6  Brown  v.  Phillips,  40  Mich.  264. 

3  Church  V.  Fisher,  46  Ind.  145.  And  "  New  York:  Leggett  v.  M'Carty,  3 
see  Davis  v.  Bean,  114  Mass.  358,  360.  Edw.  124  ;  Withers  v.  Morrell,  3  Edw.  560 ; 

412 


THE   ANSWER   AND   DEFENCE. 


[§  1502. 


claim  on  account  of  an  outstanding  incumbrance,  unless  the  mort- 
gagor has  paid  such  incumbrance  in  whole  or  in  part,  or  has  lost  the 
land  in  whole  or  in  part  under  such  incumbrance.^  Before  this 
defence  will  avail,  there  must  be  either  an  eviction  or  something 
tantamount  to  it.^ 

It  is  not  always  necessary  that  the  purchaser  should  show  that 
he  has  been  dispossessed   to   establish  eviction  ;   it  may  be   estab- 
lished by  proof  that  at  the  time  of  his  purchase  the  lands  were  in 
the  actual  possession  of  one  claiming  under  a  title  hostile  to  his 
vendor,  by  reason  of  which  he  had  not  and  could  not  obtain  posses- 
sion.2     Neither  is  it  necessary  that  he  should  resist  the  claim  under 
the  paramount  title,  or  even  await  eviction  by  legal  process.     He 
may  voluntarily  surrender  possession  ;  but  then   must  stand  ready 
to  show  that  the  title  to  which  he  surrendered  was  paramount,  and 
was  covered  by  his  grantor's  covenants  of  warranty.^     If  a  judg- 
ment for  the  possession  of  the  property  be  recovered  against  him, 
his  delivery  of  possession,  without  awaiting  ex])ulsion  by  legal  pro- 
Edwards  V.  Bodine,  26  Wend.  109;  Tall-    Rich.  Eq.  .321,  350;   Lessly  v.  Bowie,  27 
madge  v.  Wallis,  25  Wend.  107;  Dswison     S.  C.  193,  .3  S.  E.  Rep.  199. 
V.  De  Freest,  3  Sandf.  Ch.  456  ;  Banks  v.        Mr.  Justice  Nelson,  in  Fatten  v.  Taylor, 
Walker,  3  Barb.  Ch.  438;  York  y.  Allen,     7  How.  132,  159,  referring  to  several  au- 
30  N.  Y.  104;    Curtiss  v.  Bush,  39  Barb,     thorities  there  cited,  said:    "These   cases 
661;    Sandford   v.  Travers,  7  Bosw.  498;     will  show  that  a  purchaser,  in  the  undis- 
Bunipus  V.  Flatner,  1  Johns.  Ch.  213,  218;    turbed  po.ssession  of  the  land,  will  not  be 
Abbott  V.  Allen,  2  Johns.  Ch.  519,  7  Am.    relieved  against  the  payment  of   the  pur- 
Dec.  554 ;  Chesterman  v.  Gardner,  5  Johns,    chase-money  on  the  mere  ground  of  defect 
Ch.  29,  9  Am.  Dec.  265 ;  Denston  v.  Mor-    of  title,  there  being  no  fraud  or  misrepre- 
ris,  2  Edw.  37  ;  Burke  r.  Nichols,  21  How.    sentation ;    and   that,  in   such    a   case,   he 
Fr.  459,  34  Barb.  430,  2  Keyes,  670 ;  Miller    must    seek    his    remedy    at    law     on    the 
r.  Avery,  2  Barb.  Ch.  582;    Farkinsou  v.    covenants  in  his  deed;    that  if  there  is  no 
Jacobson,    13    Hun,    317;     Parkinson    v.    fraud,  and  no  covenants  to  secure  the  title, 
Sherman,  74  N.  Y.  88,  30  Am.  Rep.  268  ;    he  is  without  remedy,  as  the  vendor,  sell- 
Ryerson  v.  Willis,  81  N.  Y.  277.     New  Jer-    ing  in  good  faith,  is  not  responsible  for  the 
say :    Hile  v.  Davison,  20  N.  J.  Eq.  228  ;    goodness  of  his  title  beyond  the  extent  of 
Hulfish  V.  O'Brien,  20  N.  J.  Eq.  230;  Shan-    his  covenants  in  the  deed."     This  doctrine 
non  V.  Marselis,  1  N.J.  Eq.  413,  426;   Van    is  affirmed  in  Noonan  v.  Lee,  2  Black,  499, 
Waggoner  v.   McEwen,  2  N.  J.  Eq.  412;    508;    Peters  r.  Bowman,  98  U.  S.  56,  11 
Glenn  v.  Whipple,  12  N.  J.  Eq.  50;  Miller    Chicago  L.  N.  118  ;  and  is  sustained  also 
1-.    Gregory,  16  N.  J.  Eq.  274.     Missouri:    in   Hill  ;;.   Butler,  6  Ohio  St.  207,  where 
Key  V.  Jennings,  66  Mo.  356,  368.     Mich-    numerous  cases  are  cited.     See  §  1355,  near 
igan:  Smith  v.  Fiting,  27  Mich.  148;  Mc- 
Lelland   i'.   Cook   (Mich.),  54  N.   W.   Rep. 
298.      Vermont :    Darling   r.    Osborne,   51 


end. 


1  Evans  v.  McLucas,  12  S.  C.  56. 

2  Flatt  r.   Gilchrist,  3    Sandf.    118. 


In 


Vt.  148.     Georgia:  Byrd  i'.  Turpin,  62  Ga.  this  case  the  earlier  cases  are  reviewed  at 

591.      Indiana:    Stahl  v.  Hammontree,  72  length. 

Ind.   103;    jNIahoney   v.    Bobbins,   49    Ind.        3  withers  v.  Powers,  2  Sanilf.  Ch.  350. 
147;   Douglass  v.  Thomas,   103  Ind.    187,        4  York  u.  Allen,  30  N.  Y.  104 ;  Cowdrey 

188.     South  Carolina :  Childs  v.  Alexander,  v.  Coit,  44  N.  Y.  382,  392,  4  Am.  Rep.  690, 

22  S.  C.  169,  185;  Whitworth  v.  Stuckey,  per  Gray,  Com'r ;  Simers  u.  Saltus,  3  Den. 

1  Rich.  Eq.  404,  410;  Van  Lew  v.  Parr,  2  214. 

413 


§§  1503,  1504.]        FORECLOSURE    BY    EQUITABLE   SUIT. 

cess,  is  an  eviction.^  The  mortgagor  may  safely  pay  the  adverse 
claimant  with  the  consent  of  his  mortgagee  that  the  amount  may 
be  applied  in  reduction  of  the  mortgage  debt,  if  he  obtain  sufficient 
evidence  of  such  consent.^ 

The  defence  of  eviction  cannot  be  set  np  by  one  who  has 
merely  purchased  the  equity  of  redemption  subject  to  the  mort- 
gage, without  assuming  any  personal  liability  for  it,  or  against 
whom  no  personal  claim  is  made,  merely  upon  the  ground  that  he 
is  the  assignee  of  the  plaintiff's  covenants.^  Eviction  is  no  de- 
fence when  no  right  or  title  to  the  part  of  the  land  from  which 
the  mortgagor  is  evicted  was  conveyed  to  him  ;  as  where  a  build- 
ing and  fence,  not  specified  in  the  deed,  encroached  on  an  adjoining 
lot.* 

1503.  Cases  exceptional  to  general  rule.  —  The  rule  generally 
is  that  above  stated,  that  the  entire  want  of  title  in  the  vendor,  or 
the  partial  failure  of  it,  is  no  defence  to  the  action,  unless  fraud  be 
shown  or  the  mortgagor  has  been  evicted.^  Yet  it  has  been  held 
by  several  courts  that  the  mortgagor  may  defend  by  a  recoupment 
or  offset  of  damages  for  a  breach  of  the  covenants  in  the  deed  to 
him,  to  the  extent  of  the  damages  sustained,  if  these  are  deter- 
mined so  that  they  may  be  deducted,  whether  the  failure  of  title  be 
complete  or  partial.^  A  breach  of  covenant  in  the  vendor's  deed  is 
a  defence,  where  it  is  shown  that  the  vendor  is  unable  to  respond 
to  the  damages  occasioned  by  the  breach.''  When  a  remedy  upon  the 
covenants  would  be  ineffectual,  as,  for  instance,  when  the  mortga- 
gee is  insolvent,  the  defendant,  in  a  suit  upon  the  note  or  mort- 
gage, may  set  up  the  damages  on  the  covenants.^ 

1504.  When  the  covenant  is  broken  at  the  time  the  suit  is 
brought  to  recover  the  purchase-money,  and  the  amount  claimed 
under  it  is  certain,  the  purchaser  is  entitled  to  detain  the  purchase- 

1  Dyett  V.  Pendleton,  8  Cow.  727.  v.  Blackmore,  20  Ind.  419;  Buell  v.  Tate,  7 

2  Han  V.  Carpenter,  36  Mich.  402.  After  Blackf.  55  ;  Hume  v.  Dessar.  29  Ind.  112; 
the  death  of  the  mortgagee,  there  may  be  Hubbard  v.  Chuppel,  14  Ind.  601  ;  Hanna 
difficulty  in  proving  his  oral  admissions.  v.  Shield.s,  34  Ind.  84  ;  Plowman  v.  Shidler, 

3  National  F.  Ins.  Co.  v.  McKay,  21  N.  36  Ind.  484;  Coul<lin  v.  Bowman,  7  Ind. 
Y.  191  ;  Van  Houten  v.  McCarty,  4  N.  J.  533;  Church  v.  Fisher,  40  lud.  145. 

Eq.  141  ;  Brou  v.  Becnel,  20  La.  Ann.  254.  ^  poy  v.  Downie,  14  Fla.  544  ;  Lowry  v. 

And   see   Sandford   v.   Travers,  40   N.  Y.  Hurd,  7  Minn.  356;  Wallver  y.  Wilson,  13 

140.  Wis.  522;  Hall  v.  Gale,  14  Wis.  54;  Men- 

*  Burke  v.   Nichols,   1    Abb.  App.  Dec.  deuhall  i'.' Stcckel,  47  Md.  453;  Scantlin  w. 

260,  2  Keyes,  670.  Allison,  12  Kans.  85  ;   Chambers  v.  Cox,  23 

s  Wisconsin  :    Booth  i-.    Ryan,  31   Wis.  Kans.  393  ;  Kelly  v.  Kershaw,  6  Utah,  239, 

45.    Arkansas:  Robards  v.  Cooper,  16  Ark.  14  Pac.  Rep.  804. 

288.     Indiana  :  Conwell  i'.  Clifford,  45  Ind.  "  McLemore  v.  Mabson,  20  Ala.  137. 

392;  Rosers  v.  Place,  29  Ind.  577  ;  Jordan  ^  Knapp  v.  Lee,  3  Pick.  452. 

414 


THE  ANSWER   AND   DEFENCE.  [§  1504. 

money  to  the  extent  to  which  he  would  at  that  time  be  entitled  to 
recover  damages  upon  the  covenant,  in  order  to  avoid  circuity  of 
action.  It  is  therefore  held  that  a  breach  of  the  covenant  of  seisin 
in  the  vendor's  deed  may  be  set  up  as  a  defence  to  an  action  for  the 
foreclosure  of  a  mortgage  given  for  the  purchase-money,  altliough 
a  breach  of  the  covenant  of  warranty  may  not.^  A  total  failure 
of  title  is  a  total  failure  of  consideration.  The  obligation  of  the 
mortgagor  is  not  made  for  a  covenant  of  the  mortgagee,  but  for 
the  land  ;  and  if  the  land  fails  to  pass,  the  promise  of  the  mortga- 
gor is  a  mere  nudum  pactum.  The  damages  in  an  action  on  the 
covenant  would  be  the  same  as  the  consideration  for  the  promise  ; 
and  it  is  just  that  the  mortgagor  should  be  allowed  to  show  a  total 
failure  of  consideration  instead  of  being  compelled  to  seek  his  rem- 
edy on  the  covenants.^ 

A  covenant  against  incumbrances  is  broken  at  the  time  of  the 
conversance  if  a  third  person  then  had  an  interest  in  or  lien  upon 
the  land  granted  which  diminished  the  value  of  the  absolute  in- 
terest in  the  same,  while  at  the  same  time  the  fee  passed  by  the 
deed.  If  an  incumbrance  upon  land  conveyed  to  the  grantee  by 
deed  containing  such  a  covenant  be  fixed  and  capable  of  deduction 
out  of  the  grantee's  purchase-money  mortgage,  a  suit  upon  such 
mortgage  is  by  some  courts  allowed  to  proceed  to  judgment,  when 
the  amount  of  the  incumbrance  may  be  offset  against  the  amount 
of  the  mortgage  ;  ^  and  if  a  sale  be  had,  the  proceeds  will  be  ap- 
plied in  the  first  place  to  discharge  the  incumbrance,  and  the  amount 
so  applied  deducted  from  the  mortgage  debt.*  But  in  other  courts, 
and  more  generally,  it  is  held  that  unless  the  defendant  has  been  at 
cost  to  extinguish  the  incumbrance,  or  has  suffered  through  its  en- 
forcement, he  can  be  allowed  only  nominal  damages. ° 

1  Latham  v.  McCann,  2  Neb.  276.     The  chose,  for  some   reason,   to  accept  a  deed 

court  say :  "  The  parties  in  this  case,  as  in  with  covenants  of  warrant}'.       He   cannot 

every   other  case,   must  be  bound    by  the  now  come  forward  and  say  he  will, pay  his 

bargain  tliey    have   chosen    to   enter   into,  note  and  moitgaj^e  upon  certain  alleged  de- 

The  grantee  might  have  demanded  a  cove-  fects  being  remedied.'' 

nant   of  seisin,  —  the   assurance    that   the  '^  Kice  y.  Goddard,  14  Pick.  29.3  ;  Wilber 

grantor  had  at  the  time  of  making  his  deed  v.  Buchanan,  8.5  Ind.  42. 

the  very  estate,  both  as   to  quantity  and  ^  Stephens  v.  Weldon,  151   Pa.  St.  520, 

quality,  that  he  professed  to  convey.      In  23  Atl.  Rep.  28;  In  re  McGill,  6  Pa.  St. 

such  case,  a  failure  of  title  to  the  land  might  504;  Dunn  v.  Olncy,  14  Pa.  St.  219. 

be  interposed  in  an  action  on  the  mortgage.  *  §  1698,  last  clause.     And  see  Smith  v. 

Rice  V.  Goddard,  14  Pick.  293;  Tallmadge  Filing,  37  Mich.  148,  151,  per  Marston,  J. ; 

V.   Wallis,   25  Wend.   107.      So  might  he  Cotiinan  y.  Scoville,  80  111.300;  Patterson 

have  reserved  a  portion  of   the  purchase-  v.  Sweet,  3  Bradw.  550. 

money,  by  agreement,  to  await  the  clearing  ^  Evans  v.   McLucas,  1 2  S.  C.  56  ;  De- 

up  of  any  suspicion  on  the  title;    but  he  lavergne  v.   Norris,   7    Johns,  358,  5   Am. 

415 


§  1505.]  FORECLOSURE   BY   EQUITABLE   SUIT. 

The  possession  of  a  third  person,  without  right  and  without  the 
consent  of  the  grantor,  does  not  constitute  an  incumbrance,  or  a 
breach  of  a  covenant  in  the  grantor's  deed  against  incumbrances  ; 
consequently  the  purchaser  who  has  given  a  mortgage  for  a  portion 
of  the  purchase-money  cannot  charge  the  mortgagee  with  rent,  or 
for  damages  equal  to  rent,  for  the  period  during  which  such  third 
person  has  held  possession.^  Thus  it  is  held  that  if  there  be  a 
breach  of  the  covenant  against  incumbrances  by  reason  of  the  ex- 
istence of  tax  liens,  the  amount  of  these  would  be  a  proper  offset 
to  the  amount  due  on  the  mortgage.^  But  if  for  any  reason  a  de- 
cree cannot  be  made  for  the  mortgagee  directing  a  deduction  of  the 
amount  due  on  the  prior  incumbrances  against  which  the  mortgagor 
is  protected  by  the  covenant,  as,  for  instance,  when  such  incum- 
brances exceed  the  amount  of  the  mortgage,  the  foreclosure  suit 
upon  the  latter  will  be  stayed  until  the  property  has  been  released 
from  such  incumbrances.^  A  provision  in  the  purchase-money  mort- 
gage for  a  release  from  a  prior  mortgage  on  the  mortgagor's  paying 
certain  sums  does  not  form  an  exception  to  the  rule,  that  the  grantor 
who  has  conveyed  by  deed  having  the  usual  covenants,  including  a 
covenant  against  incumbrances,  must  procure  a  release  from  such 
prior  mortgage  before  he  is  entitled  to  a  decree  of  foreclosure  on 
the  purchase-money  mortgage.^ 

But  if  the  purchase-deed  contained  no  covenant  against  incum- 
brances, the  purchaser,  on  a  foreclosure  of  a  mortgage  given  by  him 
for  part  of  the  purchase-money,  cannot  offset  an  incumbrance,  such 
as  taxes,  existing  as  a  lien  upon  the  land  at  the  time  the  premises 
were  conveyed  to  him.^ 

1505.  The  breach  by  the  mortgagee  of  an  independent  cove- 
nant is  no  defence  to  the  foreclosure  of  a  mortgage  which  by  its 
terms  has  become  due  and  payable.  Where,  for  instance,  a  mort- 
gage is  given  in  part  payment  of  the  purchase-money  of  the  prem- 

Dec.  261  ;   Prescott  v.  Trueman,  4  Mass.  the   grantor  does   not   stipulate    that    the 

627,  3  Am.  Dec.  249';  M'Cra'ly  v.  Brisbane,  premises  are  free  from  liens,  but  that,  to 

1  Nott  &  McCord,  104,  9  Am.  Dec.  676.  the  contrary,  if  liens  exist,  and  the  grantee 

1  Diusmore  v.  Savage,  68  Me.  191.  shall   be  evicted  under   them,  the  grantor 

2  Union  Nat.  Bank  of  Eahway  v.  Pinner,  will  indemnify  him  for  such  damage.  The 
25  N.  J.  Eq.  495  ;  White  v.  Stretch,  2  N.  J.  consequence  is  that  there  is  no  covenant, 
Eq.  76;  Van  Riper  v.  AVilliams,  2  N.  J.  express  or  implied,  for  the  removal  of  in- 
-£_„   407.  cumbrances,  and  for  a  court  of  equity  to 

3  Dayton  v.  Dusenbury,  25  N.  J.  Eq.  decree  a  removal  would  be  to  order  a  spe- 
110.  cific  performance  of  a  pure  interpolation. 

*  Stio-er  V.  Bacon,  29  N.  J.  Eq.  442.  There  can  be  no  deduction  from  the  pur- 

5  Bandendistel  v.  Zabviskie  (N.  Y.),  26  chase-money  by  reason  of  the  existence  of  a 

Atl.  Rep.  455.     Beasley,   C.  J.,  said:  "In  covenant  for  further  assurance." 

such  a  situation  the  understanding  is  that 

416 


THE  ANSWER  AND  DEFENCE.    [§§  1506,  1506  a. 

ises,  and  at  the  same  time  the  mortgagee  executes  a  covenant  to  the 
purchaser  that  he  will  immediately  procure  releases  of  their  title 
from  certain  persons  named,  who  are  reputed  to  have  some  claim 
upon  the  lands,  the  covenant  is  not  dependent  upon  the  payment  of 
the  mortgage  money,  and  does  not  constitute,  with  the  mortgage,  a 
condition  that  the  mortgage  shall  be  paid  when  the  releases  shall  be 
procured. 1 

1506.  But  if  the  sale  was  effected  by  the  vendor's  fraud,  as 
by  fraudulently  procuring  and  exhibiting  as  true  a  false  abstract  of 
title,  the  purchaser  may  have  the  mortgage  and  the  conveyance 
rescinded.^  Fraud  is  a  defence  only  when  it  was  practised  upon  the 
defendant  by  the  mortgagee  or  his  agents,  or  with  his  knowledge.^ 
The  mortgagor  may  also  set  up  a  counter-claim  for  damages  occa- 
sioned by  the  fraud  practised  by  the  mortgagee  in  the  sale  of  the 
premises  to  the  mortgagor ;  *  such  as  a  misrepresentation  as  to  the 
amount  of  the  land ;  ^  its  quality  and  value ;  ^  and  if  such  damages 
exceed  or  equal  the  amount  of  the  mortgage,  the  claim  under  the 
mortgage  will  be  wholly  defeated.'^ 

But  fraud  in  the  sale  of  one  of  several  tracts  of  land  under  one 
contract,  but  conveyed  by  separate  deeds,  cannot  be  set  up  as  a 
defence  in  a  suit  to  foreclose  a  purchase-money  mortgage  upon  an- 
other of  such  tracts.^ 

1506  a.  A  mere  mistake  of  both  parties  as  to  the  quantity  of 
land  conveyed  is  no  ground  of  defence  to  a  mortgage  given  for 
the  purchase-money,  there  being  no  fraud  or  misrepresentation  by 
the  grantor.^     But  it  would  seem  that  a  misrepresentation  by  the 

1  Coursen  v.  CaDfield,  21   N.  J.  Eq.  92.  igation."     And  see  Duryee  v.  Linsheimer, 

"  The    mortgagee,"    said    the    Chancellor,  27  N.  J.  Eq.  366. 

"  has  a  right  to  say  m  AfEc /ffc/e?-a  non  veni.  ~  Booth  v.  Ryau,  31   Wis.  45;  Robards 
He  might  have  been  willing  to  bind  himself  v.  Cooper,  16  Ark.  288;  Furman  v.  Meeker, 
in  a  covenant  to  procure  releases  which  he  24  N.  J.  Eq.  110. 
knew  were  of  little   or  no  importance,  a  ^  Aikin  v.  Morris,  2  Barb.  Ch.  140. 
breach  of  which,  if  he  should  be  unable  to  *  Allen  v.  Shackelton,  15  Ohio  St.  145. 
procure  them,  would  subject  him  to  small  The  fraud  alleged  in  this  case  was  a  mis- 
damages;    but   he  might   be  unwilling   to  representation  of  the  boundaries  of  the  lot, 
bind  himself  to  forfeit  $2,500  of  the  pur-  and  the  property  covered  by  the  mortgage, 
chase-money  if  he  could  not  obtain  the  re-  ">  Dayton    v.  Melick,  32  N.  J.  Eq.   570, 
leases.     The  parties  could  have  made  the  27  N.  J.  Eq.  362. 

bargain  either  way.     They  chose  to  make,  ^  Kobiter   v.   Albrecht,    82   Wis.   58,    51 

and  did  make,  independent  covenants.    And  N.  W.  Rep.  1124. 

there  is  no  principle  established   in  courts  "^  Grant  v.   Tallman,  20  N.   Y.   191,    75 

of  equity  by  which  an  effect  will  be  given  Am.   Dec.    384  ;    Lathrop    v.    Godfrey,    6 

to  such  covenants  different  from  their  legal  Thomp.  &  C.  96,  3  Hun,  739. 

effect,  and   independent   covenants   turned  ^  Hicks  v.  Jennings,  4  Fed.  Rep.  855. 

into  conditional,  because  it  will  give  better  '•*  Northrop   v.    Sumney,  27    Barb.    196; 
protection  to  a  party,  or  will  diminish  lit- 

VOL.  II.            27  42^7 


§§  1507,  1508.]      FORECLOSURE  BY   EQUITABLE   SUIT. 

grantor,  though  made  under  a  mistake  as  to  his  own  rights,  but 
acted  upon  by  the  purchaser,  may  be  ground  for  relief  in  respect 
to  a  mortgage  given  to  the  grantor  for  the  purchase-money. ^  The 
deficiency  in  the  property  conveyed  may  be  so  serious  that  it  may 
be  regarded  as  evidence  of  imposition  or  fraud,  and  in  such  case  the 
rule  is  to  allow  such  a  reduction  of  the  purchase-money  as  will  com- 
pensate the  purchaser  for  the  value  of  the  land  lost.^ 

A  purchaser  who  has  assumed  an  existing  mortgage  cannot  set  up 
in  defence  to  a  foreclosure  suit  upon  it  that  his  grantor  misstated 
the  number  of  acres  conveyed,  and  that  the  mortgagee,  when  he 
sold  the  land  to  such  vendor,  made  a  similar  misstatement ;  for  the 
purchaser  and  mortgagee  are  not  in  such  case  privies  in  contract.^ 

1507.  An  assignee  of  a  mortgage  not  due  is  not  subject  to 
this  defence.  Failure  of  title  to  a  part  of  the  premises  for  the 
purchase-money  of  which  the  mortgage  was  given  is  no  defence  to 
an  action  by  an  assignee  of  the  mortgage  who  purchased  it  before 
due,  and  without  notice  of  such  failure.*  And  as  already  stated 
such  defence  would  not,  generally,  avail  against  the  original  mort- 
gagee, for  the  mortgagor's  remedy  would  be  on  the  covenants  of  the 
deed  of  purchase ;  but  when  the  defence  may  be  taken,  the  defend- 
ant may  show  that  the  assignment  of  the  mortgage  was  colorable 
only,  and  that  the  mortgagee  is  still  the  equitable  owner.^ 

1508.  Validity  of  title  may  be  made  a  condition  precedent  to 
the  payment  of  the  mortgage.  Where  the  mortgage  and  note  are 
conditioned  that  the  note  shall  not  be  deemed  due  and  payable  until 
the  title  of  the  grantor,  which  was  known  to  be  defective  as  to  a 
portion  of  the  premises,  is  perfected,  the  mortgagor  may  set  up  the 

Clark  V.  Davis,  32  N.  J.  Eq.  530;  Dresbach  verse  the  judgment  of  the  court  below  to 

V.  Stein,  41  Ohio  St.  70.  enable  the  defendant  to  lay  his  facts  before 

1  Chaniplin  v.  Laytin,  6  Paige,  189,  af-  a  jury,  and  have  the  judgment  of  the  law 
firmed  18  Wend.  407,  31  Am.  Dec.  382.  upon  them  when  they  are  all  known."  In 
See  Heath  v.  Pratt,  51  Vt.  238.  Tyson  v.  Eyrick,  141  Pa.  St.  296,  21   Atl. 

2  Comegys  v.  Davidson  (Pa.),  26  Atl.  Rep.  Rep.  635,  a  defence  was  allowed  to  the  ex- 
618.  In  this  case  the  vendor's  deed  pur-  tent  of  the  value  of  the  strip  of  one  foot  in 
ported  to  convey  a  lot  40  feet  in  width,  but  width,  to  which  title  could  not  be  given. 
in  fact  the  width  of  it  was  only  37  feet  and  In  Rodgers  v.  Olshoffsky,  110  Pa.  St.  147, 
4  inches.  In  a  suit  upon  the  purchase-  2  Atl.  Rep.  44,  the  court  did  not  allow  the 
money  mortgage,  "as  it  seems  to  us  now,"  defence  for  the  deficiency,  which  was  1.67 
say  the  court,  "  the  defendant  appears  to  be  feet  on  a  line  of  20  feet;  but  there  were 
entitled  to  a  deduction  for  the  proportionate  special  reasons  for  tiie  ruling. 

value  of  the  2  feet  and  8  inches  which  he  3  i:)avis  v.  Clark,  33  N.  J.  Eq.  579;  Clark 

did   not  get   to  the    40   feet  for  which  he  v.  Davis,  32  N.  J.  Eq.  530. 

agreed  to  pay,  and  for  which  the  deed  was  *  §§  834-847;    Stilwell   v.   Kellogg,   14 

made.     But  we  do  not  decide  even  that  con-  Wis.  461. 

clusively,  nor  do  we  decide  whether  he  may  6  Lathrop  v.  Godfrey,  3  Hun,  739. 

recovei"  more  than  that  proportion.     We  re- 

418 


THE   ANSWER   AND   DEFENCE.  [§§  1509,  1510. 

non-performance  of  tliis  condition  as  a  defence,  and  be  allowed  the 
value  of  that  portion  of  the  property  in  set-off;  but  he  should  be 
required  at  the  same  time  to  release  whatever  title  he  may  have 
acquired  to  it  by  his  deed.^  A  mortgage  for  purchase-money  has 
been  regarded  as  conditional  upon  the  title,  even  when  the  condition 
is  not  expressed.  And  so  where  a  mortgage  was  given  of  one  tract 
of  land  to  secure  the  purchase-money  of  another  tract,  which  the 
mortgagee  covenanted  by  his  bond  to  convey  with  covenants  of  war- 
ranty, in  an  action  to  foreclose  the  mortgage  the  failure  of  title  in 
the  vendor  was  declared  a  good  defence,  on  the  ground  that  the 
mortgagor  only  undertook  to  pay  the  mortgage  on  the  condition  that 
the  mortgagee  had  title  to  the  tract  he  agreed  to  convey.^ 

1509.  Statute  of  limitations.  —  Generally  the  fact  that  the  debt 
secured  by  the  mortgage  is  barred  by  the  statute  of  limitations  is  no 
defence  to  a  bill  to  foreclose  it.-^  In  a  few  States,  however,  when 
an  action  on  the  note  is  barred,  the  remedy  on  the  mortgage  is 
gone.  Distinct  remedies  may  be  pursued,  but  the  same  limitation 
applies  to  both.'*  Moreover,  a  purchaser  from  the  mortgagor  sub- 
sequent to  the  execution  of  the  mortgage  may  plead  the  statute  of 
limitations  as  a  defence  to  an  action  commenced  after  the  statute 
has  run  against  the  debt  secured.^  Upon  the  same  principle  a  junior 
mortgagee  may  avail  himself  of  the  defence  of  limitation  against 
the  debt  secured  by  the  prior  mortgage  which  is  sought  to  be  fore- 
closed.^ 

Where  a  mortgage  is  expressly  made  subject  to  a  prior  mortgage, 
the  junior  mortgagee  cannot,  in  an  action  to  foreclose  the  prior 
mortgage,  claim  that  the  latter  is  barred  by  the  statute  of  limita- 
tions.'' 

1510.  Insanity  of  mortgagor.  —  If  the  sanity  of  the  mortgagor 
is  questioned,  the  burden  is  upon  the  defendant  to  show  it ;  and  he 
must  show  not  merely  an  incapacity  to  make  a  valid  contract  at  the 
date  of  its  execution,  but  that  the  mortgagee  knew  and  took  ad- 
vantage of  the  grantor's  state  of  mind  ;    otherwise,  the  considera- 

1  Weaver  v.  Wilson,  48  111.  125.  Co.  v.  Murphy's  Flat  Fluming  Co.  22  Cal. 

2  Smith  V.  Newton,  38  111.  230.  620. 

8  See  §  1204.     The  effect  of  the  statute  ^  McCarthy  v.  White,  21    Cal.   495,  82 

of  limitations  is  there  fully  examined.    See,  Am.    Dec.   754;    Grattan   v.   Wiggins,   23 

also,  Haskell  v.  Bailey,  22  Conn.  569,  573;  Cal.   16;  Low  v.  Allen,  26  Cal.  141 ;  Lent 

Mich.  Ins   Co.  v.  Brown,  U  Mich.  265.  v.  Shear,  26  Cal.  361. 

*  Coster  V.  Brown,  23  Cal.  142 ;  Heinlin  6  gcott  v.  Sloan  (Tex.),  23  S.  W.  Rep. 

V.  Castro,  22  Cal.  100;  McCarthy  r.  White,  42;    Johnson  v.  Lasker  Asso.  (Tex.    Civ. 

21  Cal.  495,  82  Am.  Dec.  754  ;  Lord  v.  Mor-  App.),  21  S.  W.  Uep.  961. 

ris,  18  Cal.  482.     When  there  is  no  written  "^  Park  v.  Prendergast  (Tex.),  23  S.  W. 

obligation  for  the  debt,  see  Union  Water  Rep.  535.     See  §  744. 

419 


§§  1511-1512.]       FORECLOSURE    BY    EQUITABLE    SUIT. 

tion   being   paid,  the  security   will   be  held  good  for  the   amount, 
although  the  insanity  of  the  mortgagor  be  admitted  or  proved. 

The  mortgage  deed  must  at  the  hearing  be  admitted  or  proved. 
If  there  is  an  attesting  witness,  the  only  question  that  need  be 
asked  of  hiui  is  whether  the  raorto-no-or  executed  the  deed  in  the 
witness's  presence.  It  is  not  necessary,  as  in  the  case  of  a  will,  to 
prove  that  the  person  when  he  executed  it  was  of  sound  mind. 
Although  he  has  been  found  insane  by  an  inquisition  of  lunac}',  it 
is  not  the  duty  of  the  plaintiff  to  do  more  than  prove  the  execution 
of  the  deed.  The  defendant  must  bring;  forward  his  own  case  to 
have  the  deed  set  aside,  and  the  burden  of  proof  lies  on  his  side.' 

1511.  A  recovery  of  judgment- on  the  mortgage  note  or  bond  is 
no  defence  ;  ^  on  the  contrary,  such  judgment  may  be  relied  upon  as 
establishing  the  validity  of  the  note  or  bond,  and  of  the  mortgage 
so  far  as  the  debt  is  concerned.^  Neither  is  the  pendency  of  a  suit 
at  law  upon  the  mortgage  debt  any  defence  to  a  suit  to  foreclose  the 
mortgage,  unless  made  so  by  statute.*  Of  course  a  satisfaction  of  a 
judgment  upon  the  debt  would  be  a  defence.^  Under  the  Code  of 
New  York  and  the  codes  of  some  other  States  following  that,  pro- 
ceedings in  an  action  at  law  are  suspended  by  a  foreclosure  suit ;  ^ 
and  if  judgment  has  been  obtained  at  law,  the  remedy  upon  that 
must  be  first  exhausted.'' 

1511  a.  The  defendant  may  set  up  his  liability  to  a  creditor  of 
the  plaintiff  in  a  garnishee  or  trustee  process.  But  to  a  fore- 
closure suit  brought  by  the  assignee  of  a  mortgage,  it  is  no  sufficient 
answer  for  the  defendant  to  say  that  he  is  liable  for  the  debt  as  a 
garnishee  in  an  action  against  the  mortgagee,  though  he  knew  of  the 
assignment  of  the  mortgage  to  the  plaintiff  before  he  answered  the 
garnishee  process.  Neither  has  the  defendant  any  right  to  answer 
that  the  assignment  is  colorable,  collusive,  or  fraudulent,  as  this  is  a 
matter  which  does  not  concern  him.^ 

1512.  If  the  defendant  sets  up  satisfaction  of  the  mortgage,  he 
must  clearly  set  out  the  defence  in  his  answer,  and  his  proofs  must 

1  Jacobs  t'.  Richards,  18  Beav.  300.  Tappan  v.  Evans,  11  N.  H.  311 ;  Guest  v. 

2  §  936;  Vansant  i-.  Allmon,  '23  111.  30;    Byirgfon,  14  Iowa,  30. 

Jenkiiisou  r.  Ewing,  17  Ind.  505;  Severson  ^  Farmers'  Loan  and  Trust  Co.  v.  Eeid, 

W.Moore,  17  Ind.  231  ;  Goenen  v.  Schroeder,  3  Edw.  414. 

18  Minn.  G6.  «  Williamson   v.   Champliu,    Clarke  (N. 

3  Hosford  V.  Kichols,  1  Paige,  220 ;  Mor-  Y.),  9. 

ris  i;.  Floyd,  5  Barb.  130;  Clarke  I'.  Bancroft,  ^  Shufelt   v.   Shufelt,    9  Paige,  137,    37 

13  Iowa,  320.     See  Batchelder  f.  Taylor,  11  Am.  Dec.  381  ;  North  River  Bank  v.  Rog- 

N.  H.  129.  ers,  8  Paige,  648. 

4  Suydam  v.  Bartle,  9  Paige,  294  ;  Wil-  »  Phipps  v.  Rieley,  15  Oreg.  494,  16Pac. 
liainson    v.  Champlin,  Clarke    (N.  Y.),   9;  Rep.  185. 

420 


THE  ANSWER   AND   DEFENCE.  [§  1513. 

clearly  substantiate  his  answer ;  and  if  both  answer  and  the  testi- 
mony be  vague  and  uncertain  the  defence  will  fail.i  Payment  in 
whole  or  in  part,  when  properly  set  up  and  proved,  is  a  good  de- 
fence, not  only  for  the  mortgagor,  but  for  junior  incumbrancers.^ 
But  a  mortgagor  who  has  not  paid  the  mortgage  debt  cannot  set  up 
a  release  executed  by  one  who  had  no  authority  at  the  time  to  exe- 
cute it.3  It  is  a  good  answer  to  a  foreclosure  suit  that  the  debt  for 
the  security  of  which  the  mortgage  was  given  was  an  advancement 
or  gift,  and  that  accordingly  the  deed  and  note  had  been  left  with 
the  mortgagor.*  The  defence  that  the  complainant  has  received  a 
piece  of  property,  which  should  be  applied  on  the  mortgage  debt, 
may  be  taken  by  answer  without  filing  a  cross-bill.^ 

Where  in  the  foreclosure  of  a  junior  mortgage  it  appears  that  the 
prior  mortgage  was  given  by  a  son  to  his  mother  to  secure  to  her 
the  interest  of  a  certain  sura  for  her  life,  but  that  afterwards  the 
mother  resided  with  the  son,  and  the  latter  had  repeatedly  declared 
that  the  interest  due  his  mother  had  been  satisfied  by  arrangement 
between  them,  and  that  it  was  credited  on  the  bond,  which  was  not 
produced  at  the  trial,  nor  was  its  non-production  explained,  it  was 
held  that,  under  the  facts  proved,  there  was  a  presumption  that  the 
interest  had  been  satisfied.*^ 

An  agreement  made  by  the  holders  of  the  notes  of  a  corporation, 
secured  by  mortgage,  to  convert  the  notes  into  stock  upon  a  con- 
dition which  has  failed,  is  no  defence  to  a  suit  to  foreclose  the  mort- 
gage.' 

Where  the  defences  to  a  foreclosure  suit  are  the  invalidity  of  the 
mortgage,  and  also  payment  of  the  mortgage  debt,  it  is  error  for  the 
court,  after  deciding  the  first  point  in  favor  of  the  defendant,  to 
refuse  to  pass  upon  the  second,  since  a  money  judgment  could  be 
rendered  for  the  debt  if  unpaid.^ 

1513.  An  agreement  by  the  parties  subsequent  to  the  mort- 
gage by  which  the  rents  of  the  mortgaged  premises  are  assigned  to 

1  Suhr  V.  Ellswoith,  29   Mich.  57  ;  Fin-    Velsov,  43  Mich.  208,  5  N.  W.  Rep.  265  ; 
layson  v.  Lipscomb,  16  Fla.  751  ;  Richard-    Hendiix  v.  Gore,  8  Oreg.  406. 

son  V.  Tolman,  44  Mich.  379  ;  Cameron  v.        ^  Jennings  v.  Hunt,  6  Bradw.  523. 
Cuikins,  44  Mich.  531.  4  Peabody  v.  Peabody,  n9  Ind.  556. 

In  Pennsylvania,  where  this  defence  is  set        6  Edgerton  v.  Young,  43  111.  464. 
up  in  an  action  of  scire  facias  sur  mortgage,        6  Eckel  v.  Eckel,  49  N.  J.  Eq.  587 ;  27  Atl. 

the  court  may  leave  the  question  of  pay-  Rep.  433. 

ment,  as  one  of  fact,  to  the  jury.     German        ^  Pugh  v.  Fairmount    Mining  Co.   112 

Ins.  Co.  V.  Davenport,  9  Atl.  Rep.  517.  U.  S.  238,  5  Sup.  Ct.  Rep.  238. 

2  Prouty  V.  Eaton,  41  Barb.  409  ;  Prouty        8  Qleaton  v.  Gibson,  29  S.  C.  514,  7  S.  E. 
V.  Rice,  50   Barb.  344.      See    Edwards   r.  Rep.  833. 

Thompson,  71  N.  C.  177;  Johnson  v.  Van 

421 


§§  1514,  1515.]      FORECLOSURE   BY   EQUITABLE   SUIT. 

the  mortgagee  to  be  collected  by  him,  and  applied  to  the  debt  until 
it  is  fully  paid,  is  a  good  defence  to  a  suit  to  foreclose ;  ^  and  so  is 
an  agreement  to  rescind  a  sale  of  land,  the  purchase-money  of  which 
the  mortgage  was  given  to  secure,  by  which  the  land  is  to  be  recon- 
veyed  and  the  mortgage  surrendered;^  or  an  agreement  to  extend 
the  time  of  payment,^  when  made  for  a  valuable  consideration.* 
An  agreement  extending  the  time  of  payment  is  no  part  of  the 
mortgage,  and  does  not  draw  the  mortgage  within  an  act  forbidding 
the  foreclosure  of  a  mortgage  until  one  year  after  the  last  instalment 
is  due.^ 

1514.  As  a  general  rule,  a  defendant  cannot  object  to  an  in- 
sufficient service,  or  the  want  of  service,  upon  another  defend- 
ant who  is  not  a  necessary  party  to  the  suit.^  Of  course  a  defend- 
ant may  take  advantage  of  want  of  service,  or  of  an  ineffectual  ser- 
vice, upon  himself  by  a  special  appearance  and  plea  in  the  suit ;  or 
he  may  in  such  case  take  no  notice  of  the  suit,  as  he  would  not  be 
bound  by  the  decree.  A  decree,  however,  which  recites  that  process 
was  duly  served  upon  a  defendant  is  prima  facie^  if  not  conclusive, 
proof  of  notice  to  him  of  the  foreclosure  suit.''  It  has  been  held, 
however,  that  a  person  who  stands  in  the  relation  of  surety  for  the 
mortgage  debt,  and  whose  right  it  is  to  have  the  entire  equity  of 
redemption  applied  in  the  first  place  to  the  payment  of  it,  may  re- 
quire the  bringing  in  of  parties  having  an  interest  in  it,  so  as  to 
make  the  sale  perfect  against  all  equities.^ 

Of  course  a  defendant's  appearance  in  an  action  cures  a  want  of 
service.  A  mortgagor  who  was  absent  from  the  State  when  the 
action  was  commenced,  but  availed  himself  of  a  stay  of  proceed- 
ings obtained  in  his  behalf  after  a  decree  was  rendered,  thereby  ap- 
peared in  the  action,  which  was  afterwards  concluded  by  the  decree 
of  foreclosure  and  sale  thereunder.^ 

1515.  Bill  of  interpleader.  —  If  the  defendant,  admitting  the  in- 
debtedness, is  in  doubt  to  which  of  two  claimants  he  ought  to  pay 
it,  he  should  make  his  answer  a  bill  of  interpleader,  placing  himself 
indifferently  between  them.^^ 

1  Angler  v.  Masterson,  6  Cal.  61 ;  Ford  v.        ^  Wallace  v.  Hussey,  63  Pa.  St.  24. 
Smith,  60  Wis.  222,  18  N.  W.  Rep.  925.  6  Mims  v.  Mims,  35  Ala.  23;  Sample  v. 

2  Bledsoe  v.  Rader,  30  Ind.  354.  Lee,  13  Iowa,  304. 

3  Dodge  V.  Crandall,  30  N.  Y.  294;  An-        ">  Carpenter  v.  Millard,  38  Vt.  9. 
drevvs  v.  Gillespie,  47  N.  Y.  487.  »  Kortright  v.  Smith,  3  Edw.  402. 

*  Trayser  v.  Ind.  Asbury  University,  39        ^  Franse  v.  Armbuster,  28  Neb.  467,  44 
Ind.  556;  Tompkins    v.   Tompkins,  21  N.    N.  W.  Rep.  481. 
J.  Eq.  338  ;  Maryott  v.  Renton,  21  N.  J.  Eq.        ^^  Harrison  v.  Pike,  48  Miss.  46. 
381. 

422 


THE  ANSWER   AND  DEFENCE.  [§  1515. 

The  mortgagor  cannot  set  up  by  cross-bill  the  defence  that  the 
notes  secured  by  the  mortgage  were  improperly  made  payable  to 
one  of  two  partners  who  has  misappropriated  the  funds  of  the  firm, 
and  is  indebted  to  his  copartnei'. 

423 


CHAPTER   XXXIII. 

THE  APPOINTMENT  OF  A  EECEIVEE. 

I.  When  a  receiver  will  be  appointed,  1516-  I  II.  Duties  and  powers  of  a  receiver,  1535- 
1534.  I  1537. 

I.    When  a  Receiver  ivill  he  Ajjpointed. 

1516.  General  principles.^ —  A  receiver  of  the  rents  and  profits 
may  be  appointed  pendente  lite  when  the  mortgage  is  insufficient, 
and  the  party  personally  liable  is  insolvent ;  or  when  it  is  provided 
by  the  deed  that  the  mortgagee  shall  have  the  rents  and  profits  after 
a  default :  for  otherwise,  since  the  owner  of  the  equity  of  redemp- 
tion, in  all  those  States  where  the  mortgagee's  right  of  entry  upon 
the  happening  of  a  default  is  taken  away,  is  entitled  to  the  rents 
and  profits  until  a  sale  under  decree  of  court  and  possession  under 
it  given  to  the  purchaser,  the  holder  of  the  mortgage  would  be  de- 
prived of  a  valuable  part  of  his  security .^  The  mere  fact  that  there 
has  been  a  default  in  the  payment  of  the  debt  is  no  ground  for  the 
appointment  of  a  receiver,^  unless  there  be  a  stipulation  in  the  mort- 
gage that  the  mortgagee  shall  have  the  rents,  or  he  is  entitled  to 
them  under  existing  laws.*  This  right  to  have  a  receiver  of  the 
rents  appointed  pending  the  litigation  depends  upon  the  general 
principle  of  equity,  that  the  purpose  of  such  an  appointment  is  to 

1  Tor  the  law  relating  to  receivers  of  v.  Scofield,  98  N.  Y.  475.  Mississippi : 
railroad  companies,  see  Jones  on  Corporate  Whitehead  v.  Wooten,  43  Miss.  523  ;  Myers 
Bonds  and  Mortgages;  the  appointment  and  y.  Estell,  48  Miss.  372.  Kentucky:  Uoug- 
jurisdiction  of  such  receivers,  §§  456-492;  lass  v.  Cline,  12  Bush.  608;  Newport,  &c. 
their  rights  and  liabilities,  §§  492-530 ;  their  Bridge  Co.  v.  Douglass,  12  Bush.  673.  Dis- 
debts  and  certificates,  §§  533-546.  trict  of  Columbia  :  Keyser  v.  Hitz,  4  Mack, 

2  New  York:  Bank  of  Ogdensburg  v.  179.  New  Jersey  :  Leeds  v.  Gifford,  41  N. 
Arnold,  5  Paige,  38,  40  ;  Asjtor  v.  Turner,  J.  Eq.  464.  West  Virginia :  Ogdeu  v.  Chal- 
11  Paige,  436,  43  Am.  Dec.  766  ;  Sea  Insur-  fant,  32  W.  Va.  559,  9  S.  E.  Rep.  879; 
ance  Co.  v.  Stebbins,  8  Paige,  566 ;  Shot-  Grantham  v.  Lucas,  15  W.  Va.  425.  For 
well  V.  Smith,  3  Edw.  588  ;  Warner  v.  the  reason  intimated  in  the  text,  the  prac- 
Gouverneur,  1  Barb.  36,  38  ;  Clason  v.  tice  of  appointing  a  receiver  is  chiefly  con- 
Corley,  5  Sandf.  447  ;  Mitchell  v.  Bartlett,  fined  to  those  States  where  the  mortgagee's 
51  N.  Y.  447  ;  Howell  i'.  Ripley,  10  Paige,  right  of  entry  upon  default  is  taken  away. 
43;  Frelinghuysen  u.  Golden,  4  Paige,  204;  ^  Williams  v.  Robinson,  16  Conn.  517; 
Syracuse  City  Bank  v.  Tallman,  31  Barb.  Scott  v.  Ware,  65  Ala.  174. 

201  ;  Rider  v.  Bagley,  84  N.  Y.  461  ;  Ar-        *  Whitehead   i;.  Wooten,  43    Miss.  523  ; 
gall  V.  Pitts,  78  N.  Y.  239,  242  ;  Wyckoff    Morrison  v.  Buckner,  Hempst.  442. 

424 


WHEN   A   RECEIVER   WILL   BE   APPOINTED.  [§  1516. 

preserve  the  property,  so  that  it  may  be  appropriated  to  satisfying 
the  decree  of  court.  A  mortgagee  or  trust  creditor,  to  be  entitled 
to  a  receiver,  must  show  tliat  it  is  necessary  to  interfere  witli  the 
mortgagor's  possession  on  account  of  the  inadequacy  of  the  security 
and  the  insolvency  of  the  mortgagor.^  Where  there  is  good  equi- 
table ground  for  the  appointment  of  a  receiver,  it  is  no  valid  objec- 
tion to  the  appointment  that  the  mortgage  does  not  expressly  pledge 
the  rents  and  profits  of  the  mortgaged  property .^  If  the  mortgagor 
is  doing  no  injury  or  waste  to  the  property,  and  is  permitting  or 
threatening  none ;  if  he  has  not  failed  to  pay  the  taxes,  and  is  not 
allowing  the  mortgage  debt  to  increase  by  the  accumulation  of  in- 
terest ;  and  if  he  is  not  shown  to  be  irresponsible  for  any  deficiency 
there  may  be,  a  receiver  will  not  be  appointed.^  This  relief  is  given 
with  great  caution,  and  only  when  the  mortgagee  has  no  other  ade- 
quate means  of  protecting  his  rights.'*  The  necessity  for  this  pro- 
tection, and  the  special  grounds  and  reasons  for  asking  it,  must  be 
clearly  alleged  and  proved  before  it  will  be  granted.^  The  appoint- 
ment is  a  matter  for  the  sound  discretion  of  the  court.^ 

If  the  mortgagor  is  applying  the  rents  and  profits  to  keep  down 
the  interest  on  the  first  mortgage,  the  court  will  not  appoint  a  re- 
ceiver on  the  application  of  the  second  mortgagee,  although  it  may 
appear  that  the  security  is  inadequate  and  the  mortgagor  insolvent.'^ 
If  the  first  mortgagee  be  jn  possession,  he  cannot  be  disturbed  ;  and 
when  a  receiver  is  appointed  on  the  application  of  a  subsequent 
mortgagee,  it  must  be  with  the  consent  of  prior  incumbrancers,  or 
without  prejudice  to  their  rights.^  The  first  mortgagee  may  at  any 
time  enter  or  bring  ejectment  against  such  receiver. 

The  appointment  of  a  receiver  is  an  equitable  remedy,  and  has 

^  Shotwell  y.  Smith,  3  Edw.  588  ;  Quincy  ^  Morrison    v.   Buckner,    Hempst.    442; 

V.  Cheeseman,  4  Sandf.  Ch.  405  ;  Pullan  v.  Callanan  v.  Shaw,  19  Iowa,  183  ;  Hackett  ;;. 

Cincinnati  &  Chicago  Air  Line  R.  R.  Co.  4  Snow,  10  Ir.  Eq.  220;  First  Nat.  Bank  v. 

Biss.  35.  Gage,  79  111.   207  ;    Heavilon   v.  Farmers' 

As  to  evidence  of  the  mortgagor's  insolv-  Bank,  81  Ind.' 249. 

ency,  see  Durant  v.  Crowell,  97  N.  C.  367,  ^  Cone  v.  Paute,  12  Pleisk.  506;  Jacobs 

2  S.  E.  Rep.  541.  v.  Gibson,  9  Neb.  380;  Rider  v.  Bagley,  84 

2  Grant  v.  Phoenix  Mut.  L.  Ins.  Co.  121  N.  Y.  461  ;  Sales  v.  Lusk,  60  Wis.  490; 
U.  S.  105,  7  Sup.  Ct.  Rep.  841.  West  v.  Chasten,  12  Fla.  315;  Benneson  v. 

3  Morris  v.  Branchaud,  52  Wis.  187;  Bill,  62  111.  408;  Cone  y.  Combs,  18  Fed. 
Sales  V.  Lusk,  60  Wis.  490;  Ilntcbinson  v.  Rep.  576. 

First  Nat.  Bank  (Ind.),  30  N.  E.  Rep.  952.  ■?  Cortleveu  v.  Plathaway,  11  N.  J.  Eq. 

*  First  Nat.  Bank  v.  Gage,  79  111.  207;  39,  64  Am.  Dec.  478;  Myton  v.  Davenport, 

Silverman  v.  N.  W.  Mut.  Life  Ins.  Co.  5  51  Iowa,  583. 

Bradw.  124;  Cortleyeu  v.  Hatliaway,  1 1  N.  ^  iJvyan   v.  Cormick,    1  Cox's   Eq.  Cas. 

J.  Eq.  39,  64  Am.  Dec.  478  ;  Syracuse  City  422;    Dalmer  v.   Dashwood,   2    Co.k's   Eq. 

Bank  v.  Tallman,  31  Barb.  201.     See  Eslava  Cas.  378. 
V.  Crampton,  61  Ala.  507. 

425 


§  1517.]  THE   APPOINTMENT   OF   A   RECEIVER. 

been  said  to  be  in  effect  an  equitable  execution.^  This  remedy 
bears  the  same  relation  to  courts  of  equity  that  proceedings  in  at- 
tachment bear  to  courts  of  law.  "  The  issuing  of  an  attachment 
and  the  appointment  of  a  receiver  in  a  civil  action  are  both  proceed- 
ings which  are  merely  ancillary  or  auxiliai-y  to  the  main  action. 
The  action  may  be  prosecuted  to  final  judgment,  either  with  or 
without  sucli  proceedings.^  These  auxiliary  proceedings  are  merely 
intended  to  secure  the  means  for  satisfying  the  final  judgment,  in 
case  the  plaintiff  should  succeed  in  the  action,  and  they  can  only  be 
resorted  to  where  the  special  circumstances  exist  which  the  law  pre- 
scribes for  their  institution."  ^  The  appointment  of  a  receiver  is 
equivalent  to  a  sequestration  of  the  rents  and  profits  accruing  after 
the  date  of  the  order,  and  as  to  all  which  have  previously  accrued, 
and  which  remain  unpaid.*  The  appointment  of  a  receiver  does  not 
create  any  new  lien  upon  the  property,  and  does  not  ordinarily  give 
any  advantage  or  priority  to  the  person  obtaining  the  appointment 
over  other  parties  in  interest.^ 

When  the  application  is  for  the  appointment  of  a  receiver  of  the 
mortgaged  property,  it  is  improper  for  the  court  to  appoint  a  re- 
ceiver of  any  property  not  embraced  in  the  mortgage.^ 

1517.  A  receiver  may  be  appointed  on  the  application  of  the 
mortgagor,  as  against  the  mortgagee  in  possession,  when  there  is 
equitable  ground  for  it :  as,  for  instance,  when  the  mortgagee  is  irre- 
sponsible, and  the  rents  and  profits  are  liable  to  be  lost,  or  he  is  com- 
mitting waste.  But  if  he  be  responsible,  and  anything  remains 
due  to  him  on  the  mortgage  debt,  the  appointment  will  not  be  made 
unless  he  is  mismanaging  the  property  : ''  and  his  affidavit  that  there 
is  a  balance  due  him  will  be  sufficient  to  prevent  the  appointment, 
for  the  question  of  indebtedness  will  not  be  tried  on  such  an  appli- 
cation ;  and  when  the  question  depends  upon  a  settlement  of  the 
mortgagee's  account,  it  can  be  determined  only  upon  a  suit  in  equity 
to  redeem.^ 

A  receiver  will  not    be  appointed  in  a  proceeding  to  enforce  a 

1  Jeremy's  Eq.  Jur.  249.  ^  Pascault  v.  Cochran,  34  Fed.  Rep.  358  ; 

2  Muncie  Nat.  Bank  v.  Brown,  112  Ind.  Wormser  v.  Merchants'  Nat.  Bank,  49  Ark. 
474,  14  N.  E.  Rep.  358.  117,  4  S.  W.  Rep.  198. 

3  Cincinnati,  Sandusky  &  Cleveland  R.  «  St.  Louis,  A.  &  T.  Ry  Co.  v.  Whitaker, 
R.  Co.  V.  Sloan,  31  Ohio  St.  1 ,  per  White,  J.  68  Tex.  630,  5  S.  VV.  Rep.  448. 

*  Gay  nor  v.  Blewett,  82  Wis.  313,  52  N.  "^  Boston  &  Providence  R.  R.  Co.  v.  N.  Y. 

W.  Rep.  313 ;  Syracuse  City  Bank  v.  Tall-  &  N.  E.  R.  R.  Co.  12  R.  I.  220. 

man,  31  Barb.  201,  212  ;  Lofsky  v.  Maujer,  »  Bolles  v.  Duff,  35  How.  Pr.  481  ;  Pat- 

3  Sandf.  Ch.  69,  71  ;  Johnston  v.  Riddle,  70  ten  v.  Accessory    Transit  Co.  4  Abb.  Pr. 

Ala.   219,  225;    Argall  v.  Pitts,  78  N.  Y.  235,237;  Quinn  y.  Brittain,  3  Edw.  314. 
239 ;  Thornton  v.  Bank,  76  Va.  432. 
426 


WHEN  A  RECEIVER  WILL  BE  APPOINTED.   [§§  1518,  1519. 

vendor's  implied  lien.  It  is  no  part  of  the  contract  of  sale,  either 
express  or  implied,  that  the  vendor  shall  appropriate  anything  but 
the  land  itself  for  the  satisfaction  of  his  purchase-money  ;  and  it  is 
a  part  of  the  implied  contract  that  the  purchaser  is  entitled  to  the 
possession  until  the  land  is  sold  to  enforce  the  lien.^ 

1518.  This  remedy  is  regarded  as  peculiarly  appropriate  in 
cases  of  mortgages  of  leasehold  estates,  inasmuch  as  the  value 
of  such  a  security  consists  chiefly  in  the  right  to  receive  the  rents, 
and  the  delay  of  protracted  litigation  may  wholly  destroy  this 
valiie.2  In  such  a  case  there  may  be  urgent  need  of  the  aid  of  a 
receiver  by  reason  of  the  mortgagor's  failure  to  pay  the  rent,  and 
the  landlord's  threatening  an  eviction  ;  and  a  receiver  may  conse- 
quently be  appointed  before  answer,  and  even  before  the  service  of 
process  upon  the  defendant  mortgagor.^ 

1519.  The  English  rule,  which  prevailed  before  the  right  was 
made  general  by  a  recent  statute,*  was  that  a  mortgagee  who  had 
a  legal  estate  and  might  enter  after  a  default,  or  recover  posses- 
sion at  law,  was  not  entitled  to  a  receiver  of  the  rents.^  A  sub- 
sequent mortgagee,  however,  having  an  equitable  estate  only,  and 
being  unable  to  enter  as  against  the  first  mortgagee,  was  held  to 
have  a  better  ground  for  the  application,  and  was  therefore  gen- 
erally entitled  to  a  receiver  when  proper  occasion  for  the  appoint- 
ment was  shown.^  This  distinction  was  clearly  established  by 
Lord  Eldon,  upon  the  ground  that  equity  will  not  interfere  when 
the  mortgagee   has  an   adequate   remedy  at   law.'^     When,  under 

1  Morford  v.  Hamner,  59  Tenn.  391.  mortgage  deed   for   the   appointment  of  a 

2  Astor  V.  Turner,  2  Barb.  444.  receiver.     See  Jolly  v.  Arbuthnot,  4  De  G. 

3  Barrett  v.  Mitchell,  5  Ir.  Eq.  501.  &  J.  224;  Law  v.  Glenn,  L.  R.  2  Ch.  App. 
*  23  &  24  Vict.  ch.  145,  §§  11-32.     This  634. 

statute  applies  to  all  mortgages,  those  con-  ^  Berney  i'.   Sewell,    1    Jac.  &  W.  647 ; 

taining  powers  of  sale  as  well  as  those  that  Cox   r.    Champneys,    Jac.   576;   Bryan   v. 

do  not.     It  enables  the  mortgagee,  in   all  Cormick,  1  Cox,  422 ;  Meaden  v.  Sealey,  6 

cases  where  the  payment  of  the  principal  Hare,  620;  Holmes  v.  Bell,  2  Beav.  298; 

is  in  arrear  one   year,  or   the  interest  six  Starch  v.  Young,  5  Beav.  557 ;  Ackland  v. 

months,  or  after  any  omission  to  pay  any  Gravener,  31  Beav.  482. 

insurance  premium  which,  by  the  terms  of  ^  Anderson  v.  Kemshead,  16  Beav.  329; 

the  deed,  ought  to  be  paid,  to  obtain   the  Dalmer  v.  Dashwood,  2  Cox,  378 ;  Greville 

appointment  of  a  receiver  of  the  rents  and  v.  Fleming,  2  Jo.  &  Lat.  335;   Meaden  v. 

profits  of  the   estate.     He  is   deemed  the  Sealey,  6  Hare,  620. 

agent  of  the  mortgagor,  or  owner  of  the  "^  Berne}'   v.   Sewell,   1   Jac.   &  W.    627. 

projierty,  who  is  solely  responsible  for  his  See,  also,  observations  of  Lord  Komilly  in 

acts  or  defaults,  unless  otherwise  provided  Ackland  v.  Gravener,  31  Beav.  482,  where 

for  in  the  mortgage.     The  statute  regulates  he  says  that  "  though  the  court  refuses  to 

his  duties,  powers,  and  compensation.    This  grant  the  receiver  in  cases  where  there  is  no 

right  to  obtain   the  appointment  of   a   re-  (juestion,  and  the  mortgagee  can  take  pos- 

ceiver  is  independent  of  any  action  to  fore-  session    at  once,   there    being    no   defence 

close.     It  is  not  unusual  to  provide  in  the  whatever  to  his  action  of  ejectment,  slill  if 

427 


§  1520.] 


THE   APPOINTMENT   OF   A   RECEIVER. 


peculiar  circumstances,  the  reason  for  this  distinction  fails,  and 
the  mortgagee,  although  having  the  legal  estate,  is  unable  to  take 
possession,  he  is  entitled  to  this  relief  in  equity  ;  as  where  a  mort- 
gage was  given  by  a  surety  in  addition  to  one  given  by  the  prin- 
cipal debtor,  yet  with  a  proviso  that  the  mortgagee  should  not  have 
recourse  to  the  surety's  estate  or  be  at  liberty  to  sell  it  until  the 
estate  primarily  liable  shall  prove  an  insufficient  security.^ 

1520.  In  the  United  States,  courts  of  equity  have  generally 
exercised  their  powers  in  appointing  receivers  with  much  more 
freedom  ;  though  the  English  rule  prevails  in  States  where  the 
legal  title  rests  in  the  mortgagee,  and  after  forfeiture  he  can  main- 
tain an  action  of  ejectment  to  recover  possession  ;  and  in  such 
States  a  court  of  equity  will  not  generally  appoint  a  receiver,  but 
will  leave  the  mortgagee  who  has  the  legal  title,  or  the  right  at  law 
to  enter  and  take  possession  of  the  mortgaged  premises,  to  pursue 
his  legal  remedy.^  There  must  be  something  more  than  the  in- 
adequacy of  the  security  and  the  insolvency  of  the  mortgagor  to 
warrant  the  appointment  at  the  instance  of  a  mortgagee  having  the 
legal  estate.  Other  special  circumstances  calling  for  this  equitable 
relief  must  be  shown  :  either  that  the  mortgagee  has  only  an  equi- 
table estate  and  cannot  enter  and  take  possession,  or  that,  by  reason 
of  the  fraud  or  negligence  of  the  person  in  possession,  the  security 
is  likely  to  be  impaired  ;  as,  for  instance,  by  allowing  the  taxes  to 


the  mortgagee  cannot  take  possession,  as  if, 
for  instance,  there  is  a  prior  mortgagee, 
who  refuses  to  take  possession,  then,  at  the 
instance  of  the  second  mortgagee,  the  court 
does  grant  a  receiver." 

1  Ackland  v.  Gravener,  31  Beav.  482. 

2  Oliver  v.  Decatur,  4  Cranch  C.  C.4.58; 
Williamson  v.  New  Albany  R.  R.  Co.  1  Biss. 
201  ;  Union  Trust  Co.  v.  St.  Louis,  &c.  R. 
R.  Co.  4  Cent.  L.  J.  58.5  ;  Fiisbie  r.  Bate- 
man,  24  N.  J.  Eq.  28 ;  Best  v.  Schermier,  6 
N.  J.  Eq.  1.54  ;  Cortleyeu  v.  Hathaway,  11 
N.  J.  Eq.  39,  64  Am.  Dec.  478.  In  the  last 
named  case  the  court  appointed  a  receiver 
upon  the  application  of  a  subsequent  mort- 
gagee, —  showing  the  insolvency  of  the 
mortgagor,  inadequacy  of  the  security,  the 
sale  of  the  premises  to  an  insolvent  pur- 
chaser, who  had  agreed  as  part  of  the  con- 
sideration to  reduce  the  mortgage  debt,  and 
upon  obtaining  possession  refused  to  keep 
his  agreement,  and  offered  to  sell  the  prop- 
erty for  the  amount  of  the  incumbrances 

428 


after  taking  off  the  crops.  Mr.  Chancellor 
Williamson,  remarking  upon  the  general 
rules  governing  the  appointment  of  a  re- 
ceiver, said  that  the  courts  of  New  Jersey 
had  not  adopted  the  rule  of  appointing  a 
receiver  simply  on  the  ground  of  the  inade- 
quacy of  the  security  and  the  insolvency  of 
the  mortgagor.  "  This  court  has  gone  upon 
the  ground  that  where  a  man  takes  a  mort- 
gage security  for  his  debt,  and  permits  the 
mortgagor  to  remain  in  possession,  if  there 
is  a  default  in  payment,  the  mortgagee 
must  appropriate  the  property  in  the  usual 
way  to  the  payment  of  the  debt.  If  he  is  a 
first  mortgagee  and  wishes  possession,  he 
must  takes  his  legal  remedy  by  ejectment. 
If  he  is  a  second  mortgagee,  he  takes  his 
security  with  the  disadvantages  of  a  second 
incumbrancer."  See,  also,  McLciin  v.  Pres- 
ley, 56  Ala.  211,  where  a  receiver  was  denied 
to  a  mortgagee  after  he  had  himself,  with- 
out right,  become  purchaser  at  a  sale  under 
a  power  in  the  mortgage. 


WHEN   A   RECEIVER   WILL   BE   APPOINTED. 


[§  1521. 


go  unpaid,  whereby  a  lien  is  created  superior  to  that  of  the  mort- 
gage, and  which  may,  if  not  extinguished,  extinguish  the  mortgage.^ 

The  terms  of  the  mortgage  may,  however,  be  such  that  the 
mortgagee  will  have  no  right,  as  against  the  mortgagor  and  his 
assigns,  to  take  the  rents  of  the  property  prior  to  a  foreclosure  sale, 
or  a  sale  under  a  power.^ 

1521.  The  prevailing  rule,  in  those  States  in  which  the  legal 
title  is  regarded  as  being  in  the  mortgagor  until  foreclosure,  is  that 
a  receiver  will  be  appointed  upon  the  application  of  a  mortgagee 
after  default,  without  reference  to  his  legal  rights,  whenever  suffi- 
cient equitable  grounds  for  this  relief  are  shown,  which  are  in  gen- 
eral that  the  premises  are  an  inadequate  security  for  the  debt,  and 
the  mortgiigor  or  other  person  in  possession,  who  is  personally  liable 
for  the  debt,  is  unable  to  make  good  the  deficiency.^     Additional 


1  Million  V.  Crothers,  28  N.  J.  Eq.  567 ; 
Warwick  v.  Hammell,  32  N.  J.  Eq.  427; 
Brasted  v.  Sutton,  30  N.  J.  Eq.  462 ;  Cone 
V.  Paute,  12  Heisk.  506  ;  Johnson  y.  Tucker, 
2  Tenn.  Cli.  398. 

2  Freeilman's  Sav.  &  Trust  Co.  v.  Shep- 
herd, 127  U.  S.  494,  8  Sup.  Ct.  Kep.  1250. 

'^  United  States:  Grant  v.  Phoenix  Mut. 
L.  Ins.  Co.  121  U.  S.  105,  7  Sup.  Ct.  Rep. 
841;  Kountze  i'.  Omaha  Hotel  Co.  107  U. 
S.  378,  3  Sup.  Ct.  Rep.  911  ;  Freedman's 
Sav.  &  Trust  Co.  v.  Shepherd,  127  U.  S. 
494,  8  Sup.  Ct.  Rep.  1250;  Shepherd  v. 
Pepper,  133  U.  S.  626,  10  Sup.  Ct.  Rep. 
438;  Hitz  v.  Jenks,  123  U.  S.  297,  306; 
Cone  V.  Combs,  18  Fed.  Rep.  576,  5  Mc- 
Crary,  651.  New  York:  Bank  of  Ogdens- 
burg  V.  Arnold,  5  Paige,  39  ;  Shotwell  v. 
Smith,  3  Edw.  588 ;  Sea  Ins.  Co.  v.  Steb- 
bins,  8  Paige,  565  ;  Warner  v.  Gouverneur, 
1  Baib.  36,38  ;  Jenkins  v.  Hinman,  5  Paige, 
309;  Syracuse  City  Bank  v.  TaUman,  31 
Barb.  20.1  ;  Patten  v.  Accessory  Transit 
Co.  4  Abb.  Pr.  235,  13  How.  502  ;  Bolies  v. 
Duff,  35  How.  Pr.  481 ;  Smith  ;;.  Tiffany, 
13  Hun,  671;  Hollenbeck  v.  Dounell,  29 
Hun,  94,  94  N.  Y.  342.  Georgia :  Hart  v. 
liespess,  89  Ga.  87, 14  S.  E.  Rep.  910.  West 
Virginia:  Dunlap  v.  Hedges,  35  W.  Va. 
287,  13  S.  E.  Rep.  656.  Mississippi :  Myers 
V.  Estell,  48  Miss.  372,  per  Simrall,  J. ; 
Whitehead  v.  Wooten,  43  Miss.  523,  526; 
Phillips  V.  Eiland,  52  Miss,  721.  Iowa: 
White  V.  Griggs,  54  Iowa,  650,  7  N.  W. 
Ecp.  125;  Barnett  v.  Nelson,  54  Iowa,  41, 
6  N.  W.  Rep.  49,  37  Am.  Rep.  183;  Mytou 
V.   Davenport,  51     Iowa,    583;    Sleeper  v. 


Iselin,  59  Iowa,  379,  13  N.  W.  Rep.  341. 
The  present  rule  is,  that  a  mortgage  which 
does  not,  in  terms,  give  to  the  mortgagee 
the  right  of  possession  before  sale  and  the 
termination  of  the  right  of  redemption,  nor 
pledge  the  rents  and  profits,  creates  no  lien 
u])on  nor  interest  in  the  right  of  possession 
given  by  the  statute,  nor  upon  the  revenue 
which  accrues  from  it,  and  the  appointment 
of  a  receiver  to  take  possession  of  property 
under  such  a  mortgage,  or  to  appropriate 
the  rents  from  it,  is  a  violation  of  the  stat- 
utory rights  of  the  mortgagor.  American 
Investment  Co.  v.  Farrar  (Iowa),  54  N.  W. 
Rep.  361  ;  Swan  v.  Mitchell,  82  Iowa,  307, 
47  N.  W.  Rep.  1042.  In  Paine  v.  McElroy, 
73  Iowa,  81,  34  N.  W.  Rep.  61.5,  the  iip- 
poiutment  of  a  receiver  was  provided  for. 
Alabama:  Scott  v.  Ware,  65  Ala.  174; 
Lehman  v.  Tallassee  Manufacturing  Co.  64 
Ala.  567 ;  Hendrix  v.  American  Mortgage 
Co.  95  Ala.  313;  11  So.  Rep.  213.  Wiscon- 
sin: Schreibcr  v,  Carey,  48  Wis.  208,  4  N. 
W.  Rep.  124  ;  Morris  v.  Branchaud,  52  Wis. 
187,  8  N.  W.  Rep.  883  ;  Finch  v.  Houghton, 
19  Wis.  150.  North  Carolina  :  Kerchner  i'. 
Fairley,  80  N.  C.  24;  Durant  i-.  Crowell, 
97  N.  C.  367,  2  S.  E.  Rep.  541.  Arkansas : 
Price  V.  Dowdy,  34  Ark.  285.  Illinois : 
Haas  I'.  Chicago  Building  Soc.  89  111.  498. 
New  Jersey :  Warwick  v.  Hammell,  32  N. 
J.  Eq.  427.  Michigan  :  Brown  v.  Chase, 
Walker,  43.  Tennessee:  Henshawi;. Wells, 
9  Humph.  568.  Kentucky:  Woolley  v. 
Holt,  14  Bush,  788. 

In  Indiana  it  is  only  necessary  to  show 
that  the  mortgaged  property  is  not  sufficient 

429 


§  1522.]  THE  APPOINTMENT   OF   A   RECEIVER. 

grounds  which  are  generally  conclusive  are,  that  the  mortgagor  is 
allowing  the  security  to  diminish  in  value,  or  the  mortgage  debt  to 
increase,  and  especially  is  allowing  the  interest  on  a  prior  mortgage 
to  accumulate,  and  taxes  to  go  unpaid.^ 

It  is  true  that  in  half  or  more  of  the  States  and  Territories  the 
mortgagee  has  no  legal  rights  that  would  aid  him  in  such  case,  and 
resort  to  equity  is  the  only  remedy  ;  but  a  resort  to  equity  is  some- 
times an  appropriate  remedy  in  those  States  in  which  the  mortgiigee 
has  a  legal  remedy  for  recovering  possession.  In  several  States  there 
is  a  statutory  provision,  in  substantially  the  same  terms,  that,  in  an 
action  by  a  mortgagee  for  the  foreclosure  of  his  mortgage  and  the 
sale  of  the  mortgaged  propert}'^,  a  receiver  may  be  appointed  where 
it  appears  that  the  mortgaged  property  is  in  danger  of  being  lost, 
removed,  or  materially  injured,  or  that  the  condition  of  the  mort- 
gage has  not  been  performed,  and  that  the  property  is  probably 
insufficient  to  discharge  the  mortgage  debt.^  This,  however,  is 
merely  an  enactment  of  the  general  equitable  rule. 

1522.  The  appointment  as  aflfected  by  statutes.  —  As  al- 
read}'^  seen,  by  the  statutory  provisions  of  many  of  the  States  the 
mortgagee  is  not  in  any  case  entitled  to  possession  of  the  mort- 
gaged property  upon  a  default,  but  the  mortgagor  may  still  retain 
possession  until  a  sale  is  made  under  a  decree  in  a  foreclosure  suit, 
and  in  some  States  even  until  the  lapse  of  a  period  of  redemption 
allowed  after  the  sale.  Some  of  these  statutes  are  interpreted  as 
preventing  the  appointment  of  a  receiver  in  any  case  ;  while  others 
are  regarded  as  giving  special  occasion  for  it,  because  they  prevent 
the  mortgagee's  obtaining  possession  and  protecting  his  rights,  as 
he  might  under  a  mortgage  conveying  the  legal  title  at  common 
law.  Even  statutes  precisely  alike  have  in  different  States  been 
interpreted  as  operating  in  opposite  ways  upon  the  generally  re- 
ceived rules  for  the  appointment  of  receivers  in  foreclosure  suits: 
for  while  generally  the  possession  which  the  law  allows  to  the  mort- 

to  discharge  the  mortgage  debt.     It  is  not  Guy  v.  Ide,  6  Cal.  99,  101,  65  Am.  Dec. 

necessary  to  allege  or   prove  the    mortga-  490.     Idaho:    R.    S.    1887,    §   4.329.     Ken- 

gor's  insolvency.     Hursh  v.  Hursh,  99  Ind.  tucky  :  Code  of  Practice  1889,  §  299.     Mon- 

500;  Ponder  i\  Tate,  96  Ind.  330;  Main  v.  tana:  Comp.  Stats.  1887,  p.  116;  Code  of 

Ginthert,  92  Ind.  180;  Merritt  v.  Gibson,  Civ.  Pro.  §  229.     Nebraska:  Comp.  Stats. 

129  Ind.  155,  27  N.  E.  Rep.  136.  1893,  §  266  of  Civ.  Code  ;  Jacobs  v.  Gibson, 

1  Haiigan  v.  Netland  (Minn.),  .53  N.  W.  9  Neb.  380.  New  York:  1  Bliss's  Code  of 
Rep.  873;  Lowell  v.  Doe,  44  Minn.  144,  46  Civ.  Pro.  1890,  §  713.  North  and  South 
N.  W.  Rep.  297  ;  Dunlap  v.  Hedges,  35  W.  Dakota  :  Comp.  Laws  1887,  §  5015.  Ohio  : 
Va.  287,  13  S.  E.  Rep.  656.  R.   S.    1892,    §    5587.     Washington:    2    G. 

2  Arkansas:  Dig.  of  Stats.  1884,  §  5289 ;  S.  1891,  §  326.  Wyoming:  R.  S.  1887, 
California:    Codes  &   Stats.    1885,   §  564;  §2935. 

430 


WHEN  A  RECEIVER   WILL   BE   APPOINTED,  [§  1523. 

gagor  until  a  foreclosure  sale  is  regarded  as  subordinate  to  the  equi- 
table rights  of  the  mortgagee  to  the  rents  and  profits  under  the 
condition  of  things  which  ordinarily  authorizes  the  appointment  of 
a  receiver  in  equity,  and  while  the  statute  confining  the  mortgagee 
to  one  remedy  in  case  of  default,  which  is  an  equitable  suit  for  fore- 
closure and  sale  of  the  property  and  a  judgment  for  any  deficiency, 
is  held  to  be  a  reason  for  adopting  the  practice  of  appointino-  a  re- 
ceiver when  there  were  the  usual  grounds  for  the  appointment,^  in 
California,  on  the  other  hand,  it  is  held  that  by  reason  of  the  stat- 
ute the  practice  of  appointing  a  receiver  to  collect  the  rents  pending 
the  suit  is  not  applicable  ;  that  the  mortgagor  continues  to  be  the 
owner  of  the  estate,  and  is  entitled  to  the  possession  of  it  until  it 
passes  to  some  one  else  under  a  foreclosure  sale.^  In  Michigan, 
also,  the  mortgagor  being  entitled  by  statute  to  tlie  possession  and 
consequently  to  the  rents  and  profits  of  the  mortgaged  premises, 
until  he  is  divested  by  foreclosure  and  sale,  it  is  held  that  it  is  not 
competent  to  cut  short  his  right  in  this  respect  by  the  appoint- 
ment of  a  receiver  in  the  foreclosure  suit ;  ^  at  least  not  until  after 
default."^  In  South  Carolina,  also,  a  mortgagee  is  not  entitled  to 
the  appointment  of  a  receiver  of  the  rents  and  profits  of  the  mort- 
gaged property,  of  which  the  mortgagor  has  possession,  unless  the 
mortgage  expressly  provides  that  the  lien  shall  attach  to  the  rents 
and  profits,  as  well  as  the  land  itself.^ 

1523.  A  subsequent  mortgagee  cannot  have  a  receiver  ap- 
pointed to  the  prejudice  of  a  prior  mortgagee  to  whom  some- 
thing is  due,  if  the  prior  mortgagee  is  in  actual  possession  ;  and 
whenever  an  appointment  is  made,  it  is  without  prejudice  to  the 
right  of  any  such  prior  incumbrancer  to  take  possession.*^     A  re- 

1  New  York :  Hollenbeck  v.  Donnell,  94  foreclosure,  prevents  the  appointmeut  of  a 

N.  Y.  342,29  Hun,  94.     Minnesota :  Lowell  receiver.    Chadbourn  ?;.  Henderson,  2  Bax. 

V.  Doe,  44  Minn.  144,46  N.  W.  Kep.  297.  460. 

Wisconsin :  Schreiber  v.  Carey,  48  Wis.  208,  -2  Quj  v.  Ide,  6  Cal.  99,  65  Am.  Dec.  490. 

4  N.  W.  Rep.  124;  Finch  i-.  Houghton,  19  8  Wagar  v.  Stone,  36  Mich.  364;  Ilazel- 

Wis.   149.     Florida:    Pasco  y.  Gamble,  15  tine  i;.  Granger, 44  Mich.  503,  7  N.  W.  Kep. 

Fla.   562.      Nevada:    Hyman    v.  Kelly,    1  74. 

Nev.  179.     The  court  say,  that  the  legisla-  4  Beecher   v.  Marquette  &  Pacific  Iloll- 

ture  having  forbid  the  mortgagee  pursuing  jng  Mill  Co.  40  Mich.  307. 

the   common   law  remedy   of  ejectment  is  &  Hardin  v.  Hardin,  32  S.   C.  599,  12  S. 

rather  a  reason  for  a  more  liberal  exercise  E.  Rep.  936  ;  Matthews  v.  Preston,  6  Rich, 

of  the   chancellor's  powers   to   protect  the  Eq.  307  ;  Scignious  tr.  Pate,  32  S.  c'.  134,  10 

security.     They  expressly  dissent  from  the  S.  E.  Rep.  880. 

case  in  California  next  cited.     Guy  i,-.  Ide,  6  ^  l  Fisher's  Law  of  Mortg.  408;  Rowe 

Cal.  99,  65   Am.   Dec.   490.     See   statute,  r.  Wood,  2  Jac.  &  W.  553 ;  Berney  v.  Sew- 

§1521.     In  like  manner  an  express  stipula-  ell,  1  Jac.  &  W.   627;  Hiles    v.  Moore,  15 

tion  in  the  mortgage,  that  the  mortgagor  Beav.  175;  i:)avis  ?;.  Marlborough,  2  Swans. 

may  retain  possession  of  the  property  until  108,  137  ;  Dalnier  t;,  Dashwood,  2  Cox,  378  ; 

431 


§  1524.]  THE   APPOINTMENT   OF   A   RECEIVER. 

ceiver  will  be  appointed  upon  the  application  of  a  subsequent  mort- 
gagee, pending  an  action  of  foreclosure,  when  it  appears  that  the 
owner  in  possession  of  the  premises  receives  the  rents,  but  refuses 
to  apply  them  for  the  benefit  of  the  property,  and  that  the  interest 
on  the  first  mortgage,  as  well  as  the  taxes  and  assessments  on  the 
property,  are  unpaid,  especially  if  the  mortgage  contains  a  stipula- 
tion for  the  appointment  of  a  receiver  in  case  of  default.^  The  pos- 
session of  the  prior  mortgagee,  and  his  application  of  the  rents  to 
the  debt  due  him,  may  be  as  much  to  the  advantage  of  the  subse- 
quent mortgagee  as  his  own  would  be.  If  the  subsequent  mort- 
gagee insists  upon  obtaining  possession  himself,  his  only  course  is 
to  redeem  the  estate  from  the  prior  incumbrance  by  paying  it 
off  ;2  and  this  may  be  rendered  necessary  in  case  the  prior  mort- 
gagee in  possession  does  not  apply  the  income  of  the  property  to 
the  payment  of  the  iiiterest  and  principal  of  the  mortgage  debt, 
but  applies  it  to  other  debts  of  the  mortgagor,  or  pays  it  over  to 
him.  A  receiver  may  even  be  appointed  on  the  application  of  the 
mortgagor,  when  his  grantee  or  mortgagee  is  in  possession  and  is 
insolvent,  and  it  is  probable  that  the  rents  and  profits  will  be  lost 
through  his  management.^ 

1524.  Consent  of  prior  mortgagee.  —  It  is  not  necessar}^  as 
was  at  first  held  by  Lord  Thurlow,^  that  the  first  mortgagee's  con- 
sent should  be  obtained  before  a  receiver  can  be  appointed  on  the 
application  of  an  equitable  mortgagee.^  If  he  is  not  in  possession 
the  application  will  be  allowed  ;  and  he  cannot  prevent  it  in  any 
way  except  bj^  taking  possession  himself.^  But,  as  already  stated, 
the  appointment  is  made  without  prejudice  to  those  who  have  prior 
rights  in  the  property.'  If  the  prior  mortgagee  has  the  legal  estate 
he  may  take  possession  at  any  time ;  and  if  he  has  an  equitable 
estate  only,  his  equitable  rights  are  protected  by  the  court.     The 

Norway  v.  E owe,  19  Ves.  144,  153;  Qiiinn  i  Keogh  Manuf.    Co.  v.  "Whiston,  14  N. 

r.  Biittain,  3  Edvv.  314;  Trenton  Banking  Y.  Supp.  344. 

Co.  V.  Woodruff,  3  N.  J.  Eq.  210;  Wiswall  2  Trenton  Banking   Co.  v.    Woodruff,  3 

V.  Sampson,  14  How.  52,  64  ;  Sales  v.  Lusk,  N.  J.  Eq.  210. 

60  Wis.  490.     In  Berney  y.  Sewell,  1  Jac.  3  Williams  v.  Robinson,    16  Conn.    517, 

&  W.  627,  Lord  Eldon  said  :  "I  remember  524  ;  Bolles  v.  Duff,  35  How.  Pr.  481.     See 

a  case  where  it  was  much  discussed  whether  §  1517. 

the  court  would  appoint  a  receiver  when  it  *  Phipps  v.  Bishop  of  Bath,  2  Dick.  608. 

appeared  by  the  bill  that  there  was  a  prior  ^  Bryan  v.  Cormick,  1  Cox,  422. 

morgagee  who  was    not   in    possession.     I  ^  Silver  v.  Bishop  of  Norwich,  3  Swans. 

have  a   note   of    that   case.     There  Lord  112,  note. 

Thurlow  made   the    appointment   without  "  Dalmer  i'.  Dashwood,  2  Cox,  378  ;  Da- 
prejudice  to  the  first  mortgagee's    taking  vis  u.  Marlborough,  2  Swans.  108,  137,  165; 
possession,  and  that  was  afterwards  followed  Norway  v.  Rowe,  19  Ves.  144,  153. 
by  Lord  Kenyon." 

432 


WHEN   A    EECEIVER    WILL   BE   APPOINTED.  [§  1525. 

receiver  appointed  at  the  instance  of  a  junior  incumbrancer  is  enti- 
tled to  receive  the  rents  and  profits  for  the  benefit  of  the  latter, 
until  the  prior  mortgagee  takes  possession,  or  has  a  receiver  in  aid 
of  his  own  suit  to  foreclose.^  But  if  the  prior  mortgrigee  be  made 
a  party  to  the  bill,  the  junior  mortgagee  has  no  exclusive  right  to 
the  income  of  the  receivership.^ 

If  a  receiver  of  a  leasehold  estate  be  appointed,  upon  the  appli- 
cation of  a  junior  mortgagee,  with  power  "to  pay  the  ground-rent 
and  taxes,"  upon  a  subsequent  foreclosure  of  the  prior  mortgage, 
the  receiver  is  not  bound  to  appl}^  a  balance  of  rents  in  his  hands 
to  the  payment  of  accrued  taxes.  The  order  as  to  I'ents  and  taxes 
is  permissive,  not  mandatory  ;  and  the  junior  mortgagee,  having 
by  diligence  acquired  a  specific  lien  upon  the  rents  superior  to  the 
equities  of  the  prior  mortgagee,  is  entitled  to  retain  and  apply 
them  upon  his  mortgage.^  It  is  held,  however,  that  if  the  prior 
mortgagee  commences  proceedings  in  a  different  court,  a  receiver 
already  appointed  by  another  court,  on  the  application  of  a  junior 
mortgagee,  will  not  be  interfered  with  while  such  mortgagee  is  in 
actual  possession,  and  administering  the  property  under  the  direc- 
tions of  that  court.* 

1525.  So  long  as  anything  is  due  the  prior  mortgagee,  how- 
ever small  the  amount,  the  possession  will  not  be  taken  from 
him.^  This  is  stated  by  Lord  Eldon  very  forcibly  :  "  If  you  recol- 
lect, in  Mr.  Beckford's  case  I  went  to  the  very  utmost ;  I  said  then 
that  if  Mr.  Beckford  would  swear  that  there  was  sixpence  due  to 
him,  I  would  not  take  away  the  possession  from  him.  If  there 
is  anything  due,  I  cannot  substitute  another  security  for  that  which 
the  mortgagee  has  contracted  for.  I  know  no  case  where  the  court 
has  appointed  a  receiver  against  a  mortgagee  in  possession,  unless 
the  parties  making  the  application  will  pay  him  off,  and  pay  him 
according  to  his  demand   as  he  states  it  himself."  ^    If  he  insists  by 

^  Sanders  v.  Lisle,  Ir.  Rep.  4   Eq.  43;  '^  Ranney  i;.  Peyser,  S3  N.  Y.  1,  reversing 

Washington  Life  Ins.  Co.  v.  Fltischauer,  10  20  Hun,  11. 

Hun,  117  ;  Howell  v.  Ripley,  10  Paige,  43  ;  *  Young  v.  Mont.  &  Eufaula  R.  R.  Co.  3 

Post  V.  Dorr,  4  Edw.  Ch.  412  ;  Dunlapr.  Am.  L.  T.  R.  N.  S.  91,2  Woods,  606. 

Hedges,  35  W.  Va.  287,  13  S.  E.  Rep.  656.  ^  Chambers  v.  Goldwin,  cited  and  com- 

In   Virginia    a    receiver  is  regarded    as  mented  upon  in  Quarrell  v.  Beckford,   13 

acting  in  the  interest  of  all  parties,  and  no  Ves.  377;    Hiles  v.  Moore,  1.5  Beav.  175; 

one  having  a  right  prior  to   that   of    the  Codrington  v.  Parker,  16  Ves.  469 ;  Faulk- 

plaintiff  can  afterwards  take  possession.    He  ener  v.  Daniel,  10  L.  J.  N.  S.  Ch.  33;  Tren- 

Miust  finally  account  according  to  the  pri-  ton  Banking  Co.  v.  Woodruff,  3  N.  J.  Eq. 

iirities  of  the  different  incumbrancers.   Bev-  210.     In  this  last  case  the  priority  of  the 

erley  i'.  Brooke  4  Gratt.  187.  first  mortgagee  in  po.ssession  was  contested. 

■'  Miltenberger    v.    Logansi)ort  Ry.    Co.  "^  Berney  v.  Sewell,  1  Jac.  &  W.  627. 
106  U.  S.  286,  1  Sup.  Ct.  Rep.  140. 

VOL.  II.              28  433 


§  1526.]  THE    APPOINTMENT    OF  A   RECEIVER. 

his  answer  that  he  has  not  been  fully  paid,  the  court  will  not  upon 
hearing  of  the  motion  try  the  question  whether  any  balance  is  due.^ 
But  if  he  refuses  to  accept  what  is  due,  or  will  not  swear  that 
something  is  due,  a  receiver  will  be  appointed ;  ^  and  it  being  his 
business  to  keep  his  accounts,  if  these  be  so  incomplete  that  he  can- 
not determine  whether  anything  is  due,  the  court  may  assume  that 
nothing  is  due  and  act  accordingly.^ 

1526.  As  a  general  rule,  the  appointment  cannot  be  made 
until  a  bill  has  been  filed  for  foreclosure  and  is  pending,  and  the 
merits  of  the  case  have  been  disclosed  by  the  defendant's  answer;* 
though,  under  circumstances  rendering  an  immediate  appointment 
necessary  to  prevent  threatened  loss  and  injury  to  the  property,  an 
appointment  may  be  made  before  the  defendant's  appearance,^  and 
even  before  service  upon  him,^  and  especially  if  his  residence  be  un- 
known.'^ The  appointment  may  be  made  at  the  hearing,  though 
not  prayed  for  by  the  bill,  if  the  facts  stated  in  it  are  sufficient 
to  authorize  it.^  The  facts  may  be  shown  by  affidavit.^  On  pe- 
tition supported  by  the  proper  proof,  the  appointment  may  be 
made  at  any  time  during  the  pendency  of  the  suit.  It  may  even 
be  made  after  judgment;  and  the  fact  that  the  complaint  does 
not  state  facts  authorizing  the  appointment  is  no  objection. ^^  It 
is  against  the  policy  of  the  law  that  a  mortgagee  should  receive 
the  appointment,  and  if  he  does  he  is  not  entitled  to  compensa- 
tion." 

Notice  of  the  application  for  the  appointment  of  a  receiver  should, 
if  practicable,  be  given  to  the  mortgagor  and  other  parties  in  inter- 
est.i2  The  question  of  notice  cannot  of  course  be  raised  by  a  party 
who  has  appeared  and  resisted  the  order.^^     There  are  many  circum- 

1  Rowe  V.  Wood,  2  Jac.  &  W.  553.  Adair  v.  Wright,  16  Iowa,  385  ;  Connelly 

2  Berney  r.  Sewell,  1  Jac.  &  W.  627.  v.  Dickson,  76  Ind.  440. 

'^  Codrington    v.   Parker,    16   Ves.  469;  ^  Commercial  and  Savings  Bank  of  San 

Hiles  V.  Moore,  15Beav.  175.  Jose  v.  Corbett,  5  Sawyer,  172. 

*  Astor  V.  Turner,  2  Barb.  444,  3  How.  i'^  Schreiber  v.  Carey,  48  Wis.  208,  4  N. 

Pr.    225,   11    Paige,  436;    Kattenstroth    v.  W.   Eep.    124;   Haas  v.  Chicago  Building 

Astor  Bank,  2  Duer,  632  ;  Anon.   1   Atk.  Soc.  89  III.  498. 

578;  Morrison  v.  Buckner,  Hempst.    442;  ii  Langstaffe   v.  Fenwick,  10  Ves.  405; 

Hardy  v.  McClellan,  53  Miss.  507.  Scott  v.  Brest,  2  T.  R.  238. 

^  Ex  parte  Whitfield,  2  Atk.  315;  Mae-  i- Jones  onCorp.  Mortg.  and  Bonds,  §  454. 

den  V.  Sealey,  6  Hare,  620 ;  Caillard  v.  Call-  Notice  may  be  required  by  statute,  as   in 

lard,  25  Beav.  512  ;  McCarthy  y.  Peake,  9  Nebraska.      Comp.    Stats.    1893,    Code   of 

Abb.  Pr.  164.  Civ.  Pro.  §  267  ;  and  in  such  case  an  order 

5  Barrett  v.  Mitchell,  5  Ir.  Eq.  501.  made  without  notice  is  void.     Johnson   v. 

'  Dowling  V.  Hudson,  14  Beav.  423.  Powers,  21  Neb.  292,  32  N.  W.  Rep.  62. 

^  Malcolm    v.   Montgomery,    2    Molloy,  i*  Haas  v.  Chicago  Building  Soc.  89  111. 

500;  Osborne  I'.  Harvey,  1  Young  &  C.  C.  C.  498.     In  Michigan  a  court  of  equity  can- 

116.     See  Barlow  r.  Gains,  8    Beav.  329;  not   make  an  ex  parte  order  appointing  a 

434 


WHEN  A  RECEIVER  WILL  BE  APPOINTED.   [§§  1527,  1528. 

stances  under  which  the  appointment  of  a  receiver  may  be  made 
on  an  ex  |9a?-^e  application  without  notice.  Such  appointment  was 
made  where  it  appeared  that  the  mortgagor  had  in  bad  faith  sold 
the  mortgaged  propert}'  ;  that  the  vendee  refused  to  attorn  and 
deliver  up  possession  to  the  mortgagee  ;  that  the  mortgagor  and 
vendee  were  both  insolvent ;  that  the  vendee  had  removed  a  portion 
of  the  crops,  and  there  was  danger  of  further  loss  of  crops  ;  and 
that  the  security  was  inadequate.^ 

1527.  Defences  to  the  application.  —  To  prevent  the  appoint- 
ment of  a  receiver,  the  mortgagor  must  either  make  a  special  affi- 
davit of  merits,  or  show  that  the  property  is  sufficient  to  secure 
the  mortgage.2  His  affidavit  that  he  has  a  good  defence,  without 
stating  what  it  is,  or  stating  it  vaguely,  is  no  answer  to  the  applica- 
tion for  a  receiver.^  If  he  has  conveyed  the  land  subject  to  the 
mortgage,  he  is  in  no  position  to  oppose  the  appointment.^  O'lly 
those  whose  rights  would  be  affected  by  the  appointment  can  oppose 
it.  Upon  a  bill  to  restrain  waste  by  the  mortgagor,  there  is  no  oc- 
casion for  a  receiver;  the  injunction  is  sufficient.^ 

After  a  receiver  has  once  been  appointed  without  opposition 
made  at  the  time,  an  objection  raised  at  a  later  stage  of  the 
case  that  the  application  was  improperly  allowed  will  not  be  re- 
garded.*^ 

1528.  The  application  should  show  the  defendant  in  posses- 
sion, and  notice  of  the  application  should  be  given  him  unless  he 
has  defaulted  in  the  action,^  inasmuch  as  in  general  the  court  is 
warranted  in  appointing  a  receiver  only  when  the  property  is  in 
possession  of  a  party  to  the  foreclosure  suit,  either  by  himselt'  or  his 
tenant.  If  the  premises  are  in  possession  of  a  tenant  who  is  not 
himself  a  party  to  the  suit,  he  is  not  disturbed  in  his  possession,  but 
is  directed  to  attorn  to  the  receiver.^  When  the  tenant  is  before 
the  court,  the  receiver  is  appointed  without  restriction.^ 

receiver  in  a  foreclosure  suit,  although  the  dock,  2  MoUoy,  531;  Leahy  v.   Arthur,  1 

parties  agree  thereto    by  the  terms  of  the  Hogan,  92. 

mortgage.     Ilnzeltine  v.  Granger,  44  Mich.  3  Sea  Insurance  Co.  u.  Stebbins,  8  Paige, 

50.3,  7  N.  W.  Kcp.  74.  565     MacKellar  v.  Rogers,  20  J.  &  S.  360. 

1  Hendrix  v.  Am.  Mortg.  Co.   95  Ala.  313,  *  Wall  St.  Fire  Ins.  Co.  v.  Loud,  20  How. 

11  So.  Rep.  213.    See,  also,  Ashurst  v.  Leh-  Pr.  95. 

man,  86  Ala.  370,  5  So.  Rep.  731  ;  Heard  v.  ^  Robinson  v.  Preswick,  3  Edw.  246. 

Murray,  93  Ala.  127,  9  So.  Rep.  514;  Sims  «  Post  v.  Dorr,  4  Edw.  412. 

V.  Adams,  78  Ala.  395.     The  case  of  Dol-  ''  High  on  Receivers,  §  660;  Sea  Insiir- 

lins  V.  Lindsey,  89  Ala.  217,  7  So.  Rep.  234.  ance  Co.  v.  Stebbins,  8  Paige,  565. 

-  Sea  Ins.  Co.  v.  Stebbins,  8  Paige,  565 ;  ^  Sea  Insurance  Co.  c.  Stebbins,  8  Paige, 

P.ancker  v.  Hitchcock,  1  Ch.  Dec.  88;  Lof-  565  ;  Smith  v.  Tiffany,  13  Hun,  671. 

sky  V.  Maujer,  3  Sandf.  Ch.  69  ;  Darcy  j;.  ^  Keep  v.  Mich.  Lake  Shore  R.  R.  Co.  6 

HIakc,  1   Mollov,  247  ;    Shepherd   v.   Mur-  Ciiicago  Leg.  News,  101. 

435 


§§  1529-1531.]       THE    APPOINTMENT    OF   A    RECEIVER. 

There  can  be  no  appointment  of  a  receiver  of  mortgaged  lands 
after  an  assignee  in  bankruptcy  of  the  estate  of  the  owner  of  the 
equity  of  redemption  has  been  appointed  and  has  taken  possession 
of  the  mortgaged  property.  The  assignee  is  clothed  with  functions 
similar  to  those  of  a  receiver.^ 

1529.  The  plaintiff  must  show  by  afl&davit  the  amount  due 
after  the  allowance  of  all  just  credits,  if  decree  has  been  taken  pro 
confesso.  The  statement  in  the  bill  is  not  enough.'-^  The  affida- 
vit must  also  show  that  the  defendant  is  in  possession.  If  the 
amount  actually  due  is  in  dispute,  and  the  answer  denies  the  allega- 
tions as  to  the  inadequacy  of  the  security,  the  court  will  not  inter- 
fere with  the  possession.^ 

1530.  Generally  the  mortgage  debt  must  be  already  due  to 
entitle  the  mortgagee  to  have  a  receiver  appointed  ;  at  any  rate 
there  must  have  been  such  a  default  as  entitles  him  to  commence  an 
action  to  foreclose  the  mortgage.*  If  a  mortgage  securing  several 
notes  provides  that  all  the  notes  shall  become  due  on  default  in  the 
payment  of  any  of  them,  on  such  default  the  mortgagee  may  fore- 
close for  the  notes  due,  or  may  declare  them  all  due,  and  foreclose 
for  the  entire  debt,  but  he  cannot  have  a  receiver  appointed  to  take 
charge  of  the  property  and  collect  rents  pending  the  maturity  of 
all  the  notes,  and  then  have  foreclosure.^  Yet  a  receiver  has  been 
granted  vmder  peculiar  circumstances,  when  the  mortgagee  was  not 
entitled  to  a  foreclosure,  and  merely  to  keep  down  the  interest 
on  the  mortgage  ;  ^  as  in  a  case  where  the  principal  debt  did  not 
become  due  until  after  the  mortgagor's  death.'^  If  the  property 
consists  of  separate  parcels,  or  can  be  divided  without  injury  to  the 
parties  interested,  upon  the  maturity  of  a  part  of  the  debt  a  re- 
ceivership of  one  of  the  parcels  may  be  granted.^ 

1531.  Under  circumstances  showing  an  urgent  occasion  for 
it,  a  receiver  has  been  appointed  after  the  decree  for  foreclos- 

1  In  re  Bennett,  2  Hughes,  156.  whether  a  receiver  will  be  appointed  of  the 

■■^  Rogers  v.  Newton,  2  Ir.  Eq.  40.  entire  property.     Quincy  v.  Cheeseman,  4 

3  CiiUanani;.  Shaw,  19lowa,  183.  S;mdf.    Ch.   405.      Wisconsin:    Morris    v. 

*  Alabama  :  Phillips  v.  Taylor  (Ala.),  11  Branchaud,  52  Wis.  187,  8  N.  W.  Rep.  883. 

So.   Rep.  323,  quoting  text.     New  York:  ^  Phillips  i;.  Taylor   (Ala.),  11  So.  Rep. 

Bank  of  Ogdensburg  v.  Arnold,  5  Paige,  38;  323. 

Lofsky  V.  Maujer,  3  Sandf.  Ch.  69  ;  Quincy  '^  Buchanan  v.  Berkshire  L.  Ins.  Co.  96 

V.  Clieeseman,  4  Sandf.  Ch.   405;  Ilollen-  Ind.  510,  531. 

beck  V.  Donnell,  94  N.  Y.  342.     That  only  ''  Burrowes  i-.  Molloy,  2  Jo.  &  Lat.  521  ; 

a  part  of  the  debt  is  due,  and  that  the  prem-  8  Ir.  Eq.  482  ;  Newman  v.  Newman,  2  Bro. 

ises  can  be  sold  in  parcels,  so  that  a  sale  of  C.  C.  92,  note  6  ;  Latimer  v.  Moore,  4  Mc- 

part  will  satisfy  the  debt  in  arrear,  are  cir-  Lean,  110. 

curastances  to  be  considered  in  determining  ^  Hollenbeck  v.  Donnell,  94  N.  Y.  342. 

436 


WHEN   A    RPXEIVER   WILL   BE   APPOINTED.  [§  1531  a. 

ure,  and  even  after  appeal,  as  where  there  was  danger  that  a  tenant 
in  possession  might  by  further  dehiy  acquire  rights  by  adverse 
possession.!  Generally  the  appointment  does  not  affect  the  rights 
of  persons  who  are  not  parties  to  the  suit,  and  will  not  be  made 
unless  the  person  in  possession  is  either  a  party  to  the  suit  or  his 
tenant.^ 

Where  a  mortgage  provided  that  the  mortgagee  upon  default 
might  take  possession  of  the  property  and  rent  it  without  losing  his 
remedy  by  foreclosure,  and  the  mortgagee  without  taking  possession 
obtained  a  decree  of  foreclosure,  it  was  held  that  it  was  then  too 
late  to  apply  for  the  appointment  of  a  receiver,  the  mortgagor  hav- 
ing the  right  to  redeem  within  a  limited  period.  The  mortgagor  by 
the  terms  of  the  mortgage  bai'gained  away  his  right  of  redemption 
only  in  case  the  mortgagee  should  take  possession  before  foreclosure.^ 
A  provision  in  a  mortgage  that  the  mortgagee  shall  be  entitled  to 
the  appointment  of  a  receiver  upon  the  commencement  of  a  fore- 
closure suit,  to  take  and  hold  the  rents  and  profits  for  his  benefit, 
does  not  entitle  him  to  such  appointment  at  the  time  he  takes  his 
decree.* 

1531  a.  A  receiver  may  be  appointed  after  a  foreclosure  sale 
to  protect  the  rents  and  profits  during  the  time  allowed  for  re- 
demption. In  Indiana,  where  such  a  period  of  one  year  after  sale 
is  allowed  for  redemption,  it  is  provided  by  statute  that  a  receiver 
may  be  appointed  to  protect  or  preserve,  during  this  time,  the  land 
sold,  and  to  secure  to  the  person  entitled  thereto  the  rents  and 
profits  thereof.^  Where,  therefore,  on  foreclosure  of  a  mortgtfge, 
the  land  has  been  sold  to  the  mortgagee  for  less  than  his  debt,  and 
the  security  is  shown  to  be  inadequate  and  the  debtor  insolvent,  a 
receiver  may  be  appointed  to  collect  and  hold,  during  the  year 
allowed  for  redemption,  the  rents  and  profits  of  such  parts  of  the 
land  as  are  in  the  possession  of  the  mortgagor's  tenants.^  The  re- 
demption statute  gives  to  the  debtor  no  new  additional  title  or  right, 
but  simply  extends  for  one  year  his  existing  rights ;  and  no  incident 

1  Thomas  v.  Davies,  11  Beav.  29;  Hack-  debtor  of  the  right  to  retain  possession  of 
ett  w.  Snow,  10  Ir.  Eq.  220;  Brinkman  v.  the  property  nntil  the  redemption  has  ex- 
Ritzinger,  82  Ind.  358.  pired.     Per  Rothrock,  J. 

2  Sea  Insurance  Co.  v.  Stebbins,  8  Paige,  <  Paine  v.  McEIroy,  73  Iowa,  81,  34  N. 
565.     And  see  Zeiter  v.  Bowman,  6  Barb.  W.  Rep.  615. 

133.  6  R  s    1881,  §  1222. 

«  Swan  V.  Mitchell,   82  Iowa,  307,  47  N.  <"'  Merritt  v.  Gibson,  129  Ind.  155,  27  N. 

W.  Rep.  1042.     The  right  of  redemption  is  E.  Rep.  136  ;  Connelly  v.   Dickson,  76  Ind. 

in  the  nature  of  a  stay  law,  and  courts  ought  440.     See,  also,  Davis  w.  Newcomb,  72  Ind. 

to  require  a  very  clear  showing  that  it  has  413  ;  Ridgeway  v.  Bank,  78  Ind.  119  ;  and 

been  bargained  away  before  depriving  the  Travellers'  Ins.  Co.  v.  Brouse,  83  Ind.  62. 

437 


§§  1532,  1533.]   THE  APPOINTMENT  OF  A  RECEIVER. 

attaches  to  the  debtor's  possession  by  reason  of  the  sale  that  places 
it  beyond  the  reach  of  a- court  of  equity.^ 

A  similar  decision  was  made  in  Wisconsin  under  a  law  allowing 
redemption  after  a  sale  ;  ^  and  under  the  present  statute  of  that  State, 
which,  instead  of  allowing  a  year  after  sale  for  redemption  before  a 
deed  can  be  made,  allows  a  year  after  the  decree  foreclosing  the 
mortgage  before  a  sale  can  be  made,  a  receiver  may  be  appointed  to 
receive  the  rents  and  profits  during  that  period.^  Where,  however, 
a  statute  allows  the  mortgagor  to  remain  in  possession  of  the  land 
until  the  expiration  of  the  time  allowed  for  redemption,  although 
the  statute  also  provides  that  the  purchaser,  from  the  time  of  the 
sale  until  redemption,  is  entitled  to  receive  from  the  tenant  in  pos- 
session the  rents  of  the  property  sold,  or  the  value  of  the  use  and 
occupation  thereof,  a  receiver  will  not  be  appointed  for  the  premises 
before  the  expiration  of  the  period  allowed  for  redemption.* 

1532.  To  warrant  an  appointment  of  a  receiver  it  must  be 
shown  both  that  the  property  itself  is  an  inadequate  security  and 
that  the  debt  or  tlie  deficiency  after  the  application  of  the  proceeds 
of  the  security  could  not  be  collected  of  the  mortgagor  or  other 
person  liable  for  it.^  The  property  may  be  inadequate  security  for 
all  the  incumbrances  upon  it,  and  yet  be  sufficient  for  the  particular 
mortgage  which  is  the  subject  of  the  foreclosure  suit.^ 

1533.  There  may  be  other  and  additional  grounds  for  the 
application  ;  but  these  two  are  the  principal  ones,  which  are  es- 
sential in  every  case  ;  and  usually  no  others  are  essential  if  these 
are  'fully  and  clearly  alleged  and  approved.  Coupled  with  these 
there  may  be  strong  grounds  for  interference  in  the  fact  that  the 
taxes  have  been  suffered  to  remain  unpaid  and  the  property  to  be 

1  Merritt  v.  Gibson,  129  Ind.  155,  27  N.  385  ;  Paine  v.  McElroy,  73  Iowa,  81,  34  N. 
E.  Rep.  136,  per  McBiide,  J.  VV.  Rep.  615  ;  Swan  v.  Mitchell,  82  Iowa, 

2  Finch u.  Houghton,  19  Wis.  149.  307,  47  N.  W.   Rep.   1042.      Mississippi: 
3Schreiber  v.  Carey,  48  Wis.  208,  4  N.    Myers  v.  Estell,  48  Miss.  372,  403. 

W.  Rep.  124.  ^  Warner  v.  Gouverneur,  1  Barb.  36,  per 
*  West  V.  Conant  (Cal.),  34  Pac.  Rep.  Edmonds,  J.  "  The  allegation  is  that  they 
705 ;  White  v.  Griggs,  54  Iowa,  650,  7  N.  are  not  an  adequate  security  for  '  all  just 
W.  Rep.  125.  incumbrances'  on  them.  All  of  the  just  in- 
5  United  States:  Keep  v.  Mich.  Lake  cumbrances,  it  would  seem,  amount  to  near 
Shore  R.  R.  Co.  6  Chicago  L.  N.  101  ;  Pul-  $70,000,  while  the  claim  of  the  defendants 
Ian  t'.  Cincinnati  &  Chicago  Air  Line  R.  is  not  more  than  half  that  sum.  And  while 
R.  Co.  4  Biss.  35  ;  Morrison  v.  Buckner,  the  defendants  do  not  say  whether  the 
Hempst.  442.  New  York  :  Astor  v.  Turner,  premises  are  or  are  not  adequate  security 
2  Barb.  444  ;  Quincy  v.  Cheeseman,  4  Sandf.  for  the  amount  due  to  them,  the  mortgagor 
Ch.  405;  Sea  Insurance  Co.  v.  Stebbins,  8  on  the  other  hand  avers  that  they  are  suffi- 
Paige,  565.  Nevada :  Hyman  v.  Kelly,  1  cient  for  that  amount.  There  is,  therefore, 
Nev.  179.  Michigan:  Brown  v.  Chase,  no  ground  for  the  appointment  of  a  re- 
Walk.  43.   Iowa  :  Adair  v.  Wright,  16  Iowa,  ceiver." 

438 


DUTIES   AND   POWERS   OF   A    RECEIVER.       [§§  1534,  1535. 

sold  to  satisfy  them,  and  that  the  insurance  has  been  neglected  ;  ^ 
or  that  there  is  a  contest  as  to  whether  a  large  portion  of  the  prop- 
erty claimed  under  the  mortgage  is  really  covered  by  it ;  -  or  that 
there  is  fraud  or  bad  faith  on  the  mortgagor's  part  in  the  manage- 
ment of  the  property,  as  in  appropriating  the  rents  and  profits  to 
other  purposes  than  keeping  down  the  interest  on  the  incumbrances, 
or  in  permitting  the  property  to  depreciate  and  the  buildings  to  go 
to  decay ,3  The  fact  that  the  parties  have  agreed  that,  in  case  of  a 
default,  a  receiver  shall  be  appointed,  should  have  weight  when  an 
application  for  a  receiver  is  niade.'^ 

Where  a  mortgagor  has  obtained  an  injunction  to  restrain  the 
sale  of  the  mortgaged  property  until  certain  counter-claims  can  be 
passed  upon  and  the  sum  really  due  ascertained,  the  mortgagee  is 
entitled  to  have  a  receiver  appointed  to  take  charge  of  the  property 
and  secure  the  rents  and  profits,  provided  these  are  in  danger  of 
being  lost  in  the  mean  time.^ 

1534,  In  determining  whether  the  security  is  adequate,  the 
proper  criterion  in  respect  to  city  property  is  the  rental  of  it 
rather  than  the  price  it  would  be  likely  to  sell  for.  The  income 
of  improved  property  in  large  towns  is  considered  a  fair  test  of  its 
value  as  an  investment.^  Of  course  there  may  be  circumstances 
which  in  particular  cases  will  modify  or  make  inapplicable  such  a 
test. 

II.   Duties  and  Powers  of  a  Receiver. 

1535.  A  receiver  is  the  representative  of  all  parties  in  in- 
terest ;  of  the  mortgagee,  the  mortgagor,  and  all  holding  under 
them,  and  all  having  rights  superior  to  theirs.  The  receiver  of  a 
bankrupt  corporation  represents  not  only  the  mortgagees,  but  the 
assignees  in  bankruptcy,  the  creditors  and  stockholders  as  well.' 
He  is  not  allowed  to  act  with  reference  to  the  mortgaged  property 
in  any  other  relation  inconsistent  with  his  duties  as  receiver.  If  he 
is  also  mortgagee,  he  will  not  be  permitted  to  deal  with  the  prop- 
erty in  any  way  inconsistent  with  his  duty  as  a  receiver  acting  in 

1  Wall  St.  Fire  Ins.  Co.  v.  Loud,  20  How.    Eq.  449 ;  Chetwood  i'.  Coffiu,  30  N.  J.  Eq. 
Pr.  95 ;  Eslava  v.  Crampton,  CI  Ala.  .507  ;    4.50. 

Stockman   v.  Wallis,   30   N.   J.  Eq.   449;  *  Keogh  Manuf.  Co.  i'.  Whistou,  14  N.  Y. 

Chetwood  v.  Coffin,  30  N.  J.  Eq.  450.  Supp.  344. 

2  Wall  St.  Fire  Ins.  Co.  v.  Loud,  20  How.  &  Oldham   v.   First   Nat.  Bank  of   Wil- 
I'r-  95.  mington,  84  N.  C.  304. 

^  Per  Williamson,  Chancellor,  in  Cortle-        •'  Shotwell  v.  Smith,  3  Edw.  588. 
yeu  i;.  Hathaway,  11  N.  J.  Ch.  39,  64  Am.        7  Sutherland  v.  Lake  Superior  Ship  Ca- 
Dec,  478;    Stockman  v.  Wallis,  30  N.  J.     nal  R.   &  L  Co.  9  N.  Bank.  K.  298,307; 

Davis  V.  Gray,  16  Wall.  203,217. 
439 


§  1535.]  THE    APPOINTMENT    OF    A   RECEIVER. 

the  interest  of  all  parties  concerned.^  But  a  receiver  of  a  corpora- 
tion empowered  to  enforce  a  mortgage  belonging  to  it  may  bid  off 
the  property  to  save  a  sacrifice  of  it.  He  succeeds  to  the  rights 
and  powers  of  the  company  in  this  respect.^ 

He  should  not  involve  the  estate  in  any  expense,  even  for  repairs, 
without  the  authority  of  the  court ;  nor,  without  such  sanction, 
bring  suits  or  defend  them.^  He  should  always  apply  to  the  court 
before  exercising  unusual  discretion.^ 

His  possession  is  the  possession  of  the  court,  and  without  its  au- 
thority no  one  can  directly  or  indirectly  interfere  with  the  property.^ 
Like  a  trustee,  he  is  bound  to  exercise  such  care  over  the  property 
as  a  prudent  man  would  take  of  his  own.^ 

A  receiver  who  acts  in  good  faith,  but  under  a  mistake  as  to  the 
extent  of  his  powers,  is  not,  it  would  seem,  liable  for  his  acts.  But 
if  he  wilfully  and  corruptly  exceeds  his  powers,  he  would  be  liable 
for  the  actual  damage  sustained  by  his  conduct."  The  receiver  of 
a  railroad  may  be  empowered  by  the  court  to  borrow  money  to  com- 
plete unfinished  portions  of  the  road,  to  issue  bonds,  and  to  make 
them  a  first  lien  upon  the  property  of  the  road.^ 

A  receiver  cannot  be  sued  without  leave  of  the  court  which  ap- 
pointed him  first  obtained.  That  court  has  jurisdiction  of  all  mat- 
ters in  controversy  affecting  the  property  in  the  hands  of  the 
receiver,  and  may  draw  to  itself  all  controversies  to  which  the 
receiver  can  be  made  a  party.  This  court  is  not  compelled  to  take 
jurisdiction  of  all  such  matters,  but  may  assert  its  right  to  do  so. 
By  acting  upon  the  parties  it  may  prevent  their  proceeding  in  other 
courts  against  the  receivers.  If  leave  be  not  obtained  upon  motion 
to  prosecute  an  independent  suit  at  law  or  in  equit}'  against  a  receiver, 
the  proper  mode  of  proceeding  is  to  apply  for  the  appropriate  rem- 
edy against  the  receiver  by  petition  in  the  cause  in  which  the  re- 
ceiver was  appointed,  and  not  by  original  bill.  Thus  a  bill  in  equity 
does  not  lie  against  a  receiver  to  restrain  him  from  foreclosing  a 

1  BoUes  V.  Duff,  54  Barb.  215,  37  How.  ^  Russell  y.  East  Anglian  Ry.  Co.  3  Mac. 
Pr.  162;  Iddings  i;.  Bruen,  4  Sandf.  Ch.  &  G.  1.04;  Ames  v.  Birkenhead  Docks,  20 
417.  Beav.   332,   353;  Noe   v.   Gibson,  7  Paige, 

2  Jacobs  V.  Tiirpin,  83  III.  424.  513  ;  Albany  City  Bank  v.  Schermerhorn, 

3  Wynn  v.  Newborouj.'h,  3  Bro.  C.  C.  88;  9  Paige,  372,  38  Am.  Dec.  551. 

Ward  V.  Swift,  6  Hare,  309,  313;  Swaby  v.  6  Per    Lord  Eldon,  1  Jac.  &  W.  247,  1 

Dickon,  5  Sim.  629,  631  ;  Cowdrey  v.  Gal-  Fisher's  Law  of   Mort.  444. 

veston  R.  R.  Co.  93  U.  S.  352  ;  Ketcbum  v.  ^  Stanton  v.  Ala.  &  Chattanooga  R.  R. 

Pacific  R.  R.  Co.  3  Cent.'L.  J.  380  ;  Wyck-  Co.  2  Woods,  506,  518. 

off  I'.  Scofield,  103  N.  Y.  630.  8  Kennedy  v.  St.  Paul  &  Pacific   R.  R. 

*  Parker  v.  Browning,  8  Paige,  388,  35  Co.  2  Dill.  448. 
Am.  Dec.  717. 

440 


DUTIES   AND   POWERS   OF   A   RECEIVER.  [§  1536. 

mortgage  by  sale  under  a  power  on  the  ground  that  the  mort- 
gage was  obtained  by  fraudulent  representations  and  is  void,  but 
relief  should  be  sought  by  petition  in  the  cause  in  which  the  re- 
ceivers were  appointed.^  A  mortgagee  who  seeks  relief  against 
the  purchaser  of  property  sold  on  foreclosure  by  a  receiver,  upon 
the  ground  of  collusion  with  the  receiver,  should  proceed  in  the 
action  wherein  the  receiver  was  appointed,  and  not  by  an  indepen- 
dent suit.  The  suit  must  certainly  be  in  the  court  in  which  the 
receiver  was  appointed,  or  by  leave  of  that  court.^ 

1536.  Receiver's  claim  to  the  rents.  —  By  the  appointment 
of  a  receiver  the  mortgagee  obtains  an  equitable  claim  not  only 
upon  the  rents  and  profits  actually  due  at  the  time,  but  also  upon 
the  rents  to  accrue  ;  ^  and  his  right  to  them  is  superior  to  that  of 
the  mortgagor's  assignee  in  bankruptcy,*  or  to  that  of  any  one 
else  claiming  under  the  mortgagor,  as,  for  instance,  his  grantee 
who  has  bought  subject  to  the  mortgage,  even  when  he  has  taken 
a  note  with  personal  security  for  the  rent.^  But  the  receiver  cannot 
call  upon  the  mortgagor,  or  a  junior  mortgagee,  to  refund  rents 
collected  before  the  ajDpointment  of  the  receiver ;  ^  nor  is  the  receiver 
entitled  to  receive  such  rents.''  All  rents  and  profits  tiiat  come 
into  the  hands  of  the  receiver  are  dedicated,  along  with  the  corpus 
of  the  funds  brought  within  the  domain  of  the  court,  to  the  satis- 
faction of  the  lien.^ 

The  mortgagor  cannot  evade  the  effect  of  such  appointment  by 
leasing  the  mortgaged  land  and  taking  the  rent  in  advance.  If 
such  lease  is  made  pending  a  foreclosure  suit,  the  tenant  stands 
in  the  position  of  a  purchaser  or  lessee  i^^ndente  lite  from  the  mort- 
gagor, with  constructive  notice  of  the  action  to  foreclose  by  the 
filing  of  the  notice  of  lis  pendens^  and  takes  subject  to  whatever 
order  or  decree  the  court  may  lawfully  make  affecting  either  the 
title  or  possession.  He  could  not  get  any  better  right  than  his  les- 
sor, the  mortgagor,  had.^ 

1  Porter  V.  Kingman,  126  Mass.  141.  ^  Howell  v.  Ripley,   10  Paige  43  ;    Post 

2  Lock  wood  V.  Reese,  76  Wis.  404,45  N.  v.  Dorr,  4  Edw.  412;  Johnston  v.  Riddle, 
W.  Rep.  31.3;  Noonan  v.  McNab,  30  Wis.  70  Ala.  219;  Rider  v.  Bagley,  84  N.  Y. 
277;  In  re  Day,  34  Wis.  638;  Milwaukee  461. 

&  St.  P.  R.  U.  Co.  u.  Milwaukee  &  M.  R.R.  7  Noyes  v.  Rich,  52  Me.  115;   Argall  v. 

Co.  20  Wis.  165.  Pitts,  78  N.  Y.  239;  Wyckoff  v.  Scofield, 

3  Conoveru.  Grover,  31  N.  J.  Eq.  539;  98  N.  Y.  475;  Keyser  v.  Hitz,  4  Mackey, 
Rider  v.   Bagley,   84  N.  Y.    461  ;    Gaynor  179. 

V.  Blewett,  82   Wis.  313,  52  N.   W.   Rep.  »  Pepper  v.  Shepherd,  4  Mackey,  269  ; 

313.  Keyser  v.  Hitz,  4  Mackey,  179;  William- 

*  Hayes  v.  Dickinson,  9  Hun,  277  ;  Post  son  v.  Gerlach,  41  Ohio  St.  682. 

V.  Dorr,  4  Edw.  412.  '•»  Gaynor  v.  Blewett,  82  Wis.  313,  52  N. 

6  Lofsky  V.  Maujer,  3  Sandf.  Ch.  69.  W.  Rep.  313. 

441 


§  1537.]  THE   APPOINTMENT    OF    A    RECEIVER. 

Under  a  statute  giving  the  mortgagor  the  right  to  the  possession 
of  the  premises  until  the  expiration  of  a  year  from  the  time  of  sale 
upon  foreclosure,  the  mortgagee  is  not  entitled  to  a  receiver  during 
that  time  to  take  possession  of  the  crops  upon  the  mortgaged  prem- 
ises.^ 

The  tenants  of  the  premises  may  be  compelled  to  attorn  to  the 
receiver.2  So  also  a  purchaser  of  the  premises  from  the  mortgagor 
may  be  directed  to  pay  to  the  receiver  an  occupation  rent.^  If  the 
person  in  possession  refuses  to  attorn,  the  court  may  on  motion  pass 
an  order  directing  him  to  do  so,  although  he  was  not  made  a  party 
to  the  suit  in  the  first  instance.*  If  he  disobeys  the  order  of  court, 
he  may  be  proceeded  against  for  contempt.^  The  court  will  not 
support  a  receiver  in  using  forcible  or  violent  means  to  assert  his 
rights.^ 

In  an  action  by  a  receiver  to  collect  rents  of  the  mortgaged  prem- 
ises, the  question  of  his  appointment,  made  upon  the  allegation  that 
the  property  was  inadequate  to  pay  the  mortgage  debt,  cannot  be 
raised,  for  the  question  has  already  been  adjudicated  in  making  the 
appointment.''  A  receiver  appointed  in  a  suit  for  the  foreclosure  of 
mortgage  upon  a  farm,  with  power  to  let  the  premises,  may  lease 
them  for  a  year  without  special  order,  that  being  the  usual  term  for 
such  leases,  and  such  lease  is  neither  limited  nor  determined  by  the 
duration  of  the  suit.^ 

1537.  Payment  discharges.  —  It  is  the  right  of  the  mortgagor, 
whose  property  has  been  placed  in  the  hands  of  a  receiver  pending 
a  suit  for  foreclosure,  to  pay  the  debt  at  any  time,  and  have  the 
property  restored  to  his  possession.  This  right  does  not  depend 
upon  the  discretion  of  the  court,  but  is  one  which  he  can  claim  and 
the  court  cannot  withhold.^  Payment  destroys  the  plaintiff's  cause 
of  action  ;  and  though  in  general  the  receiver  is  appointed  for  the 
benefit  of  all  parties  interested,  when  upon  payment  the  plaintiff's 

1  White  r.  Griggs,  54  Iowa,  650,  7  N.  W.  129  Ind.  155,  27  N.  E.  Rep.  136.  See 
Rep.  125  ;  Sheeks  v.  Klotz,  84  lud.  471.  §  1531. 

2  Henshaw  v.  Wells,  9  Humph.  568.     A  ^  Henshaw  v.  Wells,  9  Humpb.  568. 
tenant  after  attorning  cannot  surrender  the  ^  Parker  y.  Browning,  8  Paige,  388,  390, 
premises  to  the  mortgagor.     Nealis  v.  Bus-  35  Am.  Dec.  717. 

sing,  9  Daly,  305.  "  Goodhue  v.  Daniels,  54  Iowa,  19,  6  N. 

3  Astor  V.  Turner,  2  Barb.  444.  W.  Rep.  129. 

*  Reid  V.  Middleton,  1  Turn.  &  R.  455  ;  »  Sbreve  v.  Hawkinson,  34  N.J.  Eq.  413. 

Sea   Ins.  Co.    v.  Stebbins,  8    Paige,    565;  See  numerous  English  and  Irish  cases  cited 

Parker  v.  Browning,  8  Paige,  388,  390,  35  by  the  reporter,  in  a  note  to  this  case,  as  to 

Am.  Dec.  717  ;  Bowery  Sav.  Bank  v.  Rich-  the  power  of  a  receiver  to  lease  lands, 

ards,  3  Hun,  366.     The  last  named  case  is,  ^  Milwaukee  &  Minn.  R.  R.  Co.  v.  Sout- 

however,    overruled.      Merritt    v.    Gibson,  ter,  2  Wall.  510  ;  Woolworth  C.  C.  49. 

442 


DUTIES   AND   POWERS   OF   A   RECEIVER. 


[§  1537  a. 


right  of  action  is  ended,  the  rights  of  the  other  parties  fall  with  it.^ 
But  while  the  plaintiff's  action  is  pending,  a  receiver  appointed  at 
his  instance  will  not  generally  be  discharged  on  his  application  with- 
out the  concurrence  of  all  others  interested  in  the  property .^ 

If  the  foreclosure  suit  is  abandoned  after  a  receiver  has  been 
appointed,  it  no  longer  operates  as  notice  in  intercepting  the  rents 
and  profits.^ 

1537  a.  "Whether  a  mortgagee  who  nominates  and  procures 
the  appointment  of  a  receiver  is  responsible  for  his  default  is  a 
question  upon  which  there  is  a  conflict  of  authority.  On  the  ground 
that  a  receiver  is  appointed  for  and  on  behalf  of  all  persons  interested, 
it  is  contended  that  any  loss  arising  from  the  default  of  the  receiver 
must  be  borne,  as  between  the  parties,  by  the  estate  in  his  hands.^ 
But  on  the  other  hand,  in  a  recent  case  in  New  Jersey,  the  V ice- 
Chancellor  held  that  in  such  case  the  mortgagee  must  bear  any  loss 
caused  by  the  defalcation  of  the  receiver  so  appointed,  and  the  in- 
sufficiency of  his  sureties.  The  Vice-Chancellor  reviews  and  com- 
ments upon  the  authorities,  and  concludes  that  they  do  not  support 
the  contention  that  the  mortgagee  is  not  responsible.^ 

upon  the  application  of  a  mortgagee  and 
becomes  a  defaulter,  and  his  sureties  are  in- 
sufficient, the  resulting  loss  should  fall  on 
the  mortgagee,  and  have  referred  to  the  au- 
thorities only  for  the  purpose  of  showing 
that  they  are  not  all  in  accord  with  the 
These  authorities  all  rely  upon   the  single    general  proposition  laid  down  by  the  text- 


1  Davis   V.    Marlborough,    Swans.    168; 
Paynter  v.  Carew,  18  Jur.  417. 

2  Bainbrigge  v.' Blair,  3  Beav.  421. 

3  Johnston  v.  Riddle,  70  Ala.  219. 

*   2  Daniel's  Ch.  Pr.  pp.  740,  741,  2  Mad- 
dock  Ch.  Pr.  p.  235  ;  Kerr  Receivers,  p.  164. 


case  of  Hutchinson  v.  Massareene,  2  Ball 
&  B.  55,  except  that  Mr.  Maddock  cites  in 
addition  the  case  of  Rigge  v.  Bowater,  3 
Brown,  Ch.  365.  The  American  treatises 
follow  the  English.  High,  Rec.  §  270, 
Beach  on  Receivers,  §  303. 

5  Sorchan  v.  Mayo  (N.  J.  Eq.),  23  Atl. 
Rep.  479.  "  The  whole  of  the  case  of  Rigge 
r.  Bowater  is  this  :  '  The  lord  chancellor 
intimated  his  opinion  (without  deciding  the 
ca.se)  that,  if  a  receiver  be  ap])ointed  by  the 
court  (upon  the  application  of  a  mortgagee 
or  other  incumbrancer),  and  lie  afterwards 
embezzle  or  otherwise  waste  the  rents  and 
profits,  the  loss  must  fall  on  the  mortgagor.' 


writers.  It  is  also  worthy  of  remark  that 
the  case  of  a  mortgagee  who  applies  for  a 
receiver  stands  on  a  footing  decidedly  dif- 
ferent from  that  of  a  creditor  who  is  suing 
for  himself  and  other  creditors,  and  asks  for 
a  receiver  to  hold  the  property  for  the  bene- 
fit of  all  the  creditors.  The  mortgagee  asks 
for  the  rents  and  profits  to  be  applied  to  his 
mortgage,  on  the  ground  that  he  holds  the 
legal  title  to  the  premises,  and  is  entitled  of 
right  to  the  possession  and  to  receive  the 
rents  ;  and  if  he  himself  were  in  possession 
he  would  be  entitled  to  hold  it,  and  receive 
the  rents  himself,  until  his  debts  were  paid  ; 
and  it  seems  to  me  that  it  would  be  no  hard- 


Hut  Mr.  Eden,  in  his  note  to  that  case,  shows  ship  upon  him  if  the  rule  were  established 

that  such  rule  does  not  always  prevail ;  and  that  he  should  take  the  risk  of  the  solvency 

it  appears   that  Hutchinson   v.  Massareene,  of  the  receiver,  and  that  a  receiver  so  ap- 

instead  of  holding  that  the  loss  in  that  case  pointed  should  be  considered  as  the  agent 

fell  upon  the  estate,  holds  preci.sely  the  con-  of  the  mortgagee.    Such  a  rule  would  make 

trary.  .  .  .  But  I  do  not  find  it  necessary  complainants  and  their  solicitors  a])plying 

to   decide  the  question  whether,  where  an  for   such  appointments   careful   as    to   the 

indifferent  person  is  appointed  by  the  court  character  of  the  men  whom  they  nominate 

443 


§  1537  a.] 


THE  APPOINTMENT  OF  A  RECEIVER. 


to  the  court,  and  the  responsibility  of  the 
sureties  given  by  the  appointee.  But  what- 
ever may  be  the  rule  in  ordinary  cases,  it 
seems  to  me  that  the  circumstances  of  this 
case  render  the  equity  of  the  exceptants  quite 
plain.  Here  the  complainant  nominates, 
and  procures  to  be  appointed,  his  own  so- 
licitor and  agent.  None  of  the  owners  of 
the  equity  of  redemption  took  any  part  in 

444 


the  proceedings ;  they  were  all  conducted 
under  the  instructions  of  this  very  agent ; 
and  I  do  not  see  how  the  case  differs  from 
that  of  the  mortgagee  being  himself  in  pos- 
session, receiving  the  rents  and  profits ;  and 
it  seems  to  me  that  when  they  were  paid  to 
the  receiver  in  this  case  they  were  in  effect 
paid  to  the  complainant,  and  he,  in  my  judg- 
ment, must  bear  the  loss." 


CHAPTER   XXXIV. 


DECREE    OF    STRICT   FORECLOSURE. 


II. 


Nature  and  use  of  this  remedy,  1538- 

1541. 
In  what  States  it  is  used,  1542-1556. 


III.  Pleadings  and  practice,  1557-1568. 

IV.  Setting  aside  and  opening  the  foreclos- 

ure, 1569, 1570. 


I.  Nature  and  Use  of  this  Remedy. 

1538.  Historical.  —  In  the  progress  of  the  doctrine  of  mort- 
gages, the  first  advance  was  to  relieve  the  mortgagor  from  tlie  for- 
feiture of  his  estate  through  failure  to  perform  the  condition  within 
the  time  limited  by  the  deed.  "  At  length,"  says  Spence,  "  in  the 
reign  of  Charles  I.,  it  was  established  that  in  all  cases  of  mortgage, 
where  the  money  was  actually  paid  or  tendered,  though  after  the 
day,  the  mortgage  should  be  considered  as  redeemed  in  equity,  as  it 
would  have  been  at  law  on  payment  before  the  day ;  and  from  that 
time  bills  began  to  be  filed  by  mortgagees  for  the  extinction  or  fore- 
closure of  this  equity,  unless  payment  were  made  by  a  short  day,  to 
be  named."  ^  This  was  the  form  of  foreclosure  first  adopted  by  the 
English  courts  of  equity,  and  until  quite  recent  times  was  the  only 
form.2  Although  this  form  of  foreclosure  has,  through  the  action 
of  the  courts  and  by  statutory  enactments,  gradually  given  way 
within  the  last  hundred  years  to  the  more  equitable  mode  of  fore- 
closure by  sale,  it  is  still  used  by  courts  of  equity  as  the  mode  best 
adapted  to  a  few  special  cases,  and  in  two  of  our  States  is  the  mode 
in  general  use. 

This  is  the  foreclosure  spoken  of  in  the  books ;  but  since  foreclos- 
ure, in  this  country  at  least,  has  come  to  mean  generally  a  foreclos- 
ure by  sale,  this  form,  by  which  the  absolute  ownership  of  the 
property  is  given  to  the  mortgagee  under  a  decree  of  court,  has  of 
late  come  to  be  designated,  for  the  purpose  of  distinguishing  it,  a 
strict  foreclosure. 

The  effect  of  a  strict  foreclosure  is  simply  to  cut  off  the  equity  of 
redemption.  The  mortgagee's  title  after  foreclosure  is  that  con- 
veyed by  the  mortgage  discharged  from  the  condition  of  defeasance. 


Spence  Eq.  Juris.  603. 


-  Until   the  Chancery  Iinproveineiit  Act, 
15&  16  Vict.  ch.  86,  §  48. 

445 


§§  1539,  1540.]   DECREE  OF  STRICT  FORECLOSURE. 

It  is  the  same  as  if  the  original  mortgage  had  been  an  absolute  deed, 
giving  no  right  of  redemption  at  law  or  in  equity. ^ 

1539.  Nature  of  this  remedy.  —  A  strict  foreclosure  was  the 
natural  remedy  upon  a  mortgage  when  it  was  regarded  as  a  con- 
ditional sale  of  the  land  rather  than  as  a  mere  security  ;  for  the 
morto-agor  having  failed  to  perform  the  condition,  it  was  consistent 
with  this  doctrine  of  the  condition  that  the  courts  should,  after  hav- 
ing relieved  the  mortgagor  from  the  forfeiture  of  his  condition, 
require  him  to  perform  it  within  a  reasonable  time  or  be  forever 
barred  of  his  right  to  redeem. ^  But  when  the  mortgage  came  to  be 
regarded  as  a  mere  security  for  the  payment  of  the  debt,  and  the 
breach  of  the  condition  as  of  no  effect  beyond  giving  the  mortgage 
creditor  the  right  to  resort  to  his  security,  the  natural  remedy  for 
the  breach  was  to  sell  the  property  secured  and  apply  the  proceeds 
to  the  payment  of  the  debt ;  as  in  this  way  the  debtor  would  have 
the  benefit  of  the  estate  when  this  was  of  greater  value  than  the 
debt,  and  the  mortgagee  would  have  a  claim  for  the  deficiency 
not  paid  by  the  proceeds  of  sale.  The  advantages  of  a  sale  of  the 
property  over  a  foreclosure  were  discussed  in  the  earlier  cases,  be- 
fore the  practice  of  ordering  a  sale  had  become  almost  universal,  as 
it  now  is,  except  in  special  cases.^ 

1540.  Foreclosure  is  proper  in  the  case  of  a  mortgage  given 
for  the  entire  purchase-money,  when  the  value  of  the  premises  is 
not  more  than  the  mortgage  debt,  and  the  mortgagor  does  not  ap- 
pear in  the  suit.*  It  is  proper  where  a  mortgagee  or  purchaser  is  in 
possession  under  a  legal  title  from  the  mortgagor,  for  the  purpose 
of  cutting  off  subsequent  liens  or  incumbrances,  as  in  case  one  has 
purchased  in  good  faith  at  a  mortgage  sale  which  is  not  conclusive 
against  some  incumbrancer  not  made  a  party  to  the  suit,  and  the 
purchaser  has  gone  into  possession. ^  It  is  proper,  too,  where  the 
raorto-age  is  in  the  form  of  an  absolute  deed  without  any  written 
defeasance.^     In  these  cases  the  decree  of  strict  foreclosure  perfects 

1  Champion  v.  Hinkle,  45  N.  J.  Eq.  162,  Williams's  case,  3  Bland,  186,  193  ;  Wilder 

16  Atl.  Rep.  701.  v.  Haughey,  21    Minn.    101 ;     Mussina    v. 

■-  Per  Jones,  Cliancellor,  in   Lansing  v.  Baitlett,  8  Port.  277. 

Goelet,  9  Cow.  346,  352  ;  Jefferson  v.  Cole-  *  Wilson  v.  Geisler,  19  111.  49. 

man,    110   Ind.   515,   11    N.   E.  Rep.  463;  ^  Kendall  v.  Tread  well,  14  How.  Pr.  165, 

Moultony.  Cornish,  138  N.y.  133,33  N.E.  5  Abb.   Pr.    16;    Benedict    v.   Oilman,    4 

Rep_  842.  Paige,  58;  Jefferson  v.  Coleman,  110  Ind. 

3  Per  Jones,  Chancellor,  in  Lansing  v.  515,  11  N.  E.  Rep.  463;  ^Nliles  v.  Stehle,  22 

Goelet,  9  Cow.  346,  352  ;  per  Kent,  Chan-  Neb.  740,  36  N.  W.  Rep.  142  ;  Moulton  v. 

cellor,  in  Mills  w.  Dennis,  3  Johns.  Ch.  367;  Cornish,  138   N.  Y.    133,   33    N.   E.    Rep. 

per  Peckham,  J.,  in  Bulles  v.  Duff,  43  N.  Y.  842. 

469  ;  Moulton  v.  Cornish,  138  N.  Y.  133,  33  ^  Hone  v.  Eisher,  2  Barb.  Ch.  559. 
N.  E.  Rep.  842  ;  per  Bland,  Chancellor,  in 

446 


IN   WHAT    STATES   IT   IS   USED.  [§§  1541-1544. 

and  confirms  the  title.  It  bars  the  interest  of  persons  who  have  a 
mere  lien  upon  the  land.^ 

1541.  Land  contract.  —  A  judgment  of  strict  foreclosure  may 
properly  be  rendered  upon  a  land  contract  for  failure  of  the  vendee 
to  make  the  payments  stipulated  for.^  As  to  the  form  of  the  de- 
cree, it  should  be  that  the  money  due  on  the  contract  be  paid  within 
such  reasonable  time  as  the  court  shall  direct,  and  that  in  case  of 
failure  to  make  payment  the  vendee  be  foreclosed  of  his  equity  of 
redemption. 

A  decree  of  sale  would  be  improper,  because  the  title  to  the  prem- 
ises does  not  pass  by  the  contract,  but  remains  in  the  vendor.  The 
vendor  is  entitled  to  such  decree,  although  he  is  unable  to  give  a 
perfect  title  to  the  property,  unless  the  purchaser  offers  to  rescind. 
He  need  not  first  tender  a  deed.  If  the  purchaser  has  not  tendered 
the  purchase-mone}^  and  it  appears  that  he  would  not  have  paid  it 
if  a  tender  of  the  deed  had  been  made,  such  tender  is  rendered 
unnecessary.^ 

A  mortgjigee  who  has  taken  possession  of  premises  mortgaged  for 
his  support,  on  account  of  a  breach  of  the  condition,  and  has  for  sev- 
eral years  supported  himself,  may  have  a  decree  to  quiet  the  title.* 

II.  In  ivhat  States  it  is  used. 

1542.  Alabama.  —  There  may  be  a  strict  foreclosure  where  the 
parties  have  themselves  agreed  to  this,  or  where  it  is  for  their  in- 
terest ;  ^  and  it  is  a  proper  remedy  in  case  the  mortgagee  has  ob- 
tained a  release  of  the  equity  of  redemption,  which  is  worth  nothing 
above  the  debt,  in  order  to  cut  off  intermediate  incumbrancers  and 
quiet  the  title.^ 

1543.  California.  —  There  may  be  a  strict  foreclosure  when  the 
circumstances  of  the  case  render  this  proper." 

1543  a.  Colorado.  —  There  can  be  no  foreclosure  without  a  sale 
under  a  decree  of  foreclosure.^ 

1544.  Connecticut.  —  A  strict  foreclosure  is  the  usual  form.    As 

1  Jefferson  v.  Coleman,  110  Ind.  515,  11         *  Frizzle  v.  Dearth,  28  Vt.  787. 
N.  E.  Rep.  463  ;  Bresnahan  v.  Bresuahan,        ^  Hunt  v.  Lewin,  4  St.  &  P.  138. 

46  Wis.  385,  1  N.  W.  Rep.  39.  «  Hitchcock  v.  U.  S.  Bank,  7  Ala.  386. 

2  §§225-235;  Landon  w.  Burke,  36  Wis.  "  Goodenow  v.  Ewer,  16  Cal.  461,  76 
378;  Button  v.  Schroyer,  5  Wis.  598;  Am.  Dec.  540;  McMillan  v.  Richards,  9 
Baker  v.  Beach,   15  Wis.  99;  Kimball  v.  Ca!.  365,  70  Am.  Dec.  655. 

Darling,  32  Wis.  675;  Buswell  v.  Peterson,  ^  Code  1883,  §  263;  Lulu  &  White  Sil- 
41  Wis.  82;  Taylor  u.  Collins,  51  Wis.  123,  vcr  Mining  Co.  v.  Nevin,  10  Colo.  357,  15 
8  N.  W.  Rep.  22.  I'ac.  Rep.  611. 

8  Mclndoe  v.  Morman,  26   Wis.  588,  7 
Am.  Rep.  96. 

447 


§§  1544  rt-1545  a.]     decree  of  strict  foreclosure. 

will  be  seen  by  reference  to  the  statutes,  no  other  form  was  pro- 
vided for  until  1886. ^  When  foreclosure  is  made  by  an  executor, 
administrator,  or  trustee,  the  premises  foreclosed,  or  the  avails 
thereof,  if  sold  by  him,  are  held  by  him  for  the  benefit  of  the  same 
persons  as  the  money  secured  by  the  mortgage  would  have  been 
held  if  collected  without  foreclosure ;  and  in  case  the  premises  are 
not  sold,  they  are  distributed  or  disposed  of  to  the  same  persons  as 
would  have  been  entitled  to  the  money  if  collected.^ 

1544  a.  Florida.  —  There  is  in  this  State  no  method  either  at 
law  or  in  equity  by  which  a  mortgagee  can  be  adjudged  the  abso- 
lute owner  of  the  mortgaged  property  ;  or,  in  other  words,  there  is 
no  strict  foreclosure.^ 

1545.  Illinois.  —  It  is  only  in  rare  cases,  as  where  the  property 
is  of  less  value  than  the  debt  and  the  mortgagor  is  insolvent,  and 
the  mortgagee  is  willing  to  take  the  property  and  discharge  the 
debt,  that  a  strict  foreclosure  is  allowed.^  It  is  not  proper  where 
there  are  other  incumbrances  on  the  property,  or  creditors,  or  pur- 
chasers of  the  equity  of  redemption.^ 

When  the  mortgagor  has  deceased  and  his  estate  is  insolvent,  the 
case  is  assimilated  to  that  where  there  are  other  incumbrances  upon 
the  property ;  and  a  sale  should  be  directed  instead  of  a  strict  fore- 
closure.*^ 

1545  a.  Indiana.  —  It  is  provided  by  statute  that  there  shall  be 
a  sale  of  the  mortgaged  property  upon  foreclosure.''  Though  the 
mortgage  be  by  a  deed  absolute  in  form,  the  court  cannot  decree  a 
foreclosure  and  that  the  deed  be  absolute,  but  must  order  a  sale.^ 
It  is  only  under  special  and  peculiar  circumstances,  as  where  the 
complainant  has  obtained  the  complete  title,  save  the  interest  of  one 
who  was  not  made  a  party  to  the  foreclosure  suit,  that  a  strict  fore- 
closure can  be  had.^ 

1  See  §  1326.  ^  Farrell   v.  Parller,  50   III.  274  ;   Hor- 

2  Gen.  Stats.  1875,  p.  359.  ner  v.  Zimmermau,  45  III.  14;  Warner  u. 
^  Browne  v.  Browne,  17  Fla.  607,  623,    Helm,  6  III.  220;  Greenemeyer  v.  Deppe, 

per  Weitcott,  J.,  35  Am.  Rep.  96.  6  Bradw.  490  ;  Murphy  v.  Stith,  6  Bradw. 

*  Sheldon  v.  Patterson,  55  111.  507  ;  Hor-  562  ;  Hollis  v.  Smith,  9  Bradw.  109;  Rourke 

ner  u.  Zimmerman,  45  111.  14;  Stephens  v.  v.  Coulton,  4  Bradw.  257;  Boyer  ?;.  Boyer, 

Bichnell,  27  111.  444, 81  Am.  Dec.  242 ;  Wil-  89  111.  447,  449. 

son  V.  Geisler,  19  111.  49  ;  Johnson  v.  Don-  6  Boyer     v.  Boyer,    89    111.   447,   449,  8 

nell,    15  111.   97;    Boyer  v.   Boyer,  89  111.  Cent.  L.  J.  217. 

447,  449;  Hollis  v.  Smith,  9  Bradw.  100;  ^  2  R.  S.  1876,  p.  188,  §  379  of  Code  of 

Griesbaum   v.   Baum,    18    111.    App.    614;  Friictice. 

Gorham   v.  Parson,  119  111.  425;    Illinois  »  Smith  t>.  Brand,  64  Ind.  427. 

Starch  Co.  v.   Ottawa   Hydraulic   Co.  125  ^  In  Jefferson  ?;.  Coleman,  110  Ind.  515, 

111.   237,   19   N.    E.    Rep.   486;    Brahm   v.  11  N.  E.  Rep.  465,  the  court,  by  Mitchell, 

Dietsch,  15  111.  App.  331;    Ellis  v.  Leek,  J.,   say:    "In   our   State,  as    in   all   those 

127  111.  60,  20  N.  E.  Rep.  2i8.  States  where  a   mortgage  is  regarded  as 

448 


IN    WHAT    STATES   IT   IS   USED.  [§§  1546-1648. 

1546.  Iowa.  —  "  What  is  known  as  a  strict  foreclosure  has  no 
place  in  our  system  of  procedure."  ^  Yet  when  a  junior  lien-holder 
has  not  been  made  a  party  to  a  suit  to  foreclose  a  prior  mortgage, 
the  purchaser  under  the  foreclosure  proceeding  may  prosecute  an 
action  requiring  the  junior  lien-holder  to  exercise  his  right  of  re- 
demption, and  in  default  thereof  the  latter  may  be  foreclosed  of  all 
right  of  redemption. 2 

1547.  Kentucky.  —  Strict  foreclosures  were  formerly  decreed, 
but  now  the  Code  provides  that  there  shall  be  a  sale  in  all  cases.^ 

1547  a.  Massachusetts.  —  A  strict  foreclosure  may  be  decreed 
in  equity,  although  the  mortgage  contains  a  power  of  sale.*  Such 
a  foreclosure  is,  however,  seldom  resorted  to;  but  it  is  one  of  the 
usual  remedies  in  equity  which  may  be  resorted  to  unless  the  terms 
of  the  mortgage  by  express  words  or  by  fair  implication  exclude  it. 
Thus  a  mortgage  which  does  not  provide  any  definite  time  for  the 
payment  of  the  mortgage  debt,  nor  in  any  way  limit  the  time  for 
redemj^tion,  is  not  capable  of  a  strict  foreclosure.^ 

1548.  Minnesota.  —  The  court  has  power  to  decree  a  strict  fore- 
closure,^ and  by  a  recent  statute  this  power  is  expressly  conferred 
in  cases  where  such  remedy  is  just  and  appropriate;  but  no  final 
decree  of  foreclosure  can  be  rendered   until  the  lapse   of  one  year 

creating  only  an  equitable  lien,  and  not  as  off  a  right  to  redeem  given  by  equity,  when, 

a  conveyance  of  the  legal  estate,  the  remedy  by  the  condition  of  tlie  mortgage,  the  mort- 

by  strict  foreclosure  can  only  be  resorted  to  gagee's  estate  has  become  absolute  at  law. 

under  special  and   peculiar  circumstances.  Sampson   v.  Pattison,    1    Hare,   533,   536 ; 

At  best  it  is  a  harsh  remedy,  and  on  ac-  Kock  v.  Briggs,  14  Cal.  256,  262,  73  Am. 

count  of   its  severity,  and   the   anomalous  Dec.   651.      Where,   by   the  letter   of   the 

relation  it  bears  to  our  conception  of  the  deed,  the  mortgagor  still  has  the  right  to 

interest  of  a  mortgagee  and  the  statutory  redeem,  the  mortgagee  cannot  maintain  a 

method  of  foreclosure,  it  should  be  pursued  bill  to  foreclose.     Newcomb  v.  Bonham,  1 

only  in  cases  where  a  statutory  foreclosure  Vern.  7,  2  Vent.   364.      If,  as   in    Welsh" 

and  sale  would  be  inappropriate."   Followed  mortgages,   the    mortgagee's   estate   never 

in  Loeb  v.  Tinkler,  124   Ind.  331,  24  N.  E.  becomes   absolute,    there   never    can    be   a 

Rep.  235.  foreclosure  ;    Yates  v.  Hambly,  9  Atk.  360  ; 

^  Gamut  V.  Gregg,  37  Iowa,  573.  and  though  the  failure  expressly  to  fix  a 

2  Shaw  V.  Heisey,  48  Iowa,  468.  limit  to  the  time  for  redemption  does  not 

3  Caufman  v.  Sayre,  2  B.  Mon.  202  ;  Civ.  necessarily  take  away  the  usual  remedies 
Code,  §  375.  (Balfe  v.  Lord,  2  Dru.  &  War.  4S0,  489), 

*  Shaw  V.  Norfolk   Co.   R.   Co.  5  Gray,  in  some  cases,  where  no  time  was  fixed  by 

162  ;  Hall  v.  Sullivan  Ry.  Co.  21  Law  Rep.  the  deed  beyond  which  the  mortgagor  could 

138;  Shepard  v.  Richardson,  145  Mass.  32,  not  defeat  the  mortgagee's  estate  by  pay- 

11  N.  E.  Rep.  738.  ment,   the  foundation    for  foreclosure   has 

'^  Shepard  v.  Richardson,   145  Mass.  32,  been  thought  to  be  wanting.   Teulon  y.  Cur- 

11  N.  E.  Rep.  738.     Holmes,  J.,  delivering  tis,  Younge,  610."    See,  also,  Foster  v.  Bos- 

the  judgment,  said:    "Properly  speaking,  ton,  133  Mass.  143. 
the  right  to  foreclose  means  the  right  to  cut        •>  Ileyward  v.  Judd,  4  Minn.  483. 
VOL.  II.                    29  449 


§§  1549-1651.]        DECREE   OF   STRICT    FORECLOSURE. 

after  a  judgment  fixing   the  amount  due.^     The   courts,  however, 
regard  a  sale  as  the  proper  remedy  in  almost  all  cases. ^ 

1549.  Missouri.  —  Strict  foreclosure  "has  never  prevailed  in  this 
State."  3 

1550.  Nebraska.  —  Under  the  territorial  statutes  providing  for 
foreclosure  by  a  sale  of  the  premises,  it  was  held  that  the  court 
had  the  same  power  as  the  English  Chancery  Court  to  decree  a 
strict  foreclosure.^  But  in  a  later  case,  and  under  different  statutes, 
it  was  held  tiiat  a  strict  foreclosure  could  not  be  had;  that  the 
remedy  is  confined  to  a  sale  of  the  premises.^ 

1550  a.  New  Jersey.  —  A  strict  foreclosure  may  be  had,  espe- 
cially when  the  entire  legal  and  equitable  estate  have  become  vested 
in  the  mortgagee.^  The  mortgagee  in  such  case  is  entitled  to  a  de- 
cree of  strict  foreclosure  against  judgment  creditors  of  the  mortga- 
gor having  liens  on  such  land,  who  became  such  creditors  while  he 
still  owned  the  equity  of  redemption.'^ 

1551.  New  York.  —  A  strict  foreclosure  is  rarely  pursued  or 
allowed,  except  in  cases  where  a  foreclosure  has  once  been  had, 
and  the  premises  sold  without  making  a  judgment  creditor,  or  some 
person  similarly  situated,  a  party  to  the  suit ;  in  which  case  h.is 
right  of  redemption  may  properly  be  barred  in  this  way.^  But 
even  in  that  case  this  remedy  will  not  be  applied  to  relieve  a  party 

1  LaTvs  1870,  ch.  58.  34  Cal.  648.      This  court   has   frequently 

-  Wilder  u.  Haughey,  21  Minn.  101.  applied  that  proposition  to  varying  states 

3  Davis  V.  Holmes,  55  Mo.  349  ;  O'Fallon  of  facts."     Citing  Giraldin  v.  Howard,  103 

I'.  Clopton,  89  Mo.  284,  1  S.  W.  Rep.  302.  Mo.  40,  15   S.  W.  Rep.  383  ;  Cobb  v.  Day, 

"  That  general  remark,"  says  Barclay,  J.,  106  Mo.  278,  17  S.  W.  Rep.  323  ;  Gooch  v. 

in  Hannah  v.  Davis,  112  Mo.  599,  20  S.  W.  Botts,   110  Mo.  419,  20  S.  W.   Rep.  192; 

Rep.  686,  688,  "we  think,  was  not  intended,  Turner  v.  Johnson,  95  Mo.  431,  7  S.   W. 

and  certainly  should  not  be  held,  to  forbid  Rep.  570;  Martin  v.  Ratcliff,  101  Mo.  254, 

the  naming  of  a  date  for  payment  in  every  13  S.  W.  Rep.  1051. 

instance  where  parties  seek  the  aid  of  equity  *  Wood  v.  Shields,  1  Neb.  453. 

to  redeem  against  liens  of  various  kinds.  '^  Kyger  v.  Ryley,  2  Neb.  20. 

In  respect  to  ordinary  mortgages,  the  stat-  ^  Benedict  v.  Mortimer  (N.  J.),  8  Atl. 

utory  procedure  in  this  State  contemplates  Rep.  515. 

a  sale  as  the  means  of  foreclosure.  .  .  .  But  "^  Lockward  v.   Heudricksou  (N.  J.  Eq.), 

it  cannot  be  declared  as  an  inflexible  rule  25  Atl.  Rep.  512;  Parker  v.  Child,  25  N.J. 

that  a  sale  is  essential  in  every  case  to  put  Eq.  41. 

an  end  to  equitable  rights  of  redemption.  >*  Bolles  v.  Duff,  43  N.  Y.  469,  10  Abb. 

That  question  must   be   governed   largely  Pr.    N.    S.   399,   414,   41    How.   Pr.   355 ; 

by  the  circumstances  and  equities  of  each  Blanco  v.  Foote,  32  Barb.  535 ;  Benedict  v. 

controver.'jy.     Such  is  the  plain  meaning  of  Oilman,  4  Paige,  58;  Kendall  y.  Treadwell, 

the    judgment    pronounced    in    Martin    v.  5  Abb.  Pr.  16,  14  How.  Pr.  165;  Ross  t>. 

Ratcliff,  101  Mo.  254,  13  S.  W.  Rep.  1051.  Boardman,  22  Hun,527  ;  Robinson  y.  Ryan, 

A   court   of  equity   certainly  has  the  dis-  25  N.  Y.  320;  Denton  i'.  Nat.  Bank,  18  N. 

cretion  to  name  terms  on  which  it  will  let  Y.  Supp.  38;  Moulton  v.  Cornish,  138  N.  Y. 

in  a  party  to  redeem.     Cowing  v.  Rogers,  133,  33  N.  E.  Rep.  842. 

450 


IN   WHAT   STATES   IT   IS   USED.  [§§  1552-1555. 

who    has   bonglit   witli   fall   knowledge  of    the  outstanding  incum- 
brance and  subject  to  it.^ 

1552.  North  Carolina.  —  Foreclosure  was  formerly  made  with- 
out sale.  In  a  case  before  the  court  in  1837,2  Ruffin,  C.  J.,  said 
that  "of  late  years  a  beneficial  practice  has  gained  favor,  until  it 
may  be  considered  established  in  this  country,  not  absolutely  to 
foreclose  in  any  case,  but  to  sell  the  mortgaged  premises  and  apply 
the  proceeds  in  satisfaction  of  the  debt :  if  the  former  exceed  the 
latter,  the  excess  is  paid  to  the  mortgagor  ;  if  it  fall  short,  the  cred- 
itor then  proceeds  at  law  on  his  bond  or  other  legal  security  to  re- 
cover the  balance  of  the  debt."  It  was  then  the  practice  to  direct 
a  sale  upon  the  application  of  either  party;  but  when  no  such  appli- 
cation was  made,  to  decree  a  foreclosure.-^ 

1553.  Ohio.  —  The  rule  formerly  was  that  the  mortgagee  was 
entitled  to  foreclosure  instead  of  a  sale  when  two  thirds  of  the 
value  of  the  mortgaged  premises  did  not  exceed  the  debt.  Now 
a  sale  is  provided  for  in  all  cases.* 

1553  a.  Pennsylvania.  —  A  court  of  equity  has  no  power  to  bar 
a  mortgagor  of  his  equity  of  redemption.  This  can  only  be  extin- 
guished by  the  mortgagor's  own  agreement,  by  some  act  done  by 
himself  that  estops  him,  or  by  a  judicial  sale.^ 

1554.  Tennessee.  —  The  court,  as  early  as  1805,  refused  a 
prayer  that  the  property  might  be  vested  in  the  complainant,  but 
directed  a  sale,  according  to  the  provision  of  the  statute  relating  to 
sales  under  execution.'' 

1555.  Vermont.  —  By  reference  to  the  statutory  provisions  in 
respect  to  foreclosure,  it  will  be  seen  that  the  form  of  foreclosure  in 

1  Moulton  V.  Cornish,  138  N.  Y.  133, 33  N.  that  it  would  be  inequitable  to  permit  the  de- 
E.  Rep.  842,  reversing  16  N.  Y.  Supp.  267.  fendant  to  exercise  the  power  of  sale  in  his 
And  see  Kendall  v.  Treadwell,  5  Abb.  Pr.  mortgage,  and  it  might  properly  have  been 
16,  14  How.  Pr.  165  ;  Benedict  v.  Oilman,  4  decreed  that,  unless  lie  reimbursed  the  plain- 
Paige,  .58;  Peabody  u.  Pioberts,  47  Barb.  91.  tiff,  his  interest  in  the  property  should  be 

In  Moulton  v.  Cornish,  138  N.  Y.  133,33  deemed  extinguislicd.     Other  cases   might 

N.  E.  Rep.  842,  the  court  said :  "  It  is  not  be   suggested    where   such   form   of   relief 

necessary  to  hold  that  in  no  case  can  the  would  be  just.     But  in  all  cases  equitable 

right  to  sell  be  held  in  abeyance,  but  the  grounds    for   such   a    procedure   must    be 

right  cannot  be  denied  or  suppressed  unless  shown." 

some  adverse,  dominating  equity  requires  it.  '^Fleming  v.   Sitton,  1   Dev.  &  But.  Eq. 

If  in  this  case  the  plaintiff  hnd  purchased  and  621. 

taken  possession  in  ignorance  of  the  exist-  3  Green  v.  Crockett,  2  Dev.  &  Bat.  Eq. 

eiice  of  defendant's  mortgage,  and  the  de-  390. 

fendant,  having  knowledge  of  the  prosecu-  *  Anon.  1  Ohio,  235  ;  Higgins  r.  West,  5 

tion  of  tlie  foreclosure  action,  had  made  no  Ohio,  554. 

disclosure  of  his  incumbrance  upon  the  prop-  6  Winton's  App.  87  Pa.  St.  77. 

(Tty,  and  the  purchaser  was  thus  misled  to  6  Ilord  v.  James,  1  Overt.  201. 
his  prejudice,  it  might  well  have  been  held 

451 


§§  1556-1558.]        DECREE   OF   STRICT    FORECLOSURE. 

equity  is  a  decree    of  strict  foreclosure,  although  there  may  be  a 
foreclosure  by  action  at  law  with  a  similar  result.^ 

1556.  Wisconsin.  —  There  may  be  a  decree  of  strict  foreclosure 
when  this  remedy  is  proper.^  It  may  be  entered  by  consent  of  par- 
ties,'^ but  is  not  void  if  entered  without  consent.*  Land  contracts 
are  foreclosed  in  this  manner.^  In  the  foreclosure  of  a  mortgage 
conditioned  to  support  the  mortgagee  and  to  pay  his  debts,  the 
judgment  should  be  in  the  nature  of  a  strict  foreclosure.^ 

III.  Pleadings  and  Practice. 

1557.  Until  the  whole  debt  becomes  due,  a  conclusive  fore- 
closure of  the  whole  estate  mortgaged  will  not  be  decreed.  Some- 
times the  mortgage  contains  an  express  stipulation  that  the  whole 
debt  shall  be  due  and  payable  upon  default  in  the  payment  of  any 
instalment  of  it  or  of  the  interest  accrued.  Of  course,  the  whole 
debt  in  such  case  being  demandable,  a  decree  of  irrevocable  fore- 
closure as  to  the  entire  debt  may  be  made.^ 

1558.  The  rule  as  to  parties  is  in  general  the  same  as  in  an 
action  for  the  ordinary  decree  of  sale.  All  persons  interested  in 
the  mortgage  or  in  the  property  ^  should  be  made  parties.  If  the 
rights  of  some  have  been  already  barred  by  a  previous  action  of 
foreclosure,  only  those  who  still  have  claims  against  the  property 
should  be  made  parties.^  The  owner  of  the  equity  of  redemption 
is  a  necessary  party  defendant,  and  the  only  one  wholly  indispen- 
sable. The  decree  operates  directly  upon  the  property,  and  its 
effect  is  to  restore  it,  upon  payment,  to  the  mortgagor;  or,  upon 
failure  of  payment,  to  vest  it  in  the  mortgagee :  unless,  therefore, 
the  mortgagor  or  his  assignee  be  before  the  court,  the  decree  is 
without  efficacy .^^  If  subsequent  mortgagees  and  others  interested 
in  the  property  are  not  made  parties,  they  are  not  concluded  by 
the  proceedings.  But  while  they  are  proper  parties  they  are  not 
necessary  parties.^^  In  Connecticut,  where  a  strict  foreclosure  is 
the  mode  in  use,  it  is  held  that  the  bill  may  be  maintained  without 

1  See  §  1361 ;  Taris  v.  Hulett,  26  Vt.  Leveridge  v.  Forty,  1  Maule  &  S.  706  ;• 
308.  Caufman  v.  Sayre,  2  B.  Mon.  202. 

2  Sage  V.  McLauglilin,  34  Wis.  .550 ;  Bean  ^  Though  the  interest  be  only  that  of 
V.  Whiteomb,  13  Wis.  431.  an  attaching  creditor.     Lyon  v.  Sanford,  b 

8  Salisbury  v.  Chadbourne,  45  Wis.  74.  Conn.  544.     See  chapter  xxxi. 

*  Salisbury  v.  Chadbourne,  45  Wis.  74.  ^  Benedict  v.  Oilman,  4  Paige,  58. 

s  Landon  v.  Burke,  36  Wis.  378.  i"  Goodenowi'.  Ewer,  16  Cal.  461,  76  Am. 

6  Bresnahan  v.  Bresnalian,  46  Wis.  385,  Dec.  540. 

1  Wis.  Leg.  N.  217.  "  Brooks    v.   Vt.  Cent.    R.    R.   Co.    14 

'  Stanhope   v.   Manners,   2   Eden,    197;  Blatchf.  463,  472;  Weed  v.  Beebe,  21  Vt. 

495. 

452 


PLEADINGS   AND   PRACTICE.  [§§  1559,  1560. 

making  any  subsequent  incumbrancers  parties.^  But  the  propriety 
of  this  practice  has  been  called  in  question.^  For  if  the  mortgagor 
alone  be  made  a  party  when  there  are  others  having  rights  in  the 
equity  of  redemption,  the  foreclosure  merely  extinguishes  his  right 
of  redemption  ;  and  he  may,  by  acquiring  the  right  of  a  subsequent 
incumbrancer,  proceed  to  redeem,  notwithstanding  the  foreclosure.^ 
When  a  prior  mortgagee  who  has  foreclosed  his  mortgage,  and  pur- 
chased a  part  of  the  mortgaged  premises,  seeks  again  to  foreclose 
his  mortgage,  as  against  a  junior  mortgagee  not  made  a  party  to 
the  first  action,  the  purchasers  on  foreclosure  of  the  other  portions 
of  the  mortgaged  premises  are  necessary  parties,  so  that  the  liens 
of  the  two  mortgages  may  be  determined  and  adjudicated  as  against 
tlieir  respective  portions.* 

1559.  In  a  bill  in  equity  for  a  strict  foreclosure  after  the 
death  of  the  mortgagee,  his  heirs  at  law  are  necessary  par- 
ties. The  decree  in  such  case  vests  the  legal  title  to  the  premises 
in  the  heir  and  not  in  the  executor.^  This  is  the  rule  in  Eng- 
land, where  formerly  foreclosure  was  generally  without  sale.^  When 
the  bill  is  for  a  sale,  and  not  for  foreclosure,  the  heir  of  the  mort- 
gagee need  not  be  joined.  The  personal  representative  alone 
may  bring  it.^ 

1560.  The  pleadings  and  practice  are  substantially  the  same 
as  in  the  ordinary  action,  though  the  plaintiff  sometimes  offers 
in  his  complaint  to  take  the  mortgaged  premises  in  full  payment 
and  satisfaction  of  his  debt.^  It  is  not  infrequently  a  matter  of 
agreement  between  the  parties  before  the  suit  is  commenced,  that 
by  this  summary  process  the  mortgagee  shall  be  adjudged  the  ab- 

1  Smith  V.  Chapman,  4  Conn.  344,  346.  the  land.     Equity  will  permit  the  executor 

^  Goodman  v.  White,  26  Conn.  317,  320.  to  follow  the  land  into  the  hands  of  the  heir, 

3  Goodman  v.  White,  26  Conn.  317.  so  far  at  least  as  to  satisfy  the  mortgage 

*  Moulton  V.  Cornish,  138  N.  Y.  133,33  debt,  but  the  foreclosure  fixes  the  title  in  the 

N.  E.  Rep.  842.  heir.    And  the  reason  assigned  in  the  books 

5  Osborne   v.    Tunis,    25    N.  J.   L.  633.  why  the  heir  of  the  mortgagee  should  be 

"True,"  says  the  Chief  Justice,  "while  the  made  a  party  to  a  bill  filed  by  the  executor 

mortgage  retains  its  character  of  a  pledge,  to  redeem  or  be-  foreclosed  is,  that  other- 

of  a  mere  security  for  the  debt,  it  may  be  wise,  if  the  mortgagor  should  redeem,  there 

assigned  by  the  executor.     It  will  pass  by  would   be   no   one   before    the   court  from 

an  assignment  of  the  bond  as  a  mere  inci-  whom  a  conveyance  of  the  legal  estate  can 

dent  of  the  mortgage  debt.     It  is  regarded  be  taken." 

as  a  chattel  interest.     But  when  the  right  "^  1  Fisher's  Mortg.  §  1061. 

to  redeem  is  foreclosed,  its  character  as  a  ^  Dayton    v.    Dayton,    7    Bradw.    136; 

pledge  ceases,  and   the   title   to   the  land  §  1387. 

mortgaged  vests  absolutely,  by  force  of  the  ^  For  a  form  of  complaint  proper  in  this 

conveyance,  in  the  mortgagee,  while  living,  action,  see  Kendall  i;.  Treadwell,  5  Abb.  Pr. 

or  in  his  heir  at  law  if  he  be  dead.     The  16,  14  How.  Pr.  165. 
title  relates  no  longer  to  the  money,  but  to 

453 


§  1561.]  DECREE   OF   STRICT   FORECLOSURE. 

solute  owner  of  the  pi-operty,  and  that  the  mortgagor  shall  there- 
upon be  freed  from  his  debt,  and  in  such  case  the  bill  should  be 
drawn  with  reference  to  such  agreement  or  understanding.  In  other 
cases  in  which  there  is  no  such  agreement,  but  where  the  property 
is  about  equal  in  value  to  the  debt,  and  it  is  the  interest  of  the 
mortgagee  to  have  a  speedy  foreclosure  in  this  manner,  his  offer  to 
take  the  property  in  satisfaction  of  the  debt  would  generally  be 
essential  in  preventing  opposition  to  this  form  of  foreclosure,  and 
should  therefore  be  set  forth  in  the  bill. 

This  specific  remedy  should  be  pi-ayed  for  in  the  bill  ;  tliough 
if  in  the  progress  of  the  cause  the  facts  show  that  a  strict  foreclos- 
ure is  the  proper  remedy,  and  subject  to  no  objection,  a  decree 
might  be  entered  in  this  form  upon  a  bill  drawn  originall}^  for  a 
foreclosure  sale  ;  and  although  a  strict  foreclosure  be  prayed  for, 
the  court  may  decree  a  sale.^  On  the  other  hand,  where  a  prior 
mortgagee  has  brought  a  bill  for  a  strict  foreclosure,  which  is  de- 
nied on  the  ground  that  he  bought  at  the  foreclosure  sale  with  full 
knowledge  that  the  junior  mortgagee  had  not  been  made  a  part}^  to 
the  foreclosure  suit,  the  prior  mortgagee  is  entitled  to  an  ordinary 
decree  foreclosing  his  mortgage  as  against  the  junior  mortgagee, 
notwithstanding  the  prior  defective  foreclosui'e.^ 

1561.  The  judgment  in  a  strict  foreclosure  bars  the  defendant 
of  all  right  and  title  and  equity  of  redemption,  unless  he  redeems  or 
pays  the  mortgage  within  a  time  certain  therein  fixed,  and  usually 
six  months  from  the  date  of  the  judgment.-'^  A  shorter  time  than 
six  months  is  frequently  fixed  upon  in  modern  practice.*  It  is 
therefore  interlocutory,  and  makes  provision  applicable  in  case  of  a 
failure  to  redeem.  When  a  day  is  appointed  upon  which  redemp- 
tion is  to  be  made,  the  plaintiff  should  attend  at  the  time  and  place 
fixed  to  receive  the  amount  and  release  the  property. 

The  decree  that  the  defendant  pay  the  sum  found  due  on  the 
mortgage  within  the  time  fixed  is  a  final  one,  and  vests  the  title  of 
the  mortgagor  in  the  complainant,  without  any  further  order  or  de- 
cree after  the  time  allowed  for  payment  has  elapsed.^ 

1  Sagei,-.  McLauglilin,34  Wis.  550;  Sage  v.  Hubbard,  44  Conn.  340.  See  Sage  v. 
V.  Central  R.  R.  Co.  99  C.  S.  334.  Cent.  R.  R.  Co.  99  U.  S.  334, 13  West.  Jur. 

2  Moulton  V.  Cornisli,  138  N.  Y.  133,  33    218. 

N.  E.  Rep.  842.  4  Ellis  v.  Leek,  127  111.  60,  20  N.  E.  Rep. 

3  Farrell  v.  Earlier,  50  111.  274.     Eor  a     218. 

form  of  jiulgment  where  there  were  con-  ^  Ellis  v.  Leek,  127  111.  60,  20  N.  E.  Rep. 

flicting  equities,  see  Kendall  v.  Treadwell,  218;  Mulvey  v.  Gibbons,  87  111.  367. 

14  How.  Pr.  165,  5  Abb.  Pr.  16.     For  decree  The   English    practice   is,   upon    motion 

against  two  defendants  of  whom  one  stands  after   default   in    making   payment  within 

in  relation  of  surety  to  the  other,  see  Waters  the   time,  to   order  that  the  defendant  do 

454 


PLEADINGS    AND    PRACTICE.  [§§  1562,  1563. 

Where  a  town  foreclosed  a  purchase-money  mortgage,  but  after- 
wards extended  the  time  of  redemption  so  that  the  decree  did  not 
become  absolute,  and  upon  redemption  by  the  mortgagor  executed 
to  him  a  quitclaim  deed,  the  mortgagor  was  declared  to  hold  title 
under  his  original  deed  from  the  town,  and  might  maintain  an  ac- 
tion against  it  for  a  breach  of  a  covenant  therein. ^ 

1562.  Delivery  of  possession.-  —  Upon  failure  of  the  defendant 
to  pay  the  amount  due  within  the  time  stipulated,  it  seems  that 
application  should  be  made  to  the  court,  founded  upon  proof  of  a 
demand  and  refusal  to  pay  the  amount  adjudged  to  be  paid,  for  the 
issuing  of  a  process  in  the  nature  of  a  writ  of  assistance,  to  put  the 
plaintiff  into  possession.^ 

Under  the  English  practice,  however,  upon  a  decree  of  strict 
foreclosure  the  court  does  not  order  a  delivery  of  possession  of  the 
premises  to  the  complainant,  but  leaves  him  to  his  legal  remedy  by 
ejectment,^  The  complainant  has  the  legal  title,  and  the  court  only 
declares  that  the  equity  of  redemption  is  foreclosed.  The  delivery 
of  possession  is  not  necessary  to  give  effect  to  the  decree  of  court, 
as  it  is  in  case  of  a  sale.  If  the  mortgagee  be  in  possession,  the 
decree  may  properly  direct  him  to  vacate  and  release  the  premises 
on  payment  to  him  of  the  sum  found  due.^ 

1563.  On  a  strict  foreclosure  the  time  allowed  for  redemption 
before  the  foreclosure  becomes  absolute  is  within  the  discretion  of 
the  court.  Six  months  was  the  usual  time  formerly  allowed,^  but 
a  shorter  time  is  frequently  allowed  in  recent  practice;'  the  time 

from    henceforth    stand   foreclosed    of    all  be  taken  of  the  principal  and  interest  due 

right,  title,  and  equity  of  redemption  in  the  to  the  complainant  upon  the  mortgage,  or- 

premises.     1  Smith's  Ch.  Pr.  532.  ders  that,  upon  the  defendant's  paying  the 

^  Daggett  V.  Mendon,  64  Vt.  323,  24  Atl.  amount  ascertained  and  certified  or  found  to 

Rep.  242.  be  due,  within  six  months,  at  such  time  and 

-  In    Connecticut   provision    is   made  by  place   as   are  appointed,  the    complainant 

statute    for    delivery    of    possession.     See  shall  reconvey  the  mortgaged  premises ;  but 

§  1326.  that,  in   default  of  such  payment,  the    de- 

^  Landon  v.  Burke,  36  Wis.  378;  Bus-  fendant  shall  thenceforth  be  absolutely  de- 
well  V.  Peterson,  41  Wis.  82  ;  Diggle  v.  barred  and  foreclosed  of  his  equity  of  re- 
Boulden,  48  Wis.  477,  4  N.  W.  Rep.  678.  demption.   It  is  necessary,  however,  for  the 

*  Sutton  u.  Stone,  2  Atk.  101;  Seaton's  complainant,  in  order  to  complete  his  title, 

Decrees,  140.  to  procure  an  order  confirming  it;  otherwise 

^  Kendall    v.  Treadwell,  5  Abb.  Pr.  16,  the  decree  of  foreclosure  will  not  be  pleada- 

14  How.  Pr.  165.  ble.    This  order  of  confirmation  is  procured 

^  Chicago  &  Vincennes  Railroad  Co.  v.  on  proof  to  the  court  of  non-payment  ac- 

Fosdick,  96  U.  S.  47.     Matthews,  J.,  said  :  cording  to  the  terms  of  the  decree."     Sec 

"According  to  the  practice  of  the  English  2  Daniell  Ch.  Pr.  997. 

chancery,  a  decree  of  this  nature  in  a  fore-  "^  Ellis  v.  Leek,  127  111.  60,  20  N.  E.  Rep. 

closure  suit,  after  directing  an  account  to  218. 

455 


§§  1564,  1565.]    DECREE  OF  STRICT  FORECLOSURE. 

is  a  matter,  however,  within  the  discretion  of  the  court,  having  in 
view  the  circumstances  of  the  case.^ 

In  Vermont  the  time  is  by  statute  made  one  year ;  ^  and  under 
the  chancery  practice  it  was  before  the  statute  a  year  and  a  week.^ 
The  time  may  be  enlarged,  and  usually  is  on  application,  but  a 
satisfactory  reason  for  it  must  be  shown.* 

When  a  sale  is  decreed  instead  of  a  foreclosure,  it  is  not  the 
practice  ordinarily  to  fix  a  day  for  payment  in  failure  of  wliich  the 
sale  shall  take  place,^  though  this  course  has  sometimes  been  taken.^ 
The  reason  for  enlai-ging  the  time  of  redeeming  does  not  apply  in 
case  a  sale  is  ordered  according  to  the  usual  practice  ;  for  the  mort- 
gagor in  the  case  of  a  sale  is  supposed  to  receive  the  full  value  of 
the  property  by  the  payment  of  the  debt  and  receipt  of  the  sur- 
plus, and  therefore  applications  for  the  postponement  of  sales  are 
not  ordinarily  allowed. 

1564.  "When  a  strict  foreclosure  is  had  against  an  infant 
heir  of  the  mortgagor,  he  is  usually  entitled  to  a  day  in  court  after 
he  comes  of  age.  The  former  practice  was  to  allow  him  six  months 
after  coming  of  age,  not  to  go  into  the  accounts  or  to  redeem,  but 
to  show  error  in  the  decree.  A  decree  of  sale,  however,  is  binding 
upon  the  infant." 

1565.  As  already  noticed,  a  time  for  redemption  is  always 
allowed  in  a  decree  for  a  strict  foreclosure.  A  decree  which  does 
not  find  the  amount  due,  nor  allow  any  time  for  the  payment  of 
the  debt  and  the  redemption  of  the  estate,  and  which  is  final  and 
conclusive  in  the  first  instance,  cannot  be  sustained  unless  author- 
ized by  statute.  Although  the  usual  time  of  redemption  allowed 
is  six  months,  yet  it  is  really  within  the  discretion  of  the  court  as 
to  the  length  of  it ;  but  the  discretion  does  not  extend  to  withhold- 
ing it  entirely.^ 

Where  the  operation  of  a  decree  of  foreclosure  is  suspended  by 
an  injunction,  the  time  of  redemption  does  not  run  pending  the 
injunction.  If  the  mortgagor  is  in  possession  and  remains  in  pos- 
session after  such  decree,  the  rents  and  profits  belong  to  him  ;  and 

1  Clark  V.  Reyburn,  8  Wall.  318,  323;  365;    Quarles    v.    Kniglit,  8    Price,    630; 
M'Kinstry  v.  Mervin,  3  Johns.  Ch.  466,  note;  Downing  v.  Palmateer,  1  Mon.  64, 66. 
Ferine  v.  Dunn,  4  Johns.  Ch.  140;   Harkins  ^  Mussina  v.  Bartlett,  8  Port.  277,  288. 
V.Forsyth,  11  Leigh,  294  ;  Barnes  v.  Lee,  1  ^  Nimrock  v.  Scanlin,  87  N.  C.  119  ;  Cap- 
Bibb,  526  ;  Murphy  v.  N.  H.  Sav.  Bank.  63  hart  v.   Biggs,  77  N.  C.  261,  267.     Tliree 
N.  H.  362.  months  is  the  usual  time  in  North  Carolina. 

2  See  §  1361.  ''  Mills  v.  Dennis,  3  Johns.  Ch.  367. 

3  Langdon  v.  Stiles,  2  Aik.  184.  «  Clark  v.  Keyburn,  8  Wall.  318;  John- 
*  Monkhouse  v.  Corporation  of  Bedford,    son  v.  Donnell,  15  111.  97  ;  Blanco  v.  Foote, 

17  Ves.  380;  Kenvoize  y.  Cooper,  1   S.  &  S.    32  Barb.  535, 

456 


PLEADINGS   AND   PRACTICE.  [§§  1566,  1567. 

tlie  mortgagee  cannot  recover,  upon  the  injunction  bond,  for  timber 
sold,  or  for  the  use  of  the  mortgaged  premises,  before  the  decree 
becomes  absolute,  where  the  value  of  the  premises  is  greater  than 
the  mortgage  debt.  If  the  mortgaged  premises  are  not  redeemed, 
and  are  insufficient  to  pay  the  debt  in  full,  the  mortgagee's  remedy- 
is  by  suit  for  the  balance  of  the  debt.^ 

1566.  A  foreclosure  in  equity  may  result  from  the  dismissal 
of  a  bill  to  redeem.  In  New  York  it  is  held  that  after  the  mort- 
gagor's failure  to  pay  within  the  time  limited,  a  final  order  that  the 
bill  be  dismissed  should  be  obtained,  and  that  until  this  is  done  no 
title  passes  to  the  mortgagee.^  In  Massachusetts  it  is  held  that, 
even  without  a  formal  order  of  dismissal,  a  mortgage  is  foreclosed 
upon  the  mortgagee's  obtaining  a  judgment  for  costs  after  the  mort- 
gagor has  failed  to  pay  the  amount  found  due  in  his  suit  for  redemp- 
tion within  the  time  ordered.  The  judgment  for  costs  substantially 
terminates  the  suit  upon  its  merits.^ 

1567.  The  eflfect  of  a  strict  foreclosure  is  not  to  extinguish 
the  debt,  unless  the  premises  are  of  sufficient  value  to  pay  it. 
When  this  is  sufiicient  the  debt  is  satisfied.  The  value  of  the 
property  may  be  ascertained  in  a  suit  at  law  upon  the  mortgage 
debt  to  recover  the  difference.^  Sometimes,  by  agreement  of  the  par- 
ties or  by  the  offer  of  the  plaintiff,  the  decree  transferring  the  ab- 
solute title  to  him  is  expressly  taken  in  full  satisfaction  of  the  debt, 
and  the  decree  should  then  so  provide.^  A  debt  not  included 
in  the  decree  is  not  satisfied  by  the  foreclosure ;  and  it  may  be 
shown  by  parol  whether  a  particular  debt  was  included  in  the  de- 

1  Hill  y.  Hill,  59  Vt.  125,  7  Atl.  Rep.  468.  provided    that   the  foreclosure   should   not 

-  See  §  1108;  Woody.  Surr,    19  Beav.  preclude  the  mortgage  creditor  from  recov- 

551  ;  Hansard  v.  Hardy,  18  Ves.  455,  460;  ering  the  difference  between    the   value  of 

Bolles  V.   Duff,  43   N.   Y.   469;  Beach   v.  the  property  estimated  at  the  expiration  of 

Cooke,  28  N.  Y.  508,  535,  86  Am.  Dec.  260 ;  the   time  limited   for   redemption    and  the 

Perine  y.  Dunn,  4  Johns.  Ch.  140.  mortgage  debt.     Laws  1878,  eh.  129,  §  2, 

*  Stevens  v.  Miner,  110  Mass.  57.  provided  for  the  appointment  of  appraisers 

■*  See  §  950;  Edgerton  v.  Young,  43  111.  to  determine  the  value  of  the  property.      It 

464,  470;  Vansant  y.  Allmon,  23  111.  30;  was  held  that  the  two  statutes  together  left 

Spencer  u.  Harford,  4  Wend.  381  ;  Morgan  it  optional  with  either  of  the  parties  whether 

V.  Plumb,  9  Wend.  287  ;  De  Grant  v.  Gra-  there  should  be  an  appraisal,  or  whether  the 

ham,  1  N.  Y.  Leg.  Obs.  75  ;  Bassett  f.  Ma-  court  should    determine  the   value  of    the 

.son,  18  Conn.  131,  136;  New  Haven  Pipe  property  upon  proper  evidence.     Windham 

Co.  V.  Work,  44  Conn.  230.     In  Connecti-  Co.  Sav.  Bank  v.  Hinies,  55  Conn.  433,  12 

cut  prior   to    1833   the    foreclosure    extin-  Atl.    Kep.    517.     In    Vermont   the   decree, 

guished  the  debt,  whatever  may  have  been  whether  upon  a   bill  in  chancery  or  in  an 

the  value  of  the  property.     Derby  Bank  v.  action  of  ejectment,  after  the  expiration  of 

Landoii,  3  Conn.  62,  63;  Swift  v.  Edson,  5  the  time  of  redemption,  operates  as  satis- 

<'onn.  531  ;  M'Ewen  v.  Welles,  1  Root, 202,  faction  in  whole  or  jiro  tunto,  as  the  case 

1  Am.  Dec.  39  ;  Fitch  v.  Coit,  1  Boot,  266.  may  be.     Paris  v.  Ilulctt,  26  Vt.  308. 

An  act  of  that  year  (G.  S.  1875,  p.  358,  §  2)  &  5  Wait's  Prac.  248,  249. 

457 


§§  1568,  1569.]   DECREE  OF  STRICT  FORECLOSURE. 

cree.i  But  the  decree  does  not  operate  to  satisfy  the  debt,  or  any 
part  of  it,  until  it  has  become  absolute  by  the  expiration  of  the 
time  limited  in  it  within  which  the  mortgagor  may  pay  the  debt 
and  redeem  the  estate.^ 

There  is  no  judgment  for  a  deficiency  in  this  form  of  foreclos- 
ure.^ The  statutes  providing  for  such  a  judgment  relate  wholly 
to  foreclosures  by  sale.  Very  frequently  the  plaintiff  releases  the 
mortgagor  from  personal  liability.  He  can  enforce  it  only  by  suit 
at  law. 

1568.  Costs,  —  Ordinarily  costs  will  be  allowed  as  upon  a  de- 
cree for  sale.  If,  however,  as  is  common  where  this  form  of  fore- 
closure is  used  only  in  special  cases,  the  mortgagee  has  proposed 
to  take  the  property  and  dischai'ge  the  debt,  no  costs  are  allowed. 
In  all  cases  the  court  has  discretionary  power  in  this  matter. 
When  a  purchaser  at  a  foreclosure  sale  brings  a  bill  for  a  strict 
foreclosure  against  a  prior  judgment  creditor  who  was  not  a  party 
to  the  former  foreclosure  suit,  if  he  wishes  to  redeem  he  must  pay 
the  costs  of  suit,  but  not  the  costs  of  the  suit  on  which  the  sale 
was  made.^ 

IV.   Setting  aside  and  opening  the  Foreclosure. 

1569.  A  strict  foreclosure  may  be  set  aside  for  many  of 
the  same  causes  for  which  a  foreclosure  sale  is  set  aside.^  As 
the  effect  of  the  decree  is  to  vest  an  absolute  title  in  the  holder  of  the 
mortgage,  so  long  as  he  retains  the  title  he  stands  very  much  in  the 
same  relation  to  the  property  and  to  the  mortgagor  as  does  a  mort- 
gagee who  has  bought  the  property  at  a  foreclosure  sale,  and  against 
whom  the  court  would  more  readily  set  aside  the  foreclosure  sale 
than  against  a  stranger  who  had  in  good  faith  made  the  purchase.** 
After  the  foreclosure  the  relations  of  the  parties  are  also  very  much 
the  same  as  they  would  be  if  the  mortgage  had  been  foreclosed  by 
entry  and  possession  in  the  manner  in  use  in  Massachusetts ;  and 
the  foreclosure  will  be  waived  or  opened  by  the  subsequent  deal- 
ings of  the  parties  between  themselves  in  the  same  manner ;  "*  as, 
for  instance,  by  the  payment  of  part  of  the  amount  due;^  by  their 
treating  the  debt  as  still  due ;  ^  or  by  their  agreeing  in  any  way 
that  the  foreclosure  shall  have  no  effect. ^^ 

1  Goddard  v.  Selden,  7  Conn.  515,  520.  ^  gge  §  1671. 

2  Peck's  Appeal,  31  Conn.  215.  ^  See  §§  1265-1275. 

3  Bean  v.  Whitcomb,  13  Wis.  431.  «  Converse  v.  Cook,  8  Vt.  164  ;  Smalley 
*  Benedict  v.  Gihnan,  4  Paige,  58 ;  Vroom  v.  liickok,  12  Vt.  153  ;  Gilson  v.  Whitney, 

V.  Ditmas,  4  Paige,  526.  51  Vt.  552. 

6  See  §§  1668-1681.  ^  Bissell  v.  Bozman,  2  Dev.  Eq.  154. 

458  10  Griswold  v.  Mather,  5  Conn.  435. 


SETTING   ASIDE   AND   OPENING   THE   FORECLOSURE.       [§  1569. 

The  opening  of  a  decree  of  foreclosure  does  not  depend  upon  the 
inquiry  whether  the  proceedings  in  the  case  were  regular,  but  may 
depend  wholly  upon  equitable  considerations  in  any  way  affecting 
the  rights  of  parties.^  Where  the  failure  of  the  mortgagor  to  pay 
according  to  the  decree  was  not  through  his  own  negligence,  but  in 
consequence  of  propositions  for  settlement  and  payment  which  were 
to  be  carried  into  effect  after  the  time  of  payment  had  expired, 
and  the  failure  to  perform  this  was  on  the  part  of  the  mortgagee, 
the  decree  of  foreclosure  was  opened.^  The  mortgagee's  promise  to 
give  the  mortgagor  further  time  for  redemption  after  the  expiration 
of  the  decree  does  not  entitle  the  mortgagor  to  claim  that  the  de- 
cree be  opened,  if  he  has  made  no  offer  to  perform  his  part  of  the 
agreement.^  A  promise  by  the  holder  of  a  mortgage  or  decree  of 
foreclosure  to  allow  a  redemption  after  the  expiration  of  the  decree 
is  equally  binding  upon  one  who  purchases  the  decree  with  know- 
ledge of  such  promise.*  A  decree  was  opened  after  the  expiration 
of  the  time  limited  for  redemption,  for  the  reason  that  the  mortga- 
gor, having  paid  part  of  the  debt,  fell  sick  on  a  journey  undertaken 
for  the  purpose  of  obtaining  the  balance  of  the  money,  and  was 
unable  to  get  back  until  ten  days  after  the  time  limited,  when  he 
tendered  the  amount.^  It  was  opened,  also,  in  a  case  where  the 
mortgagor  supposed  he  had  made  a  valid  tender  within  the  time 
limited,  though  by  informality  it  was  not  good.^ 

If  the  mortgagor  against  whom  a  decree  of  foreclosure  has  been 
entered  limiting  the  time  of  redemption  to  a  particular  day  is  pre- 
vented from  paying  the  debt  and  redeeming,  by  the  happening  of 
an  unforeseen  event  over  which  he  had  no  control,  a  court  of  equity 
will  open  the  foreclosure.  This  was  done  in  a  case  where  the  fore- 
closure was  to  become  absolute  on  the  fifth  day  of  August.  The 
property  was  worth  moi'e  than  eight  thousand  dollars,  and  was 
nearly  all  the  mortgagor  had,  and  the  debt  was  less  than  four  thou- 
sand dollars.  The  mortgagor  had  relied  upon  receiving  the  money 
from  an  uncle  who  had  ample  means,  and  had  promised  to  furnish 
it  on  the  third  day  of  August,  but  unexpectedly  failed  to  do  so.  On 
the  evening  of  the  fifth  day  of  August  the  mortgagor  procured  a 
person  who  had  the  necessary  amount  in  United  States  bonds,  but 
not  in  money,  to  go  to  the  mortgagee's  house  that  evening.  This 
person,  finding  that  the  mortgagee  had  gone  to  bed,  sent  him  word 

1  Bridgeport  Ravings  Bank   v.  Eldredge,  *  Woodward  v.  Cowdery,  41  Vt.  496. 
28  Conn.  556,  73  Am.  Dec.  688.  &  Doty  v.  Whittlesey,  1  Root,  310. 

2  Pier.'^on  v.  Clayes,  15  Vt.  93.  «  Crane  v.  Hanks,  1  Koot,  468. 

3  Blodgetty.  Iloburt,  18  Vt.  414. 

459 


§  1570.]  DECREE   OF   STRICT   FORECLOSURE. 

by  his  wife  that  he  had  come  to  redeem  the  mortgaged  property  ;  to 
which  the  mortgagee  replied  that  he  was  sick,  and  so  nothing  further 
was  done.     The  mortgagor  was  allowed  to  redeem.^ 

If  the  mortgagee,  after  a  decree  of  foreclosure  and  before  the 
expiration  of  the  time  limited  for  redemption,  says  to  the  mortgagor 
that  he  may  pay  the  debt  after  the  time  limited,  and  that  no  ad- 
vantage should  be  taken  of  the  decree,  and  the  mortgagor  in  con- 
sequence allows  the  time  to  expire  without  paying  the  debt,  the 
foreclosure  will  be  opened.  The  mortgagor  is  also  entitled  to  equi- 
table relief  if  the  decree  has  been  obtained  by  fraud,  or  if  after  it  is 
obtained  he  is  deceived  in  relation  to  the  time  limited  for  redemp- 
tion, and  he  consequently  fails  to  redeem  ;  ^  or  if  no  service  of  the 
summons  was  made  upon  him,  and  he  had  no  actual  knowledge  of 
the  pendency  of  the  suit  until  after  the  time  of  redemption  had  ex- 
pired, though  the  decree  found  that  service  had  been  made.^ 

Where  the  parties  to  a  foreclosure  suit  agreed  upon  a  time  for 
redemption  to  be  limited  b}'^  the  decree,  but  by  mistake  the  time 
was  not  inserted  in  the  decree,  the  mortgagor  at  the  end  of  three 
years  after  the  time  so  limited  by  agreement  was  not  allowed  to  open 
the  foreclosure  and  redeem.  The  mortgagor  could  equitably  ask  for 
nothing  more  than  the  correction  of  the  mistake,  and  this  would 
avail  him  nothing.^  This  relief  may  be  had  on  an  ordinary  bill  to 
redeem,  taking  no  notice  of  the  decree  of  foreclosure.^ 

1570.  In  any  case  where  proper  service  has  not  been  made 
on  a  defendant?,  the  foreclosure  will  be  opened,  or  he  will  be  al- 
lowed on  application  to  have  the  judgment  set  aside  and  to  appear 
in  the  suit.^  In  his  application  for  such  relief  he  must  tender  pay- 
ment of  the  mortgage  debt,  or  show  his  readiness  to  do  so."  Where 
notice  of  a  bill  for  foreclosure  was  ordered  by  the  court  to  be  given 
by  mailing  an  attested  copy  of  the  bill  to  the  parties  interested  in 
the  property,  and  a  subsequent  mortgagee  did  not  receive  the  notice, 
and  had  no  knowledge  of  the  suit  until  after  a  decree  had  been 
passed  and  the  time  limited  for  redemption  had  expired,  the  fore- 
closure was  opened  and  further  time  for  redemption  allowed.^ 

1  Bostwick  V.  Stiles,  35  Conn.  195.  ^  Fall  v.  Evans,  20  Ind.  210 ;  Mitchell  v. 

-  "Weiss  V.  Ailing,  34  Conn.  60.  Gray,  18  Ind.  123.     Wilkinson  v.  Cliilsou, 

3  Bridgeport  Savings  Banki;.  Eldredge,  71  Wis.  131,  36  N.  W.  Rep.  836. 

28  Conn,  556,  561.  7  Hatch  v.  Garza,  7  Tex.  60. 

*  Colwell  V.  Warner,  36  Conn.  224.  ^  Bank  v.  Norwich  Savings  Society,  37 

5  Bridgeport  Savings  Bank  u.  Eldredge,  Conn.  444. 
28  Conn.  556,  73  Am.  Dec.  688. 

460 


CHAPTER   XXXV. 


DECREE   OF    SALE. 


I.  A  substitute  for  foreclosure,  1571-1573. 
II.  The  form  and  requisites  of  the  decree, 
1574-1586. 


III.  Theconclu-sivenessof  the  decree,  1587- 

1589. 

IV.  The  amount  of  the  decree,  1590-1601. 
V.  Costs,  1602-1607. 


I,  A  /Substitute  for  Foreclosure. 
1571.  Generally,  —  As  already  noticed,  the  earliest  remedy 
sought  in  chancery  in  the  foreclosure  of  mortgages  was  a  decree 
wholly  cutting  off  the  debtor's  right  to  redeem,  and  vesting  the 
estate  absolutely  in  the  mortgagee.  This  procedure,  when  the 
property  exceeded  in  value  the  debt,  sometimes  operated  harshly 
upon  the  debtor.  It  operated  unjustly  to  the  creditor  as  well  when 
the  property  was  insufficient  to  pay  the  debt,  because  no  convenient 
remedy  was  afforded  him  to  collect  the  deficiency.  A  more  equi- 
table system  was  early  adopted  by  the  courts  in  this  country,  under 
which  the  property  was  sold  for  the  benefit  of  the  parties  interested, 
and  the  proceeds  applied  first  to  the  payment  of  the  mortgage  debt, 
and  the  surplus,  if  any,  paid  to  the  debtor  or  his  assigns.  If  a 
balance  of  the  debt  remained  unpaid  after  applying  the  proceeds 
of  the  property,  an  action  at  law  might  be  had  against  the  debtor 
to  recover. 

Now  in  many  States,  under  the  new  codes  of  civil  practice,  the 
formal  distinction  between  suits  in  equity  and  suits  at  law  has  been 
done  away  with,  and,  though  foreclosure  remains  of  course  an  equi- 
table procedure;  provision  is  made  for  a  decree  or  judgment  in  this 
proceeding,  not  only  for  a  sale  of  the  property,  but  also  for  a  re- 
covery of  any  balance  of  the  debt  remaining  after  the  sale,  thus 
avoiding  the  necessity  of  a  separate  action  at  law. 

1572.  In  England  the  usual  practice  formerly  was  to  decree  a 
strict  foreclosure,  'though  the  Court  of  Chancery  had  the  power, 
without  the  aid  of  any  statute,  to  order  a  sale  of  the  property.^ 
Now  it  is  provided  by  the  Chancery  Improvement  Act,^  that  upon 


^  2  Story's  Eq.  §§  1024-1026.  In  Irehind 
the  decree  is  always  for  a  sale.  Ilutton  v. 
Mayne,  3  Jo.  &  Lat.  586. 


2  15  &  16  Vict.  ch.  86,  §  48. 


461 


§  1573.]  DECREE  OF  SALE. 

the  request  of  the  mortgagee,  or  of  any  subsequent  incumbrancer, 
or  of  the  mortgagor,  or  of  any  person  chiiining  under  them  respec- 
tively, the  court  may,  instead  of  a  foreclosure,  direct  a  sale  of  the 
property  upon  such  terms  as  it  may  deem  proper.  The  consent  of 
the  mortgagee,  or  those  claiming  under  liim,  is  requisite  to  a  sale, 
when  the  request  for  it  is  made  by  any  other  person,  unless  the  party 
making  the  request  deposits  a  reasonable  sum  of  money  for  the  pur- 
pose of  securing  the  performance  of  such  terms  as  the  court  may 
impose  upon  him.^  Under  this  statute  the  parties  have  no  absolute 
right  to  require  a  sale,  but  the  court  has  power  in  its  discretion  to 
grant  it ;  and  this  is  now  the  usual  course.  A  sale  may  be  directed 
against  the  wish  of  the  mortgagor.^  Where  the  security  has  been 
scanty,  it  has  always  been  deemed  proper  to  direct  a  sale  ;  ^  as  also 
when  the  property  was  unproductive.* 

An  equitable  mortgagee  by  deposit  of  title  deeds  is  entitled  to  a 
decree  of  foreclosure  instead  of  sale.^  The  usual  practice  in  grant- 
ing a  sale  of  the  property  was  to  give  a  limited  time,  varying  from 
one  month  "^  to  six  months,''  within  which  the  mortgagor  might 
redeem  before  the  sale.  Sometimes,  however,  an  immediate  sale 
was  ordered,  as  where  the  property  was  unproductive,^  or  where  for 
any  reason  this  seemed  to  be  for  the  benefit  of  all  the  parties.^  It 
was  also  the  practice,  in  case  the  equity  of  redemption  belonged  to 
an  infant  heir  or  devisee,  to  direct  a  sale  with  the  consent  of  the 
mortgagee,  because  a  sale  would  bind  the  infant,  but  he  would  be 
entitled  to  a  day  after  coming  of  age  to  show  cause  against  a  decree 
of  foreclosure.^*^ 

But  in  this  country  a  sale,  with  rare  exception,  being  made  in  all 
cases,  the  only  inquiry  where  infants  are  concerned  is,  whether  a 
sale  of  the  whole  or  of  a  part  of  the  premises  will  be  most  for  the 
infant's  benefit,  and  a  reference  should  be  made  to  ascertain  this  fact, 
and  what  part  shall  be  sold  if  less  than  the  whole.^^ 

1573.  Independently  of  all  statutory  provisions,  a  court  of 
equity  has  jurisdiction  to  order  a  sale  and  provide  for  carrying  it 

1  The  deposit  must  be  sufficient  to  cover  ^  Bellamy  v.  Cockle,  18  Jur.  465;  Dan- 
an  uusuccessful  attempt  to  sell.     Bellamy    iell's  Ch.  p.  1152. 

V.  Cockle,  18  Jur.  465.  ^  Foster  v.  Harvey,  U  Weekly  R.  899. 

2  Newman  v.  Selfe,  33  Beav.  522.     And  »  Hewitt  v.  Nanson,  28  L.  J.  (Gh.)  49. 
sec  Woodford  v.   Brooking,  L.  R.  17   Eq.  i'^  Fisher's  Mortg.  pp.  526,  1018;  Schole- 
425.  field   I'.    Heafield,    7    Sim.  667 ;    Davis    v. 

3  Diishwood  V.  Bithazey,  Moseley,  196.        Dowdiug,  2  Keen,  245;  Booth   v.  Rich,  1 
*  How  V.  Vigures,  1  Ch.  R.  18.  Vern.  295. 

5  James  v.  James,  L.  R.  16  Eq.  153.  "  Mills  v.  Dennis,  3  Johns.  Ch.  367. 

^  Smith  y.  Robinson,  1  Sm.  &  Gift.  140; 
Staines  v.  Rudlin,  16  Jur.  965. 

462 


A   SUBSTITUTE   FOR   FORECLOSURE.  [§  1673. 

out,i  althougli  in  most  of  the  States  where  foreclosure  is  effected  by 
a  judicial  sale  there  are  statutes  providing  for  this,  and  regulating 
it.  No  sale  can  be  made  without  a  decree  of  court  for  that  pur- 
pose first  obtained.^  Although  the  practice  of  foreclosure  and  sale 
of  the  mortgaged  property  in  equity  is  traced  to  the  civil  law,^ 
where  the  remedy  was  generally  by  a  proceeding  in  rem  for  a  sale 
of  the  property,  yet  under  that  law  it  was  not  indispensable  that 
the  mortgagee  should  obtain  a  judicial  decree  for  such  sale;  the 
mortgagee  might  also  by  liis  own  act,  after  giving  a  certain  pre- 
scribed notice  to  the  debtor,  sell  the  property  and  reimburse  himself 
from  the  proceeds  of  the  sale.'*  If  the  debtor  could  not  be  found 
so  as  to  serve  the  notice  upon  him,  an  order  of  court  was  necessary. 
This  right  to  sell  was  not  confined  to  cases  where  the  parties  had 
expressly  provided  for  it,  but  might  be  exercised  as  well  when  the 
mortgage  itself  was  silent  upon  the  matter.^  But  under  the  com- 
mon law  practice  the  mortgagee  is  never  allowed  to  sell  by  his  own 
voluntary  act  without  a  judicial  decree,  except  when  a  power  of  sale 
is  expressly  given  him  ;  and,  even  when  he  has  such  special  author- 
ity, in  some  States  it  is  required  by  statute  that  a  decree  for  the  sale 
shall  first  be  obtained,  and  the  sale  thus  becomes  a  judicial  sale 
rather  than  a  sale  under  the  power. 

There  is  no  rule  in  equity  which  prevents  a  mortgage  creditor 
from  taking  a  general  decree  of  foreclosure  on  the  mortgage  for  the 
reason  that  he  has  already  obtained  a  judgment  lien  on  other  real 
estate  of  the  moi*tgage  debtor  for  the  same  debt.^ 

A  decree  for  the  foreclosure  of  a  mortgage  is  not  a  lien  on  any 
real  estate  of  the  defendant  other  than  that  embraced  in  the  mort- 
gage, although  the  decree  be  in  form  that  the  complainant  recover 
of  the  defendant  a  specific  sum  of  money.'^ 

1  Lansing  v.    Goelet,   9    Cow.  346,  352,  100.     "  There  never  was  an  instance,"  saya 

where   Cliancellor  Jones,    in  an   elaborate  Chancellor  Kent,  "in  which    the   creditor 

opinion,  justifies  the  practice  of  courts  of  holding  land  in  pledge  was  allowed  to  sell 

equity  in  ordering  sales;   Mills  v.  Dennis,  3  at  his  own  will  and  pleasure." 

Johns.  Ch.  367  ;  Williams's  case,  3  Bland,  ^  Story's  Eq.  Juris.  §§  1008,  1011. 

186,  193;    Belloc   v.    Rogers,  9   Cal.   123;  *  Story's  Eq.  Juris.  §§  1008,  1024. 

Green  v.  Crockett,    2  Dev.  &  B.  Eq.  390,  ^  gtory's  Eq.  Juris.  §  1009.     "Even  an 

393.  agreement  between  tiiem,  that  there  should 

The  earliest  statute  in  New  York  recog-  be  no  sale,  was  so  far  invalid  that  a  decretal 

nizing  a  foreclosure  sale  is  that  of  April  3,  order  of  sale  might  be  obtained  upon  the 

1801  ;  Laws  of  N.  Y.  (Webster  &  Skinner's  application  of  the  creditor." 

ed.)  443 ;  though  it  is  said  that  the  practice  ®  Gushee  v.   Union  Knife  Co.  54  Conn, 

of  selling  the  mortgaged  property  prevailed  101. 

under  the  colonial  government.  ''  Scott  v.  Russ,  21  Fla.  260;    Clapp  v. 

-  Hart  V.  Ten  Eyck,  2  Johns.  Ch.  62,  Maxwell,  13  Neb.  542. 

463 


§§  1574,  1575.]  DECREE   OF   SALE. 

II.    The  Form  and  Requisites  of  the  Decree. 

1574.  In  general.  —  The  decree  for  the  sale  of  the  premises 
should  contain  a  description  of  the  property  to  be  sold;  a  state- 
ment of  the  amount  of  the  debt ;  a  direction  that  the  premises,  or 
so  much  of  them  as  may  be  necessary,  shall  be  sold  by  an  officer 
designated,  who  shall  execute  a  deed  to  the  purchaser ;  and  that 
out  of  the  proceeds  of  the  sale  he  pay  to  the  plaintiff  the  amount 
of  his  debt,  interest,  and  costs,  together  with  the  expenses  of  the 
sale.  It  is  usual  to  provide  that  the  plaintiff  may  purchase  at 
the  sale,  and  that  the  purchaser  shall  be  let  into  possession  on  the 
production  of  the  deed.  If  a  personal  judgment  is  asked  for  and 
is  proper,  the  defendants,  who  are  personally  liable  for  the  debt, 
must  be  designated.^  A  personal  judgment  against  the  defendant, 
followed  by  the  usual  order  of  sale,  may  be  regarded  as  a  finding 
of  the  amount  due,  and  is  in  effect  a  judgment  of  foreclosure  and 
sale.2  If  redemption  is  allowed  after  sale,  this  right  should  be  pro- 
vided for  in  the  decree,  athough  it  will  not  be  considered  as  denied 
if  not  provided  for.^ 

As  regards  the  description,  an  order  for  the  sale  of  the  "  mort- 
gaged premises  mentioned  in  complainant's  bill  "  is  not  void  be- 
cause followed  by  an  erroneous  description,  if  the  premises  are 
correctly  described  in  the  bill  in  the  master's  report  of  sale,  which 
is  confirmed  by  the  final  decree,  and  in  the  master's  deed  of  the 
property.  The  grantee  in  such  deed  acquires  a  valid  title  to  the 
property.^  A  decree  which  designates  an  entire  tract  of  land  by 
name,  giving  the  number  of  acres,  the  county  in  which  it  is  situated, 
the  adjoining  survey,  and  the  beginning  corner,  is  not  void  for  want 
of  description.^ 

1575.  The  decree  and  order  of  sale  may  properly  follow  the 
terms  of  the  mortgage,  when  this  upon  its  face  appears  to  con- 

1  Leviston  v.  Swan,  33  Cal.  480,  5  Wait's  process  than  in  those  contained  in  deeds 
Prac.  218.  between  private  parties.      Mitchell  v.  Ire- 

2  Boynton  v.  Sisson,  56  Wis.  401,  14  land,  54  Tex.  301.  And  where  the  de- 
N.  W.  Rep.  373.  scription  is  of  a  part  of  a  tract  or  survey, 

8  Boester  v.  Byrne,  72  111.  466 ;  Charter  leaving    an   undesignated   portion   unsold, 

Oak   L.  Ins.    Co.    v.   Stephens  (Utah),  15  and  there  is  no  means  of  distinguishing  it 

Pac.  Rep.  253.  from  the  portion  sold,  the  description  would 

*  Thompson  v.  Crocker  (Colo.),  32  Pac.  be  insufficient.      Wilson  v.  Smith,  50  Tex. 

Rep.  831.  366.     In  the  present  case,  however,  ...  it 

^  Thompson  v.  Jones,  77  Tex.  626,  12  cannot  be  .said  from  the  face  of  the  jndg- 
S.  W.  Rep.  77,  per  Hobby,  J.  "  It  is  true  ment  and  order  of  sale  that  they  are  void 
that  less  indulgence  is  shown  in  favor  of  for  want  of  description.  Knowles  v.  Tor- 
descriptions  of  property  contained  in  deeds  bitt,  53  Tex.  557  ;  Steinbeck  v.  Stone,  53 
based  on  compulsory  sales  under    judicial  Tex.  382." 

464 


THE    FORM    AND    REQUISITES    OF   THE   DECREE.  [§  1576. 

vey  the  entire  estate,  and  the  officer  must  sell  accordingly ;  but 
the  purtihiiser  will  take  only  the  interest  the  mortgagor  had  in  the 
premises,  and  it  is  no  ground  for  reversal  that  the  mortgagor  hail 
only  an  equitable  interest.^  If  the  mortgagor  had  no  title  to  a 
portion  of  the  premises  embraced  in  the  mortgage,  this  portion  may 
properly  be  omitted  from  the  order  of  sale.^  When  the  terms  of 
the  mortgage  are  followed  in  the  direction  of  sale,  and  the  sherift' 
or  referee  sells  a  less  estate  than  that  expressed-  in  the  mortgage, 
as,  for  instance,  a  leasehold  estate  when  the  mortgage  erroneously 
described  an  estate  in  fee,  the  sale  transfers  all  the  title  the  mort- 
gagor had  in  the  premises,  and  it  does  not  lie  with  the  mortga- 
gor, nor  with  a  purchaser  who  has  full  knowledge  of  the  facts,  to 
object.^ 

It  is  usual  to  embody  in  the  order  of  sale  a  full  description  of 
the  property  to  be  sold,  with  the  particular  boundaries  of  it,  so  far 
at  least  as  they  can  be  ascertained  from  the  mortgage.  But  this 
is  not  essential.  The  decree  of  sale,  instead  of  describing  the 
mortgaged  property  at  length,  may  direct  a  sale  of  the  premises 
as  described  in  the  complainant's  bill;  and  if  the  preinises  are 
properly  described  in  the  bill  or  in  the  mortgage,  and  this  is  made 
part  of  the'bill  as  an  exhibit,  no  formal  description  is  necessary  in 
the  decree.^  But  if  it  cannot  be  ascertained  to  what  land  the  de- 
cree refers,  it  will  be  void  for  indefiniteness.^  If  the  original  mort- 
gage contains  in  the  description  of  the  premises  a  latent  ambiguity 
which  renders  it  uncertain  what  are  the  boundaries,  the  court  may 
by  its  judgment  fix  the  boundaries  of  the  land  with  reference  to  the 
foreclosure  sale.^ 

If  the  decree  makes  unnecessary  and  erroneous  recitals  in  regard 
to  the  note  and  mortgage,  the  errors  should  be  regarded  as  clerical 
errors,  it  appearing  from  the  whole  record,  with  reasonable  cer- 
tainty, that  the  decree  was  rendered  in  the  cause  of  action  set  up 
in  the  foreclosure  suit.' 

1576.  Order  of  sale.  —  If  portions  of  the  premises  have  been 
sold  subsequent  to  the  mortgage,  the  decree  should  provide  that 
the  portion  still  owned  by  the  mortgagor,  or  the  person  equitably 

^  Jones  V.  Lapliam,  15  Kans.  540  ;  Norris  State  iu  which  the  property  is  situated,  see 

V.  Luther,  101    N.  C.  196,  8   S.  E.  Kep.  95;  Burton  v.  Ferguson,  69  Ind.  486. 

Schwartz  I'.  Palm,  65  Cal.  54.  As    to    sufficiency    of     description,    see 

-  Castro  V.   lilies,  22  Tex.  479,  73  Am.  Thompson  v.  Jones,  77  Tex.  626,  12  S.  W. 

Dec.  277.  Rep.  77. 

3  Graham  v.  Bleakie,  2  Daly,  55.  ^  Kibbe  v:  Thompson,  5  Biss.  226. 

*  Logan  V.  Williams,  76  111.  175.  6  ^oe  v.  Vallejo,  29  Cal.  385. 

As  to  omission  of  name  of  county  and  "  Hague  v.  Jackson,  71  Tex.  761,  12  S. 

W.  Rep.  63. 

VOL.  II.               30  465 


§  1577.]  DECREE   OF   SALE. 

bound  to  pay  the  debt,  shall  be  first  sold,  and  then  the  portions 
previously  alienated  in  the  inverse  order  of  their  alienation. ^  If 
a  party  to  the  suit  desires  to  have  the  premises  sold  in  a  particular 
order,  he  should  see  that  the  decree  so  provides ;  or  after  the  entry 
of  the  decree  he  may  move  for  an  order  to  the  referee  directing  the 
manner  in  which  the  premises  are  to  be  sold.^  In  order  to  ascer- 
tain the  resj)ective  equities  of  different  owners,  the  court  may  order 
a  reference."^  If  the  owner  of  the  land  makes  no  request  as  to  the 
order  in  which  several  tracts  of  land  included  in  the  mortgage  shall 
be  sold,  he  cannot  upon  appeal  object  to  a  decree  of  court  definitely 
fixing  the  order  of  sale.^ 

Where  a  mortgage  covers  several  parcels  of  land,  and  the  court 
finds  that  the  mortgagee  is  entitled  to  a  sale  thereof,  it  has  no  au- 
thority to  except  any  part  of  the  land  from,  the  decree  of  sale,  though 
the  value  of  the  remainder  is  greater  than  the  amount  of  the  debt. 
The  creditor  has  a  right  to  resort  to  his  entire  security  in  a  legal 
manner.'^ 

1577.  Where  only  part  of  the  debt  or  an  instalment  of  in- 
terest is  due,  and  the  premises  can  be  sold  in  parcels,  the  decree 
should  be  for  the  absolute  sale  of  so  much  as  will  raise  the  amount 
actually  due.*'  If  the  premises  cannot  be  sold  in  parcels,  the  judg- 
ment should  direct  the  sale  of  the  whole,  and  the  payment  to  the 
plaintiff  of  the  amount  actually  due,  and  that  the  surplus  be  brought 
into  court  to  await  further  order."  In  such  case  it  should  appear 
of  record  that  the  court  had  first  inquired  whether  the  land  could 
be  sold  in  parcels.^  A  decree  directing  a  sale  "  according  to  law" 
has  been  held  sufl[icient,  although  a  statute  required  the  court  to 
direct  a  sale  of  the  premises,  "or  so  much  thereof  as  is  necessary."  ^ 
When  part  of  the  mortgaged  property  has  been  sold  for  the  pay- 

1  New  York  Life  Ins.  &  Trust  Co.  v.  ^  James  v.  Fisk,  17  Mif^s.  144,  47  Am. 
Milnor,  1  Barb.  Ch.  353;  Kiiiukerbacker  Dee.  Ill  ;  Roe  v.  Nicholson,  13  Wis. 
V.  Eggleston,  3  How  Pr.  130;  Rathbone  373;  Hunt  v.  Dohrs,  39  Cal.  304;  Harris 
V.  Clark,  9  Paige,  648;  Worth  r.  Hill,  14  v.  Makepeace,  13  Ind.  .560;  Denny  v. 
Wis.  559;  State  v.  Titus,  17  Wis.  241;  Graeter,  20  Ind.  20;  Beauchamp  f.  Leagan, 
Ogden  V.  Glidden,  9  Wis.  46;  Warren  ?».  14  Ind.  401  ;  Probasco  i\  Van  Eppes  (N. 
Foreman,  19  Wis.  35;  Cheever  v.  Fair,  5  J),  13  Atl.  Rep.  598.  See  §§  1478,  1619, 
Cal.  337.  1700. 

2  Vaiidercook   v.   Cohoes    Sav.    Inst.    5  '  Walker  f.  Jarvis,  16  Wis.  28. 

Hun,  641.  »  Cubberly  y.  Wine,  13  lud.  353 ;  Wain- 

8  Bard  v.  Steele,  3  How.  Pr.  110;  New  scott  v.  Silvers,   13  Ind.  497;    Stewart   v. 

York  Life  Ins.  &  Trust   Co.  v.  Cutler,  3  Nettleion,  13  Wis.  465. 

Sandf.  Ch.  176.  9  Treiber  r.  Shaffer,  18  Iowa,  29.     Aud 

*  Price  V.  Lauve,  49  Tex.  74.  see  Kirbj  v.  Childs,  10  Kans.  639. 

*  Baker  v.  Marsh,  1  N.  Dak.  20, 44  N.  W. 
Rep.  662. 

466 


THE   FORM   AND   RKQUISITES   OK   THE   DECREE.  [§  1578. 

nient  of  one  instiilment,  a  further  decree  of  sale  may  be  liad  for  an 
instalment  subsequently  falling  due.^  Wlien  only  one  cf  several 
notes  is  due,  the  foreclosure  suit  is  on  that  note  alone,  though  all 
the  notes  aic  casually  mentioned  in  the  bill  in  stating  the  nature  of 
the  mortgage.^  Although  the  suit  was  commenced  when  only  a 
part  of  the  debt  or  one  instalment  of  it  was  due,  if  the  whole  debt 
becomes  due  before  the  decree  is  entered,  this  should  be  in  tiie  ordi- 
nary form  for  a  sale  of  the  property  to  satisfy  the  whole  debt.^ 

Where  a  decree  directs  a  sale  subject  to  the  mortgage  for  the 
part  of  the  debt  not  due,  and  the  officer  announces  that  the  sale 
will  be  made  in  this  manner,  his  failure  to  state  this  fact  in  his 
certificate  of  purchase  and  in  his  report  of  the  sale,  and  the  omis- 
sion of  this  fact  in  the  confirmation  of  the  sale,  do  not  alfect  or 
modify  the  original  decree,  or  release  the  lien  reserved  for  the  un- 
foreclosed  part  of  the  debt.  Under  a  decree  for  a  sale  subject  to 
a  lien  specified,  parol  testimony  is  admissible  to  show  that  the  prop- 
erty was  offered  for  sale  subject  to  such  lien.^ 

A  foreclosure  for  an  instalment  due  before  the  principal  amount, 
and  a  sale  of  the  entire  property,  pass  the  interest  of  both  mort- 
gagor and  mortgagee  in  the  property,  and  a  clear  title  to  the  pur- 
chaser.^ The  court  may  order  payment  of  the  instalment  due ; 
but  if  the  property  be  indivisible  so  that  a  larger  amount  is  re- 
ceived than  is  needed  for  that  purpose,  the  court  may  retain  custody 
of  the  surplus  and  jurisdiction  of  the  case  until  the  whole  debt 
falls  due.*^ 

The  power  to  foreclose  and  sell  for  the  principal  sum  secured  by 
a  mortgage,  on  account  of  the  non-payment  of  an  instalment  due, 
or  of  interest  accrued,  or  taxes,  exists  when  it  is  stipulated  in  the 
mortgage  that  in  case  of  such  non-payment  the  mortgagee  may  sell 
the  premises  and  pay  the  debt  from  the  proceeds." 

1578,  The  decree  should  not  attempt  to  give  any  relief  not 
sought  for  in  the  pleadings ;  ^  if  it  does,  it  will  be  vacated  on  mo- 

1  riemintr  v.  Soutter,  6  Wall.  747;  Mc-  Palmer,  73  Iowa,  446,  35  N.  W.  Rep.  51.5, 

Dougal  V.  Downey,  45  Cal.  165.  5  Am.  St.  Kep.  691  ;  Grattau  v.  Wiggins, 

■^  Anderson   v.  Pilgram,  30  S.  C.  499,  9  23  Cal.  16. 

S.  E.  Rep.  587.  6  McDowell  v.  Lloyd,  22  lown,  448  ;  Bur- 

3  Smalley   v.   Martin,   Clarke    (N.    Y.),  rouglis  y.  Ellis,  76  Iowa,  649,38  N.  W.  Rep. 

293;    Manning  v.   McClurg,  14  Wis.  3.50 ;  141;  Clark  v.  Abbott,  1   Madd.   Ch.  474; 

Buchanan  v.  Berkshire  L.  Ins.  Co.  96  Ind.  Mussina  v.  Bartlett,  8  Port.  277,  284 ;  Smal- 

510,  524.  ley  v.  Martin,  Clarke,  293  ;  Adams  v.  Essex, 

*  Hughes  V.  Frisby   81  111.  188.  1  Bibb,  149,  4  Am.  Dec.  623. 

•^  Escher  v.  Simmons,  54  Iowa,  269,  6  N.  ''  Pope  v.  Durant,  26  Iowa,  233;  Kramer 

W.  Rep.  274;  Poweshiek  Co.  v.  Dennison,  v.  Rebman,  9  Iowa,  114. 

36  Iowa,  244,  14  Am.  Rep.  521  ;  Harms  v.  ^  Kuowles  v.  Rablin,  20  Iowa,  101. 

4t)7 


§§  1579,  1580.]  DECREE   OF   SALE. 

tion.i  But  sometimes,  under  the  general  prayer  for  relief,  the  court 
may  grant  relief  not  specifically  asked  for.  Thus  where  a  railroad 
mortgage  contained  a  provision  that  in  case  of  a  foreclosure  sale  the 
holders  of  a  majority  of  the  bonds  secured  by  the  mortgage  should 
in  writing  request  the  trustee  to  purchase  the  premises  for  the  use 
and  benefit  of  the  bondholders,  he  should  be  authorized  to  do  so, 
and  the  deed  of  trust  was  made  a  part  of  the  bill,  it  was  held  to  be 
proper  to  grant  the  relief  specifically  which  the  provisions  of  the 
deed  of  trust  contemplated.^ 

1579,  It  should  not  attempt  to  interfere  with  the  rights  of 
any  who  are  interested  in  the  property,  but  are  not  made  par- 
ties to  the  suit ;  and  it  is  ineffectual  so  far  as  it  does  this.^  It 
should  protect  the  rights  of  a  defendant  whose  title  to  a  part  of 
the  premises  is  paramount,  although  he  could  not  be  dispossessed 
of  such  part  under  the  decree,  even  if  no  reservation  is  made  in 
respect  to  it.*  Only  the  rights  and  interests  possessed  b}^  the  mort- 
gagor at  the  date  of  the  mortgage  can  be  sold.  A  judgment  which 
forecloses  a  prior  mortgage  is  irregular,  and  may  be  opened  on 
motion  of  the  prior  mortgagee.^  The  rights  of  subsequent  mort- 
gagees who  are  made  parties  to  the  suit  are  generally  sufficiently 
protected  by  the  general  direction  in  the  decree  for  the  payment 
of  the  surplus  money  into  court,  and  by  the  subsequent  proceed- 
ings for  its  distribution  ;  though  the  practice  in  some  courts  has 
been  to  determine  the  rights  of  junior  mortgagees  in  the  first 
place,  and  direct  the  payment  of  the  surplus  towards  the  satisfac- 
tion of  them.^ 

But  the  rights  of  subsequent  incumbrancers  may  be  protected 
by  the  court  in  the  sale  of  the  property,  where  a  portion  of  -it  is 
sufficient  to  satisfy  the  mortgage,  by  ordering  the  sale  of  enough, 
so  that  the  other  incumbrancers  may  be  paid."  And  where  after 
the  decease  of  the  mortgagor  it  appeared  to  be  for  the  benefit  of  his 
children  that  the  entire  mortgaged  premises  should  be  sold,  though 
the  mortgage  might  have  been  satisfied  by  a  sale  of  a  part,  the 
court  ordered  the  sale  of  the  whole.^ 

1580.  "When  a  junior  mortgagee  forecloses  his  mortgage  by 

1  Simonson  r.   Blake,  12  Abb.  Pr.  331,        ^  Wicke  v.  Lake,  21  Wis.  410,  94  Am. 

20  How.  Pr.  484.  Dec.  552  ;  San  Francisco  v.  Lawton,  21  Cal. 

-  Satie   V.  Cent.  R.  R.  Co.  of  Iowa,  99  589,79  Am.  Dec.  187;  Elias  v.  Verduyo, 

U.  S.  334,  13  West.  Jur.  218.  27  Cal.  418. 

3  Watson    V.    Spence,   20    Wend.    260;        5  McReynolds  r.  Miinns,  2  Keycs,  214. 
Montgomery  r.  Tutt,  U   Cal.  307;  Lump-        ^  Union    Water   Co.    v.    Murphy's   Flat 

kin  V.    Williams    (Tex.),   21   S.    W.  Rep.  Pluming  Co.  22  Cal.  620. 
967.     And  seeTutten  v.  Stuyvesant,3  Edw.        '  Livingston  v.  Mildrum,  19  N.  Y.  440. 
500.  *  Brevoort  v.  Jackson,  1  Edw.  447. 

468 


TIIK    FORM    AND    REQUISITES    OF   TH^  DECREE.       [§§  1581-1583. 

bill  in  equity,  in  case  the  prior  mortgage  is  not  yet  due,  he  may 
liave  a  decree  for  a  sale  of  the  equity  of  redemption  subject  to  the 
l)rior  mortgage,  leaving  the  purchaser  to  pay  that  when  it  becomes 
due.  If  the  prior  mortgage  be  due,  the  junior  mortgagee  may  re- 
deem and  sell  the  whole  estate  to  obtain  the  redemption  money  as 
well  as  his  own  claim. ^  It  has  been  held  in  a  few  cases  that  with- 
out redeeming  he  may  make  the  prior  mortgagee  a  party  to  the 
bill,  and  ask  for  a  sale  of  the  whole  estate,  and  the  payment  of 
all  incumbrances  out  of  the  proceeds  ;2  but  this  is  not  the  law  now. 
Though  the  prior  mortgagee  be  made  a  party  and  is  defaulted,  the 
decree  only  bars  the  equity  of  redemption  of  the  complainant's 
mortgage,  without  affecting  in  any  way  that  which  is  superior  to  it.^ 
A  junior  mortgagee  is  entitled  to  proceed  with  his  bill  to  foreclose, 
although  the  senior  mortgagee  has  obtained  a  judgment  of  foreclos- 
ure, and  the  junior  mortgagee  may  seek  his  remedy  against  the 
surplus  moneys  on  the  first  mortgage.*  He  is  entitled  to  have  the 
issues  raised  in  his  action  tried  when  his  action  is  reached. 

1581.  After-acquired  title.  —  Ordinarily  the  title  ordered  to  be 
sold  is  only  that  which  the  mortgagor  held  at  the  date  of  the  mort- 
gage. If  in  any  case  there  are  facts  of  an  equitable  character,  such 
that  a  title  acquired  afterwards  by  the  mortgagor  or  his  vendee 
should  be  subjected  to  the  lien  of  the  mortgage,  these  should  be  set 
out  in  the  complaint,  and  such  after-acquired  title  should  be  in- 
cluded in  the  decree  of  sale  ;  otherwise  this  will  not  include  or  affect 
the  after-acquired  title.^  It  must  be  first  subjected  to  the  lien  of 
the  mortgage  by  the  foreclosure  decree,  which  then  operates  upon 
this  title  to  the  same  extent  as  if  it  had  been  included  in  the  mort- 
gage.*^ 

1582.  When  several  persons  have  acquired,  undivided  inter- 
ests in  the  land  subsequent  to  the  mortgage  as  co-tenants,  the  de- 
cree will  not  apportion  the  debt  among  them.''' 

1583.  One  decree  for  entire  debt.  —  If  a  mortgage  securing 
several  notes  covers  two  separate  lots,  and  provides  that  one  lot  is 
pledged  only  as  security  for  the  note  first  falling  due,  upon  default 
in  payment  of  all  the  notes,  a  judgment  for  the  sale  of  both  lots 
for  the  payment  of  the  entire  debt  is  not  proper  as  against  a  pur- 

1  Western  Ins.  Co.  v.  Eagle  Fire  Ins.  Co.  ^  Kreiclibaum  v.  Melton,  49  Cal.  50.    See 

1  Paige,  284.     And  see  Trayser  v.  Indiana  §§  679-683. 

Asbury  University,  39  Ind.  .5.56.                 .  o  Sa,n  Francisco  v.  Lawton,  18  Cal.  465, 

'^  Vandcrkemp  v.  Shclton,  11  Paige,  28.  79  Am.  Dec.  187. 

3  McCornnicki;.  Wilcox,  25  111.  274  ;  Har-  •  Perre  v.  Castro,  14  Cal.  519,76  Am. 

shaw  V.  McKesson,  66  N.  C.  266.  Dec.  444. 

*  Daily  v.  Kingon,  41  How.  Pr.  22. 

469 


§§  1584,  1585.]  DECREE   OF   SALE. 

chaser  of  the  lot  pledged  for  the  payment  of  such  first  maturing 
note.  The  liability  of  that  lot  should  be  limited  according  to  the 
terms  of  the  mortgage. ^  If  the  complainant  holds  two  mortgages 
covering  in  part  the  same  premises,  but  securing  different  debts, 
one  decree  will  be  made  for  both  debts  instead  of  a  separate  decree 
for  each  ;2  but  if  a  subsequent  purchaser  or  mortgagee  has  become 
interested  in  the  property  covered  by  one  and  not  by  the  other, 
separate  decrees  should  properly  be  raade.^ 

1584.  Death  of  mortgagor.  —  A  judgment  iov  foreclosure  and 
sale  without  any  provision  as  to  a  deficiency  may  be  executed  not- 
withstanding the  death  of  the  mortgagor.  It  is  to  be  enforced 
against  the  property  and  not  against  the  person.  There  is  no  occa- 
sion to  revive  it  or  to  bring  in  new  parties.*  The  sale  can  be  made, 
and  the  purchaser  let  into  possession  on  producing  the  deed  of  the 
referee  or  other  officer  making  the  sale.^  So  far  as  this  part  of  the 
decree  is  concerned,  it  is  in  the  nature  of  a  proceeding  in  rem,  and 
the  death  of  the  mortgagor  after  the  entry  of  the  decree  is  no  ground 
for  staying  its  execution.^ 

The  statutes  which  provide  that  no  suits  shall  be  brought 
against  the  estate  of  a  deceased  person  for  a  year,  or  other  specified 
time,  after  administration  is  taken  upon  his  estate,  do  not  suspend 
the  right  to  prosecute  a  suit  for  foreclosure,  when  no  judgment  for 
a  deficiency  is  sought.'  The  mortgagee  may  prove  his  claim  and 
have  it  allowed  against  the  estate  of  the  mortgagor,  and  still  pro- 
ceed directly  to  foreclose.^ 

Upon  the  mortgagor's  death  after  entry  of  a  decree  of  foreclos- 
ure, but  before  sale,  his  interest  in  the  land  descends  as  real  estate 
to  his  widow  and  heirs.  The  court  may  thereupon,  on  the  petition  of 
the  widow,  modify -the  decree  after  the  mortgagor's  death  so  as  to 
give  the  widow  dower  in  the  surplus  over  the  mortgage  debt.^ 

1585.  Death  of  plaintiff.  —  Neither  does  the  death  of  the  plain- 

1  Mickley  v.  Tonilinson,  79  Towa,  383,  avoided  in  a  collateral  proceeding  where 
41  N.  W.  Rep.  311,  44  N.  W.  Rep.  684.  there  has  been   no  admini.stration    on    the 

2  Phelps?'.  Ellsworth,  3  Day,  397.  estate.    Thompson   y.  Jones,   77    Tex.  626, 

3  Enright  v.  Hubbard,  34  Conn.  197.  12  S.  W.  Rep.  77. 

4  Hays  V.  Thomae,  5G  N.  Y.  .521  ;  Harri-         &  Lynde  v.  O'Donnell,  12  Abb.  Pr.  286. 
son  V.  Simons,  3  Edw.  394;  Cowell  v.  Buck-        ^  Nagle  v.  Macy,  9  Cal.  426.     See  Hunt 
elew,  14  Cal.  640  ;  Treiiholm  v.  Wilson,  13  i'.  Acre,  28  Ala.  580  ;  Trenholm  v.  Wilson, 
S.  C.  174.     In   Texas  if  a  defendant  in  a  13  S.  C.  174. 

foreclosure  suit  dies  before  the  satisfnction  "  Willis  i'.  Farley,  24  Cal.  490. 

of  the  decree,  the  statute  requires  that  its  ^'  Moores   v.   Ellsworth,   22    Iowa,    299. 

payment  must  be  enforced  through  the  pro-  Contra,  Falkner  v.  Folsom,  6  Cal.  412. 

bate  court  in  the  manner  prescribed  for  the  ^  Holden  r.  Dunn  (111.),  33  N.  E.  Rep. 

settlenunt  of  the  estates,    .  .  .  and  not  by  413. 

execution.     But   the  judgment  cannot  be 

470 


THE    FORM    AND    REQUISITES    OF   THE   DECREE.  [§  1586. 

tiff  after  judgment  and  before  the  sale  give  occasion  to  stay  the 
sale  or  to  revive  tlie  action.^  Where,  however,  the  plaintiff  dies 
before  judgment,  this  cannot  be  perfected  in  his  name,  but  his  rep- 
resentatives must  be  substituted  in  his  place.^ 

1586.  A  day  for  payment,  before  the  sale,  is  allowed  by  some 
courts  by  virtue  of  their  equity  jurisdiction.^  The  mortgagor  can- 
not object  to  a  decree  giving  him  this  right,  although  it  be  unau- 
thorized by  lavv.^  A  tijne  for  redemj)tion  after  the  sale  is  in  some 
States  provided  for,  and  in  such  case  the  decree  must  not  direct  the 
delivery  of  the  deed  until  this  time  has  passed. ^  As  regards  re- 
demption, the  decree  should  make  the  same  provisions  for  it  whether 
the  mortgage  be  in  the  usual  form,  or  be  merely  an  absolute  deed 
without  a  formal  defeasance  or  any  defeasance  at  all.*^  Where  re- 
demption is  allowed  after  sale,  the  officer  is  directed  in  the  first 
place  to  execute  a  certificate  to  the  purchaser,  and,  in  case  there  is 
no  redemption  within  the  time  allowed  by  law,  to  execute  a  deed.^ 
In  the  mean  time  the  mortgagor  remains  in  possession,  with  no  lia- 
bility for  rents  and  profits,  or  for  use  and  occupation.^ 

In  the  absence  of  special  provisions  of  statute,  courts  of  equity 
may  allow  a  period  for  redemption  before  a  sale  of  the  property, 
according  to  the  circumstances  of  the  case.  This  is  always  done 
in  cases  of  strict  foreclosure  where  the  decree  vests  the  complete 
title  in  the  mortgagee.'-*  The  practice  does  not  generally  apply  to 
cases  of  decrees  for  the  sale  of  the  property,  because  the  debtor 
is  then  protected  by  his  right  to  receive  the  surplus  arising  from 
the  sale;  but  it  has  been  extended  by  some  courts  to  such  cases. ^'^ 
As  will  be  seen  by  reference  to  the  statutes  regulating  foreclosure, 
it  is  in  several  States  provided  that  there  shall  be  a  period  of  re- 
demption after  the  sale,  during  which  time  the  purchaser  holds  oidy 

1  Lynde  v.  O'Donnell,  21  How.  Pr.  34,  49  Mich.  462,  12  N.  W.  "Rep.  911,  13  N.  W. 
12  Abb.  Pr.  286.  Kep.  818. 

2  Oerry  v.  Post,  13  How.  Pr.  118.  *  Smith  v.  Hoyt,  14  Wis.  252. 

3  Chiik  V.  Reybiirn,  8  Wall.  318;  Cape-  ^  Jones  v.  Oilman,  14  Wis.  450;  Rhine- 
hart  V.  BiK£?.s,  77  N.  C.  261;  Mebane  v.  hart  i'.  Stevenson,  23  111.  524;  Warner  v. 
Mebane,  80  N.  C.  34  ;  Vail  v.  Arkell  (111.),  De  Witt  Co.  Nat.  Bank,  4  Bradw.  305. 

34  N.  E.  Rep.  937.     This  was  the  practice  ^  Briggs  v.  Seymour,  17  Wis.  255. 

in   Kentucky.      Dnrrett    v.  Whiting,  7    T.  ''  Boester  v.  Byrne,  72  111.  466 ;  Rosseel 

B.  Mon.  547;     Woodard  v.    Fitzpatrick,    2  r.  Jarvis,  15  Wis.  571  ;  Walker  y.  Jarvis,  16 

B.  Mon.  Gl  ;  'Richardson   v.    Parrott,  7  B.  Wis,  28.     A  direction  to  execute  "  a  certifi- 

Mon.  379.  cate  as  required  by  law  "  is  sufficient. 

This  is  the  practice  in  Michigan.    Detroit  ^  Whitney  v.  Allen,  21  Cal.  2.33. 

Sav.  Bank  v.  Truesdail,  38  Mich.  430.   The  ^  Periue  v.  Dunn,  4  Johns.  Cli.  140. 

sale  cannot  take  place    within  less  than  a  i"   Ilarkins    v.  Forsyth,  11     Leigh,    294; 

vearfrom  the  time  all  the  defendants  have  Stockton  v.  Dundee   Manuf.  Co.  22   N.  J. 

been  pro])erly  brought  iu.    Burt  v.  Thomas,  E(i.  56. 

471 


1587.] 


DECREE   OF   SALE. 


a  certificate  of  the  sale  entitling  him  to  a  deed  at  the  close  of  the 
period  if  no  redemption  is  made.  In  such  case  a  decree  that  the 
sheriff  shall  execute  a  deed  to  the  purchaser  without  waiting  for 
the  expiration  of  the  time  limited  for  redemption  is  erroneous,  but 
may  be  amended.^  The  decree  should  embody  the  statutory  provi- 
sion for  redemption ;  but  an  objection  that  the  decree  does  not  do 
this  cannot  be  urged  by  creditors  of  the  mortgagor  or  by  his  assignee 
in  bankruptcy,  except  in  connection  with  an  offer  to  redeem.^ 

III.    The  Conclusiveness  of  the  Decree. 

1587.  The  validity  of  the  decree  cannot  be  attacked  collater- 
ally for  mere  irregularities,  or  for  matters  of  defence  which  do  not 
go  to  the  jurisdiction  ;  ^  and  jurisdiction  is  presumed  from  the  de- 
cree.* It  must  be  attacked,  if  at  all,  by  direct  application  to  the 
court  that  made  it,  or  in  due  course  of  appellate  procedure.^ 
Though  the  decree  be  erroneous,  the  title  of  one  who  has  in  good 
faith  purchased  under  it  is  not  affected  by  the  error;  and  this  is  so 
even  though  the  decree  should  afterwards  be  reversed  or  set  aside 
for  error  or  irregularity.^  So  long  as  the  decree  remains  in  force 
the  mortgagor,  or  any  other  person  who  was  a  party  to  the  pro- 
ceedings, is  estopped  from  asserting  any  anterior  right  or  title  to 
the  mortgaged  lands.'     The  judgment  is  conclusive  as  to  the  title 


1  Harlan  v.  Smith,  6  Cal.  173;  Board  of 
Education  v.  Franklin,  61  Ga.  303. 

2  Hards  v.  Conn.  Mut.  L.  Ins.  Co.  8  Biss. 
234 ;  Biirley  v.  Flint,  9  Biss.  204. 

3  Gray  v.  Brignardello,  1  Wall.  627,  634; 


^  Horner  v.  Zimmerman,  45  111.  14; 
Lambert  v.  Livingston  (111.),  23  N.  E.  Rep. 
352;  Graham  v.  Bleakie,  2  Daly,  55;  Bur- 
ford  V.  Rosen  field,  37  Tex.  42. 

If  upon  appeal  the  decree  is  reversed  in 


Ruggles  V.  First  Nat.  Bank  of  Centreville,  so  far  as  it  directs  a  sale  of  a  portion  of  the 

43  Mich.  192,  5  N.  W.  Rep.  257;  Brown  v.  land   included  in  the  decree,  the   effect  of 

Piiillips,  40  Mich.  264  ;  Adams  v.  Cameron,  such   reversal   upon   a   sale   already  made 

40  Mich.  506 ;  Torrans  v.  Hicks,  32  Mich,  under  process  directing  a  sale  of  the  land 

307;  Ogden  y.  Walters,  12  Kans.  282  ;  Rey-  covered  by  the  mortgage  is  to  destroy  the 

nolds  V.  Harris,  14  Cal.  667,  76  Am.  Dec.  title  to  the  land  in  question,  where  the  mort- 

459  ;  Miller  v.  Sharp,  49  Cal.  233 ;  Trope  gagee  has  acquired  such  title.     Adams  v. 

V.  Kerns  (Cal.),  20  Pac.  Rep.  82;    Berry  Odom,  74  Tex.  206,  12  S.  W.  Rep.  3+,  cit- 

V.  King,  15  Oreg.  165,  13  Pac.  Rep.  772;  ing  Marks  v.  Cowles,  61  Ala.  299;  Delano 

Woolery  v.  Grayson,  110  Ind.  149,  10  N.  E.  v.  Wilde,  11   Gray,  17;  Gott  v.  Powell,  41 

Rep.  935  ;  Goltra  v.  Green,  98  III.  317  ;  Len-  Mo.  416;  Reynolds  v.  Harris,  14  Cal.  667  ; 

festy  V.  Coe  26  Fla.  49,  7  So.  Rep.  2 ;  Mann  Hubbell  v.  Broadwell,  8  Ohio.  120 ;  Bryant 

o.  Jennings,  25  Fla.   730,  6  So.  Rep.  771  ;  v.  Fairfield.  51  Me.  149;  Galpiii  v.  Page,  18 


Thompson  v.  Jones,  77  Tex.  626,  12  S.  W. 
Rep.  77  ;  Watson  i'.  Camper,  119  Ind.  60,  21 
N.E.Rep.323;  Windetty.  Connecticut  Mut. 
L.  Ins.  Co.  130  III.  621,  22  N.  E.  Rep.  474. 


Wall.  350,  373  ;  Stroud  v.  Casey,  25  Tex. 
740;  Reynolds  v.  Hosmer,  45  Cal.  616. 

■7  Hefner  v.  Ins.  Co.  123  U.  S.  747,  8  Sup. 
Ct.  Rep.  337;  Adair  v.  Mergentheim,  114 


4  Markel  v.  Evan.-^,  47  Ind.  326;  Keller  Ind.  303,  16  N.  E.  Rep.  603;  Huff  v.  Doty, 
V.  Miller,  17  Ind.  206.  26  S.  C.  173,  1   S.  E.  Rep.  707  ;  Barton  v. 

5  Cannon  v.  Wright  (N.  J.  Eq.),  23  All.  Anderson,  104  Ind.  578. 
Rep.  285. 

472 


THE   CONCLUSIVENESS   OF   THE   DECREE.  [§*1588. 

held  by  the  defendants  after  it  was  rendered. ^  Parties  who  have 
been  personally  served  with  summons,  and  have  made  an  appear- 
ance in  the  suit,  cannot  afterwards,  to  defeat  confirmation,  assail 
the  decree  for  a  mere  irregularity. ^ 

If  the  mortgage  was  invalid  in  its  origin,  a  decree  of  foreclos- 
ure has  no  effect  whatever  upon  the  property  or  its  owners.  Such 
was  the  case  of  a  mortgage  given  by  persons  who  claimed  to  be 
the  trustees  of  a  corporation  and  foreclosed  ;  and  afterwards  it 
was  established  by  decree  of  the  court  that  the  mortgagors  had 
usurped  the  powers  of  the  corporation,  and  had  no  authority  to 
bind  it.3 

A  decree  of  foreclosure  entered  before  the  debt  has  become  due, 
or  after  the  mortgage  has  been  satisfied  of  record,  is  erroneous  ;  and 
the  decree  should  be  set  aside,  unless  in  the  latter  case  the  entry  of 
satisfaction  be  cancelled.* 

1588.  A  judgment  directing  a  sale  of  the  mortgaged  prem- 
ises is  conclusive  as  to  all  parties  to  the  suit  so  long  as  it 
remains  unreversed.^  It  does  not  matter  that  the  plaintiff  held 
the  mortgage  by  assignment  from  the  mortgagor  as  collateral  secu- 
rity for  a  debt  of  his,  and  that  he  in  this  way  had  an  interest  in 
the  mortgage ;  if  the  plaintiff,  knowing  this,  makes  him  a  party  to 
the  suit,  and  he  does  not  answer,  he  cannot,  after  a  judgment  and 
sale  of  the  property  under  it  for  a  sum  less  than  the  debt  for  which 
the  mortgage  was  held  as  collateral,  maintain  a  bill  to  redeem. 
The  interest  of  the  mortgagor  is  not  one  prior  to  the  mortgage,  but 
one  under  the  mortgage,  and  this  is  the  ground  upon  which  he  is 
made  a  party  to  the  foreclosure  suit.^ 

Where  a  defendant  has  set  up  a  claim  under  a  title  paramount 
to  the  mortgage,  and  the  same  has  been  litigated  with  the  consent 
or  acquiescence  of  both  parties,  both  parties  are  bound  by  the  judg- 
ment.' Where  one  defendant  had  set  up  a  paramount  title  to  a 
portion  of  the  mortgaged  premises,  and  by  agreement  of  all  the 
other  parties  a  decree  was  entered  that  this  defendant's  land  was 
not  subject  to  the  mortgage,  and  more  than  a  year  afterwards  the 
parties,  excepting  this  defendant,  agreed  that  the  decree  might  be 

1  Newcome  v.  "Wiggins,  78  lud.  306 ;  the  decree  includes  part  of  debt  not  due 
Ulrich  V.  Drischell,  88  Ind.  354;  Gaylord  when  suit  was  commenced.  Likes  u.  Wil- 
V.  La  Fayette,  115  Ind.  423,  17  N.  E.  Eep.    dish,  27  Neb.  151,  42  N.  W.  Rep.  900. 

899.  5  McCrackan  v.  Valentine,  9  N.  Y.  42; 

2  Stratton  v.  Reisdorph  (Neb.),  53  N.  W.  Manigaiilt  v.  Deas,  Bailey  (S.  C.)  Eq.  283  ; 
Rep.  136.  Murrell  v.  Smith,  51  Ala.  301. 

^   Brindernagle     v.    German     Reformed        ^  Bloomer  v.  Sturges,  58  N.  Y.  168. 
Ciiurch,  1  Barb.  Ch.  15.  '  Helck  v.  Reinheimer,  105  N.   Y.  470; 

*  Russell  V.  Mixer,  39  Cal.  504.     When     Bundy  v.  Cunningham,  107  Lad.  360. 

478 


§   ISSS".]  DECREE    OF   SALE. 

vacated,  and  sabsequentl3%  without  notice  to  this  defendant,  a  new 
decree  was  rendered  by  wiiich  the  land  of  this  defendant  was  declared 
to  be  subject  to  the  mortgage  and  was  ordered  to  be  sold,  it  was 
held  that  the  last  decree  was  void  as  to  this  defendant.^  A  judg- 
ment which  the  defendant  has  allowed  to  be  entered  upon  default, 
under  the  belief  that  the  judgment  could  not  affect  a  riglit  of  home- 
stead in  a  portion  of  the  mortgaged  land  which  had  been  released 
from  the  mortgage  by  a  release  recorded  before  the  assignment  to 
the  complainant  in  the  foreclosure  suit,  may  be  set  aside  in  a  pro- 
ceeding instituted  for  that  purpose.^ 

Where  a  decree  of  sale  provides  that  the  sale  shall  be  made  sub- 
ject to  certain  liens  established  or  to  be  established  by  a  reference 
to  a  master,  as  prior  and  superior  liens,  the  purchaser  cannot  dis- 
pute the  validity  of  the  liens  thus  established,  even  on  the  ground 
of  fraud  alleged  to  have  been  discovered  after  confirmation  of  the 
master's  report  fixing  the  amount  of  such  liens.^ 

The  decree  is  of  course  conclusive  upon  the  defendant  in  the 
bill,  and  upon  any  purchaser  from  him  who  has  purchased  after 
the  decree  was  rendered.  In  a  contest  with  either  by  a  purchaser 
at  a  judicial  sale  under  the  decree,  the  complainant's  title  to  the 
mortgage  is  not  an  open  question.  His  title  to  the  mortgage  was 
essential  to  the  decree  rendered,  and  was  necessarily  adjudicated  as 
a  part  of  tlie  case  then  before  the  court.* 

After  a  long  lapse  of  time  since  the  decree  was  made,  the  court 
will  presume,  as  against  parties  calling  the  decree  in  question,  that 
every  act  and  thing  was  done,  necessary  to  give  jurisdiction  and 
authority  to  the  court  pronouncing  the  decree,  which  the  record 
does  not  show  was  not  done,  particularly  when  the  record  pro- 
duced shows  that  all  of  the  record  and  proceedings  have  not  been 
produced.*^ 

1589.  Prior  and  adverse  rights.  —  Where  a  party  has  a  right 
under  the  mortgage,  and  also  a  right  prior  to  it,  he  is  not  pre- 
cluded in  respect  to  the  prior  right  by  a  judgment  of  foreclosure, 
though  the  terms  of  it  are  broad  enough  to  cover  both  rights. 
Only  the  riglits  and  interests  under  the  mortgage  and  subsequent 
to  it  can  properly  be  litigated    upon  a   bill  of    foreclosure.^     One 

1  Blake  v.  McMurtry,  25  Neb.  290,  41  N.  *  §§  1440,  1445,  1474;  Gunn  v.  Wades, 
W.  Rep.  172.                 '  62  Ga.  20. 

2  Lumpkin    v.  Williams  (Tex.),  21  S.  W.  ^  Kibbe  v.  Dunn,  5  Biss.  233;  Chesebro 
Rep.  967  ;  Wicke  v.  Lake,  21  Wis.  410.  v.  Powers.  70  Mich.  370,  38  N.  W.  Rep.  283. 

3  Swann  v.  Wright,  110  U.  S.  590,  4  Sup.  «  Wade  v.  Miller,  32  N.  J.  L.  296  ;  Elli- 
Ct.  Rep.  235.  ott  v.  Pell,  1  Paige,  263;  Eagle  Fire  Co.  v. 

Lent,  6  Paige,  635  ;  Holcomb  v.  Holcomb, 

474 


THE   CONCLUSIVENESS   OF   THE   DECREE.  [§  1589. 

claimiiif"-  adversely  to  the  title  of  the  mortgagor  cannot  be  made  a 
party  to  the  suit  for  the  purpose  of  trying  his  adverse  claim.  If 
he  has  a  claim  under  the  mortgage  also,  his  claim  prior  to  it  can- 
not be  divested  by  the  decree.  This  prior  claim  is  not  a  subject 
matter  of  litigation  in  the  foreclosure  suit,  and  remains  unaffected 
by  it.  The  decree  is  final  only  within  the  proper  scope  of  the  suit, 
which  is  to  bar  interests  in  the  equity  of  redemption. ^  Therefore, 
where  land  was  devised  to  one  in  trust  to  receive  the  rents  and 
profits,  and  ajiply  to  the  benefit  of  another  for  life,  remainder  to 
the  trustee  in  fee  for  his  own  benefit,  and  the  remainder-man  and 
the  tenant  for  life  made  a  mortgage  in  which  no  allusion  was  made 
to  the  trust,  it  was  held,  upon  a  foreclosure  of  the  mortgage,  that 
the  trust  estate  was  not  affected  by  the  mortgage,  or  by  the  judg- 
ment of  foreclosure,  although  the  person  named  as  trustee  was  in 
his  individual  capacity  a  party  to  the  suit.  The  prior  estate  for  life 
in  trust  not  being  subject  to  the  mortgage,  or  within  the  powder  of 
the  trustee  to  dispose  of,  remains  unaffected.^  In  like  manner,  if 
there  be  an  outstanding  right  of  dower  in  the  wife  of  the  mortga- 
gor, the  making  of  her  a  party  to  an  action  of  foreclosure,  and  tiie 
rendering  of  a  judgment  foreclosing  the  rights  of  the  defendants  in 
the  premises,  do  not  affect  this  right.  This  remains  the  same  as  if 
she  had  not  been  made  a  party  to  the  action.^  If,  however,  the 
mortgage  be  given  to  secure  the  purchase-money,  the  wife's  dower 
is  then  subordinate  to  the  mortgage,  and  is  barred  if  she  be  made  a 
party."*  Moreover,  the  decree  is  final  and  conclusive  only  against 
the  owner  and  subsequent  parties  in  interest  when  they  have  been 
made  parties  to  the  suit  ;  and  is  unavailing  against  any  one  inter- 
ested in  the  premises  who  was  not  made  a  party ,'^  and  in  such  case 
the  decree  is  no  bar  to  another  foreclosure  suit.^ 

It  is  held,  however,  that  if  a  party  like  a  contingent  remainder- 

2  Barb.  20;  Frost  v.  Koon,  30  N.  Y.  428;  N.   Y.   470,  477;    California  Safe-Deposit 

Lewis  V.  Smith,  11  Barb.  152,  9  N.  Y.  502,  Co.  v.  Cheney    Electric  Lij;ht   Co.   56  Fed. 

61  Am.  Dec.  706;  Corning  v.  Smith,  6  N.  Rep.  257,  quoting  text;  Bozarth  y. Landers, 

Y.  82;  Lee  v.  Parker,  43  Barb.  611  ;  Lan-  113  Til.  181. 

sing  V.  Hadsall,  26  Hun,  619.  -  Rathbone  r.  Hooney,  58  N.  Y.  463. 

1  Lewis  V.  Smith,  9  N.  Y.  502,  61  Am.  3  Wade  v.  Miller,  32  N.  J.  L.  296  ;  Mer- 
Dec.  706  ;  McComb  i:  Spangler,  71  Cal.  418,  chants'  Bank  v.  Thomson,  55  N.  Y.  7. 
12  Pac.  Rep.  347,  quoting  text  ;  Sichler  v.  *  Bracket!  v.  Baum,  50  N.  Y.  8.  This 
Look,  93  Cal.  600,  29  Pac.  Rep.  220;  Ord  decision  relates  to  a  power  of  sale  mortgage 
V.  Bartlett,  83  Cal.  428,  23  Pac.  Rep.  705  ;  foreclosed  under  the  statute,  but  the  reason- 
San  Francisco  v.  Lawton,  18  Cal.  465  ;  Cody  ing  applies  here. 

V.  Bean,  93  Cal.  578,  29  Pac.  Rep.  223  ;  Payn  5  Shores  v.  Scott  River  Co.  21  Cal.  135  ; 

V.  Grant,  23  Hun,  134;  Frost  v.  Koon,  30  Goodcnow   v.  Ewer,  16  Cal.  461,  76  Am. 

N.  Y.  428;    Emigrant  Sav.  Bank  i;.  Gold-  Dec.  540. 

man,  75  N.  Y.  127;  Smith  v.  Roberts,  91  6  Curtis  y.  Gooding,  99  lud.  45. 

475 


§§  1589  a,  1590.]  decree  of  sale. 

man  having  a  prior  interest  is  made  a  party  to  the  foreclosure 
suit,  and,  without  demurring,  answering,  or  asserting  his  prior  title, 
allows  judgment  to  be  taken,  and  the  facts  stated  in  the  bill  are 
such  that,  if  admitted,  his  title  is  subject  to  the  mortgage  and  to 
the  foreclosure,  he  is  estopped  from  afterwards  setting  up  his  inter- 
est as  against  the  judgment.^ 

A  controversy  between  defendants  to  a  foreclosure  suit,  as  to 
which  of  them  is  the  principal  debtor  and  which  is  surety,  cannot 
be  determined  in  such  suit,  and  a  decree  which  attempts  to  do 
so  is  of  no  effect.2 

1589  a.  A  decree  foreclosing  a  junior  mortgage  cannot  affect 
the  lien  of  a  senior  mortgage,  where  its  priority  is  not  attacked 
by  the  petition  for  foreclosure.  If  the  holder  of  the  senior  mort- 
gage has  also  acquired  a  third  mortgage,  or  the  equity  of  redemp- 
tion, a  foreclosure  decree  upon  the  second  mortgage  relates  only 
to  the  third  mortgage  or  the  equity  of  redemption.  "  The  clause 
in  such  decree,  that  the  defendant  and  all  persons  claiming  under 
him  '  shall  be  foreclosed  and  forever  barred  from  all  equity  of  re- 
demption in  the  premises,'  relates  only  to  such  rights  and  interests 
as  are  inferior  to  the  mortgage  that  is  foreclosed,  and  not  to  such 
as  are  superior."  ^ 

IV.   The  Amount  of  the  Decree. 

1590.  The  decree  directing  a  sale  of  the  premises  should 
find  the  exact  amount  due  on  the  mortgage,  and  not  leave  this 
to  be  calculated  by  the  officer.*  A  decree  which  simply  orders  the 
payment  of  the  sum  due  on  the  mortgage  debt,  without  finding  the 
amount,  is  erroneous.^  Where  several  mortgages  upon  separate 
parcels  of  land  are  foreclosed  together,  the  decree  must  find  the 
amount  due  upon  each,  and  not  the  aggregate  amount  secured  by 
all.*^     The  parties  themselves  may  fix  the  amount  by   agreement, 

1  Goebel  i'.  Iffla,  111  N.  Y.  170,  19  St.  *  Wernwag  v.  Brown,  3  Blackf.  457,26 
Rep.  105,  18  N.  E.  Rep.  649;  Jordan  v.  Am.  Dec.  43.3;  Champlin  v.  Foster,  7  B. 
VanEpps,85  N.  Y.  427  ;  Barnard  u.  Onder-  Mon.  104;  Warner  v.  De  Witt  Co.  Nat. 
donk,  98  N.  Y.  158.  Bank,  4  Bradw.  305.     As  to  certainty  in 

2  Hovenden  r.  Knott,  12  Oreg.  267,  7  Pac.  the  amount  of  the  decree,  see  Mulvey  v. 
Rep.  30.  Gibbons,  87  111.  367  ;  Keck  ;'.  Allender,  37 

3  Buzzell  V.  Still,  63  Vt.  490,  22  Atl.  Rep.  W.  Va.  201,  16  S.  E.  Rep.  520. 

619,  per  Rowell,  J.,  citing  Emigrant  Sav.  5  Tompkins  v.  Wiltberger,  56  III.  385  ; 

Bank  v,  Goldman,  75  N.  Y.  127;  Lewis  v.  Wilson  Sewing  Machine  Co.  v.  Rutledge, 

Smith,  9  N.  Y.  502;  Strobe  v.  Downer,  13  60  Iowa,  39,  14  N.  W.  Rep.  92. 

AVis.  10,  80  Am.  Dec.  709  and  note  ;  Shaw  «  Rader  v.   Ervin,  1   Mont.  632;  Collier 

V.  Chamberlin,  45  Vt.  512  ;  Bowne  v.  Page,  v.  Ervin,  2  Mont.  335. 

2  Tvler,  392. 

476 


THE   AMOUNT   OF   THE   DECREE.  [§  1590. 

and  this  will  be  adopted  by  the  court  in  entering  the  decree.^  If 
the  mortgagee  has  received  payments  upon  collateral  securities  or 
rents  and  pi-ofits  from  the  mortgaged  premises,  an  accounting  to 
ascertain  the  sum  due  should  precede  the  decree.^  If  the  mortgage 
was  drawn  for  a  larger  sum  than  the  actual  debt  secured,  the  de- 
cree should  be  for  the  correct  amount  of  the  debt.^  The  amount 
due  may  be  determined  by  the  court,^  or  for  its  convenience  refer- 
ence may  be  made  to  a  master  or  clerk  of  court,  or  other  officer,  to 
ascertain  the  amount.^  If  a  master  or  referee  is  appointed  to  com- 
pute the  amount  due,  the  court  cannot  in  advance  of  the  report 
direct  that,  upon  its  coming  in,  the  same  be  affirmed  and  judg- 
ment entered  thereupon.^  A  part  of  the  debt  not  due  cannot  be 
included.^  But  an  instalment  falling  due  before  the  hearing,  al- 
though not  due  when  the  suit  was  brought,  may  be  included.^ 

A  judgment  by  default  cannot  be  entered  for  a  larger  amount 
than  tlie  complaint  shows  to  be  due.^ 

Though  the  debt  secured  by  the  mortgage  be  made  up  of  several 
amounts,  as  where  the  mortgagee  has  paid  taxes  or  other  liens  upon 
the  property  for  his  own  protection,  the  whole  amount  due  and  pay- 
able at  the  time  of  the  foreclosure  should  be  included  in  the  decree. 
The  different  items  of  the  debt  cannot  be  separated  and  collected 
by  several  actions.^^ 

Though  the  mortgagee  did  not  actually  pay  the  money  secured 
by  the  mortgage  at  the  time  of  its  execution,  but  as  a  matter  of 
convenience  indorsed  certain  promissory  notes,  and  delivered  them 
to  the  mortgagor  for  negotiation,  and  paid  the  notes  at  maturity, 
the  transaction  being  treated  as  if  the  money  had  been  paid  at  the 
date  of  execution,  interest  is  properly  computed  from  that  time.^^ 
Where  a  mortgage  secures  all  sums  due  or  thereafter  to  become  due 
from  the  mortgagor  to  the  mortgagee,  the  latter  is  entitled  to  be 
allowed,  as  part  of  the  sum  due,  a  note  of  the  mortgagor  made  pay- 
able to  a  firm  of  which  the  mortgagee  is  the  surviving  member,  or 

1  Kelly    V.    Searing,    4    Abb.    Pr.    354  ;         "  King  v.  Longwoitb,  7  Ohio,  585. 
Nosier  v.  Ilaynes,  2    Nev.    53;    Clarke   v.        »  Manning   v.    MeClurg,    14    Wis.   350; 
Bancroft,  13  Iowa,  320.  Carr  v.  Watkins  (Ky.),  9  S.  W.  Rep.  218. 

2  Parlin  v.  Stone,  1  McCrary,  443.  9  Savings  &  Loan  Soc.  v.  Hortou,  63  Cal. 

3  Laylin  v.  Knox,  41  Mich.  40.  105. 

*  Vaughn  v.  Nims,  36  Mich.  297;  Kol-  w  Johnson   t?.  Payne,  11  Neb.  269,  9  N. 

lins  y.  Forbes,  10  Cal.  299.     And  see  Davis  W.  Rep.  81. 

V.  Alvonl,  94  U.  S.  545.  ii  Baxter  v.  Blodgett,  63  Vt.  629,  22  Atl. 

^  Ireland  v.  Woolman,  15  ]\Iich.  253.  Rep.  625. 

«  Citizens'  Sav.  Bank  v.  Bauer,  14  N.  Y. 
Civ.  Pro.  340,  1  N.  Y.  Supp.  450. 

477 


§§  1591,  1592.]  DECREE   OF   SALE. 

to  bearer,  even  though  recovery  on  the  note  itself  is  barred  by  the 
statute  of  limitations.^ 

If  the  mortgagor  desires  an  account  taken  of  the  amount  of 
profits  received  by  the  mortgagee  in  possession,  he  should  ask  the 
action  of  the  court  in  session,  and,  upon  a  hearing  by  the  court  or 
before  a  master,  should  offer  his  proof."^  The  question  of  the  mort- 
gagee's liability  to  account  for  rents  and  profits  should  be  raised  by 
the  pleadings  ;  otherwise  tlie  master,  under  an  order  of  reference, 
will  not  without  special  directions  entertain  it.^ 

The  full  amount  of  the  inortgage  debt  may  be  recovered  as 
against  a  junior  incumbrancer,  though  the  mortgagee  has  agreed  to 
sell  the  mortgage  to  the  wife  of  the  mortgagor  at  a  discount.* 

1591.  Ordinarily  the  decree  cannot  include  any  instalment  of 
the  mortgage  debt  not  due  at  the  time;^  though  if  an  instalment 
not  due  when  the  suit  was  commenced  falls  due  before  the  decree  is 
entered,  the  amount  of  it  is  properly  included.^  When  only  a  por- 
tion of  the  debt  is  due,  the  judgment,  besides  finding  the  amount 
actually  due  at  the  time  it  is  entered,  should  find,  also,  the  amount 
secured  by  the  mortgage  not  then  due,  and  should  provide  for  a 
stay  of  proceedings,  if,  before  the  day  of  sale,  the  mortgagor  pay 
the  amount  with  costs.'  But  whether  the  amount  not  due  should 
be  stated  or  not  depends  upon  the  statutes  and  practice  of  the  differ- 
ent States.^ 

When  by  the  teruis  of  the  mortgage  the  entire  mortgage  debt  be- 
comes due  on  any  default,  the  mortgagee  may  elect  to  consider  the 
entire  amount  of  the  mortgage  debt  as  due,  and  if  he  notifies  the 
mortgagor  of  his  election  so  to  consider  it,  a  decree  may  be  entered  for 
the  full  amount,  although  only  a  part  of  the  debt  is  due;^  but  there 
should  be  a  proper  rebatement  of  the  interest  on  the  notes  not  due.^*^ 

1592.  Collateral  mortgage.  —  If  a  mortgage  made  without  con- 
sideration paid  by  the  mortgagee  be  assigned  by  the  latter  as  in- 

1  Gleason  v.  Kinney  (Vt.),  27  Atl.  Eep.  Meyer,  8  Daly,  278  ;  Manning  v.  McClurg, 
208.  U  Wis.   350;    Hanford   v.    Robertson,  47 

2  Hards  v.  Barton,  79  111.  504.  And  see  Mich.  100,  10  N.  W.  Rep.  125;  Cooke  i'. 
Roberts  *'.  Pierce,  79  111.  378.  Pennington,  15  S.  C.  185. 

3  Wycoff  I'.  Combs,  28  N.  J.  Eq.  40.  7  Rjce  v.  Cribb,  12  Wis.  179.     See,  also, 
*  Knox  V.  Moser,  69  Iowa,  341,  28  N.  W.    as  to  tbe  practice  in   such  cases.   Walker 

Rep.  629.  V.    Hallett,    1    Ala.  379;    Taggart  v.   San 

»  King  V.  Longworth,  7  Ohio,  585.     See  Antonio  Ridge  Ditch  &  Mining  Co.  18  Cal. 

§  1478.  480. 

0  Howe  V.  Lemon,  37  Mich.  164  ;  Vangbn  8  Hoffman  on  Referees,  p.  229. 

V.  Nims,  36   Mich,  297 ;    Johnson  v.  Van  9  Noonan  v.  Lee,  2  Black,  499  ;  Noyes  v. 

Velsor,  43  Mich.  208,  5  N.  W.  Rep.  265  ;  Clark,  7  Paige,  180,  32  Am.  Dec.  620. 

Malcolm  v.  Allen,  49  N.  Y.  448  ;  Ferguson  lo  Giilmour  v.  Ford  (Tex.),  19  S.  W.  Rep. 

v  Ferguson,  2  N.  Y.  360,  364  ;  Aseudorf  v.  442. 

478 


THE   AMOUNT   OF   THE   DECREE.  [§  1593. 

demnity  against  the  assignee's  liability  as  indorser  for  the  mortgagor, 
it  is  of  course  security  only  for  the  amount  the  indorser  has  been 
obliged  to  pay,  and  on  foreclosure  tiie  decree  should  be  for  that 
amount  only.^  When  a  mortgage  given  to  indemnify  sureties  is 
foreclosed  while  suit  is  pending  on  the  claim  indemniBed  against, 
the  decree  may  properly  direct  payment  of  the  proceeds  of  sale  into 
court,  to  await  further  order  of  court.^ 

If  the  complainant  holds  the  mortgage  assigned  to  him  as  collat- 
eral security  for  a  specific  debt  of  less  amount  than  the  mortgage, 
he  can  only  have  a  decree  for  that  debt,  although  pending  tlie  suit 
the  mortgage  is  assigned  to  him  absolutely.  His  remedy  for  the 
residue  is  by  a  supplemental  bill  ;  or,  in  case  the  whole  premises  are 
sold  upon  the  decree  in  the  original  suit,  he  might  have  remedy  by 
petition  for  the  surplus.^ 

And  so  if  one  holding  a  mortgage  as  collateral  security  at  the 
request  of  the  mortgagor,  who  owes  the  principal  debt,  assigns  the 
mortgage  to  a  third  person  for  a  sum  less  than  the  face  of  the  mort- 
gage, which  sum  is  credited  on  the  principal  debt,  and  the  mortga- 
gor subsequently  pays  the  balance  of  this  debt,  the  mortgage  in  the 
hands  of  the  assignee  can  be  enforced  for  only  the  amount  he  paid 
for  it  either  as  against  the  mortgagor  or  against  subsequent  incum- 
brancers at  the  time  of  the  assignment,  for  in  such  case  that  amount 
is  the  only  part  of  the  mortgage  remaining  unpaid.^ 

1593.  If  the  mortgage  secures  a  bond  the  decree  may  be 
entered  for  the  full  amount  of  principal  and  interest  due  upon 
the  bond,  though  it  exceeds  the  amount  of  the  penalty.'^  Even 
when  the  suit  is  founded  on  the  bond  alone,  the  plaintiff  may  re- 
cover the  full  amount  of  the  penalty  as  a  debt,  and  interest  in  ad- 
dition as  damages  for  the  detention  of  the  debt.^  When  the  suit 
is  not  upon  the  bond,  byt  is  a  proceeding  in  equity  upon  the  mort- 
gage given  to  secure  the  bond,  it  has  been  considered  that  the  lien 
upon  the  land  is  for  the  whole  debt,  both  principal  and  interest,  ac- 
cording to  the  condition  of  the  mortgage.  "  The  mortgage,"  says  Sir 
William  Grant,'  ''  is  to  secure  payment,  not  of  a  bond,  but  of  the 

1  Van  Dcventer  v.  Stiger,  25  N.  J.  Eq.  Mower  v.    Kip,  6   Paige,   88,   reversing   2 

224;    Handy  v.    Sibley,  46  Ohio  St.  9,  17  Edw.  165,  29  Am.  Dec.  748. 

N.  E.  Kep.  .329.  6  Lo^g  „.  Long,  16   N.  J.  Eq.  59,  and 

-  Hunter  v.  Levan,  11  Cal.  11.  cases  cited  there. 

*  Underhill  v.  Atwater,  22  N.  J.  Eq.  16.  "^  Clarke  v.  Abingdon,  17  Ves.  106.     Mr. 

*  Hoy  V.  Bramhall,  19  N.  J.  Eq.  74,  97  Chancellor  Green,  in  Long  v.  Long,  16 
Am.  Dec.  687.  N.  J.  Eq.  59,  says,  in  reference  to  this  dis- 

^  Long  V.  Long.  16  N.  J.  Eq.  59.  But  tinction  :  "Looking  at  the  question  as  a 
.see   Harper   v.  Barsh,  10   llich.   Eq.    149 ;     mere  question  of  equity,  it  will  be  found 

479 


§  1594.]  DECREE    OF   SALE. 

sum  for  wliich  tlie  bond  was  given,  together  with  all  interest  that 
may  grow  due  thereon.  The  same  sum,  therefore,  is  differently 
secured  by  different  instruments;  by  a  penalty  and  by  a  specific 
lien.  The  creditor  may  resort  to  either,  and  if  he  resorts  to  the 
mortgage  the  penalty  is  out  of  the  question." 

The  American  cases  go  further  than  this,  and  hold  that  the  real 
debt  is  the  sum  specified  in  the  condition  of  the  bond,  with  interest, 
and  that  the  penalty  is  a  mere  matter  of  form  in  the  instrument 
declaring  the  debt.  This  is  the  view  taken  by  Chancellor  Wal- 
worth, and  followed  in  other  cases.  "  The  amount  secured  by  the 
condition  of  the  bond  is  the  real  debt,  which  he  was  both  legally  and 
equitably  bound  to  pay.  And  if  he  neglects  to  pay  the  money  when 
it  becomes  due,  there  is  no  rule  of  justice  or  common  sense  which 
should  excuse  him  from  the  payment  of  the  whole  amount  of  the 
principal  and  interest,  whether  it  be  more  or  less  than  the  former 
penalty  of  the  bond."  ^ 

A  decree  for  the  amount  of  the  face  of  a  bond  with  interest,  when 
the  bond  is  in  double  the  true  amount  of  the  debt,  is  erroneous,  and 
a  sale  under  it  will  be  enjoined.^ 

1594.  Interest.  —  The  decree  should  be  for  the  amount  of  the 
debt,  with  interest  thereon  if  it  bears  interest.^  If  the  interest  has 
been  paid  by  a  note  of  the  mortgagor,  and  this  remains  outstand- 
ing, the  amount  of  such  note  should  be  included  in  the  decree,  not 
only  as  against  the  mortgagor,  but  as  well  against  subsequent  in- 
cumbrancers, although  the  interest  is  indorsed  on  the  mortgage  note 
as  paid.^  If  the  debt  does  not  bear  interest  the  decree  should  not 
include  interest.^ 

He  may  be  allowed  interest  upon  amounts  paid  for  taxes  and 
other  claims  upon  the  property  ;  but  he  should  not  be  allowed  more 
than  the  legal  or  usual  rate  of  interest  as  against  a  junior  incum- 

very  diflScult  to  assign  a  satisfactory  reason  this   is  the   entire    debt    secured,  and   the 

why  the  obligee  should  be  permitted  to  re-  judgment  cannot  go  beyond  it. 

cover  a  larger  amount  upon  the  mortgage,  i  Mower   v.    Kip,  6  Paige,  88,  29  Am. 

which  is  a  mere  security  for  the  bond,  than  Dec.  748,  approved  in  Long  v.  Long,  16 

he  is  permitted  to  recover  upon  the  hond  N.   J.   Eq.   59,    in    which   case   Chancellor 

itself."  Green  fully  reviews  the  decisions. 

In  Cruger  v.  Daniel,  1  McMull.  Eq.  157,  2  Scriven  v.  Hursh,  39  Mich.  98. 

the  Chancellor,  referring  to  Clarke  v.  Ab-  '  Stickney  v.  Stickney,  77  Iowa,  699,  42 

ingdon,  very  justly  remarks  that  the  mort-  N.  W.  Rep.  518. 

gage  there  did  not  secure  the  bond,  nor  did  *  See  §  925;  Frink  r.  Branch,  16  Conn, 

it   secure  or  refer  to  the  penalty ;   and  he  260 . 

holds  that   when    the   mortgage  expressly  ^  Heydle  v.  Hazlehurst,  4  Bibb,  19. 
refers  to  the  bond  and  states  the  penalty, 

480 


THE   AMOUNT    OF   THE   DECREE.         [§§  1595,  1693. 

brancei',  though  he  ra;iy  have  an  agreement  with  the  mortgagor  for 
a  higher  rate  of  interest.^ 

Interest  upon  a  purchase-money  mortgage,  upon  land  to  which  the 
mortgagee  had  no  title  till  long  after  his  conveyance  to  the  mort- 
gagor, should  only  be  allowed  from  the  time  the  mortgagee  made 
the  title  valid  and  effectual,  unless  the  mortgagor  has  derived  a 
profit  from  the  possession  and  use  of  the  property  ;  and  not  even 
in  that  case  if  it  appears  that  the  use  of  the  land  was  of  value  to 
the  mortgagor  by  reason  of  improvements  made  by  him  upon  the 
land.^ 

Under  a  provision  of  the  Constitution  of  California  declaring 
that  any  contract  obliging  the  debtor  to  pay  the  tax  on  the  money 
loaned  shall  be  void  as  to  any  interest  specified  therein  and  as  to 
such  tax,  a  provision  in  a  mortgage  that,  in  case  of  foreclosure,  the 
mortgagee  may  include  therein  all  payments  made  by  him  for 
"  taxes  of  this  mortgage,  or  the  money  hereby  secured,"  is  void. 
But  this  provision  is  for  the  benefit  of  the  borrower,  and  he  may 
waive  it  if  he  sees  fit.  If  he  voluntarily  fulfils  his  protnise  to  pay 
interest,  it  is  through  a  mistake  of  law  on  his  part,  or  a  waiver 
of  a  known  right.  In  either  case  he  is  bound  by  his  own  act,  and 
cannot  recover  it,  or  have  it  credited  on  the  principal  of  the  loan.^ 

1595.  Exchange.  —  No  allowance  can  be  made  for  the  difference 
of  exchange,  though  the  mortgage  loan  was  negotiated  in  a  foreign 
country  wheie  the  mortgagee  resides.^ 

1596.  Insurance.  —  Premiums  paid  b}'^  the  mortgagee  for  insur- 
ance against  fire  are  a  charge  upon  the  premises  if  the  mortgagor 
has  expressly  made  them  such  ;  but  if  paid  without  such  agreement, 
they  cannot  be  allowed  in  the  judgment.^  They  are,  in  such  case, 
paid  merely  for  the  mortgagee's  own  security.  Premiums  for  insur- 
ance paid  after  the  commencement  of  the  action  will  not  be  allowed 
except  upon  a  supplemental  complaint.^ 

Doubtless  provision  might  be  made  in  the  decree  for  reimbursing 
the  mortgagee  for  money  paid  by  him  for  insurance  during  the  year 
allowed  by  statute  for  redemption  before  sale,  where  the  mortgage 
contains  covenants  that  the  mortgagor  would  keep  the  premises  in- 

1  Buttei-field   v.    Hungerford,    G8    Iowa,  Ch.    283,   14   Am.    Dec.   545;    Burgess   v. 

249,  26  N.  W.  Rep.  136.  Southbridge  Sav.  Bank,  2  Fed.  Rep.  500. 

■■^  Toms  V.  Bojes,  59  Mich.  380,  20  N.  W.  One  bondholder  j)aying  the  premiums  to 

Rep.  646.  preserve  tlie  security,  though    without  the 

•'*  Harralson  v.   Barrett    (Cal.),   34    Pac.  knowledge  of  the  other  bondholders,  has  a 

Rep.  342.  lien  for  the  amount  paid.     McLean  v.  Burr, 

*  Chapman  i;.  Robertson,  6  Paige,  627,  16  Mo.  App.  240. 

31  Am.  Dec.  264.     See  §  637.  «  Washburn  v.  Wilkinson,  59  Cal.  538. 

^  See  §  414;   Faure  v.   Winans,   Ilopk. 

VOL.  II.  31  4gl 


§  1597.]  DECREE    OF   SALE. 

sured,  or  tlmt,  in  case  of  bis  failure  to  insure,  the  mortgagee  might 
do  so,  and  that  the  premiums  shoukl  become  part  of  the  mortgage 
debt.  But  if  no  provision  be  inserted  in  the  decree  authorizing  the 
sheriff  to  pay,  out  of  the  proceeds  of  the  sale,  any  sums  which  the 
mortgagee  might  be  compelled  to  pay  thereafter  to  keep  the  prop- 
erty so  insured  during  the  year  allowed  by  the  statute  for  redemp- 
tion before  sale,  the  court  has  no  authority,  after  a  sale  of  the  land 
for  the  exact  amount  specified  in  the  judgment,  to  enter  further 
judgment  or  order  for  the  amount  so  paid  by  the  mortgagee  for  in- 
surance against  the  parties  personally  liable  for  the  mortgage  debt, 
and  award  execution  therefor.^ 

If  the  mortgage  be  of  a  leasehold  estate,  the  decree  may  include 
rent  paid  by  the  mortgagee  for  the  protection  of  the  estate.^ 

1597.  Taxes.  —  A  mortgagee  cannot  charge  to  the  mortgagor,  or 
have  included  in  a  decree  in  a  foreclosure  suit,  the  amount  he  has 
paid  as  taxes  on  his  mortgage  as  for  money  at  interest.  He  is  as 
much  bound  to  pay  the  tax  upon  this  as  upon  his  other  property.^ 
But  he  may  be  allowed  for  payments  made  upon  taxes  assessed  upon 
the  land,  and  which  are  a  charge  upon  it,  properly  payable  by  the 
mortgagor.*  The  bill  should  contain  a  proper  allegation  and  prayer 
in  regard  to  taxes,  otherwise  the  decree  cannot  properly  direct  an 
application  of  the  proceeds  of  a  sale  to  the  payment  of  the  delin- 
quent taxes.^  An  allowance  for  taxes  cannot  be  made  under  a  gen- 
eral prayer  for  relief.^  When  the  taxes  remain  outstanding  and 
unpaid,  the  decree  may,  upon  the  application  of  the  plaintiff,  prop- 
erly direct  that  the  taxes  due  on  the  property  be  first  paid  out  of 
the  proceeds  of  the  sale.''  In  rendering  judgment  for  a  deficiency 
against  a  purchaser  who  has  assumed  the  payment  of  a  mortgage, 
it  is  proper  that  the  taxes  due  upon  the  property  should  be  deducted 
from  the  proceeds  of  the  sale  before  ascertaining  the  deficiency,  for 


1  Northwestern    Mut.    Life   Ins.    Co.   v.  r.  Clark,  129  111.  466,  21  N.  E.  Rep.  850; 
Drown,  15  Wis.  419.  Young  v.  Omohundro,  69  Md.  424,  16  Atl. 

2  Robinson  V.  Eyan.  25  N.  Y.  320.  Rep.   120;   Neale  v.   Hagthorpe,  3  Bland, 

3  Pond  V.  Causdell,  23  N.  J.  Eq.  181.  551,  590. 

*  See  §§  1134,  1683;   Faure  v.  Winans,  5  Y)e  Leuw  v.  Neely,  71  111.  473;  Brown 

Hopk.  283, 14  Am.  Dec.  545  ;  Silver  Lake  v.  Miner,  128  111.  148,  21  N.  E.  Rep.  223. 

Bank  v.  North,  4  Johns.  Ch,  370;  Rapelyc  6  Brown  v.  Miner,  21  111.  App.  60,  21  N. 

V.  Prince,  4   Hill,  119,  40  Am.  Dec.  267;  E.  Rep.  223. 

Burr  t',  Veeder,  3  Wend.  412;    De  Leuw  ^  Poughkeepsie  Sav.  Bank  v.  Winn,  56 

V.   Neely,  71    111.  473;  Vaughn    r.   Nims,  How.   Pr.    368;  Opdyke   v.    Crawford,    19 

36  Mich.  297;  Johnson  v.  Payne,  11  Neb.  Kans.  604;  Easton  v.  Pickersgill,  55  N.  Y. 

269,  9.  N.  W.  Rep.  81  ;  Southard  v.   Dor-  310;  Tuck   v.    Calvert,  33   Md.   209,  224  ; 

rington,   10  Neb.  119,  4  N.  W.  Rep.  935;  Ketcham  v.  Fitch,  13  Ohio  St.  201 ;  Harris 

Seaman  v.  Huffaker,  21  Kans.  254;  Boone  v.  McCrossen,  31  Kan.  402. 
482 


THE   AMOUNT    OF   THE  DECREE.  [§   1597. 

it  is  the  duty  of  the  purchaser  to  see  that  the  taxes  are  paid.^  But 
after  trial  in  the  foreclosure  suit,  and  without  notice  to  the  mort- 
gagors, it  is  error  to  include  the  taxes  in  a  judgment  entered  merely 
upon  the  production  of  the  tax  receipt.^ 

If  the  taxes  were  illegally  assessed  and  the  payment  thereof  might 
have  been  successfully  resisted,  the  mortgagee  will  not  be  allowed 
to  recover  them.^ 

If  money  has  been  paid  under  a  foreclosure  judgment  upon  an 
assessment  which  is  afterwards  vacated,  the  payment  being  out  of 
money  to  which  the  mortgagor  would  be  entitled,  as  surplus  money 
after  sale,  he  is  entitled  to  recover  the  money  so  paid.* 

If  the  mortgagee  has  taken  a  tax  title  for  the  purpose  of  protect- 
ing the  mortgage,  the  decree  may  properly  provide  that  on  payment 
of  the  cost  of  the  tax  title  with  interest  the  mortgagee  shall  assign 
the  tax  title.^ 

If  a  mortgagee  has  paid  the  taxes  to  protect  his  security,  and 
afterwards  forecloses  his  mortgage  without  including  the  amount  so 
paid  in  his  complaint,  he  cannot  thereafter  maintain  an  action  to 
recover  such  amount,  for  the  reason  that  the  claim  for  taxes  became 
merged  in  the  mortgage,  and  constitutes  but  a  siugle  and  indivisible 
demand,  and  could  not  be  separated  and  collected  by  several  actions.*^ 
The  result  is  similar  in  case  the  mortgagee  pays  the  taxes  to  enable 
him  to  negotiate  the  mortgage,  and  he  afterwards  sells  the  mort- 
gage to  the  mortgagors,  and  executes  and  delivers  an  unconditional 
release  of  the  mortgage  and  the  debt  secured  thereby.  The  mort- 
gagee cannot  afterwards  maintain  an  action  against  the  mortgagors 
for  the  amount  of  the  taxes  so  paid.' 

Where  a  judgment  entered  upon  the  foreclosure  of  a  second  mort- 
gage provided  that  out  of  the  moneys  arising  from  the  sale  there 
should  be  deducted  any  liens  on  the  premises  for  taxes,  but  the 
whole  amount  realized  at  the  sale  was  paid  to  the  mortgagee  with- 
out deducting  or  paying  the  taxes,  in  an  action  by  the  first  mort- 
gagee, after  foreclosing  his  mortgage  against  the  second  mortgagee 
who  had  purchased  at  the  previous  sale,  to  recover  the  amount  paid 
for  taxes  upon  the  premises,  it  was  held  that  he  was  not  entitled  to 
recover.     The  first  mortgagee  not  having  been  a  party  to  the  judg- 

1  Fleishhauei-  v.  Doellner,  60  How.  Pr.  ^  Baker  v.  Clark,  52  Mich.  22,  17  N.  W. 
438.  Kep-  225. 

2  Northwestern  Mut.  Life  Ins.  Co.  i'.  «  Johnson  i;.  Payne,  11  Neb.  269,  9  N.  W. 
Allis,  23  Minn.  337.  Rep.  81. 

3  Atwater  v.  West,  28  N.  J.  Eq.  361.  "^  Kersenbrock  v.  Muff,  29  Neb.  530,  45 
*  Brehm  v.  New  York,  104  N.  Y.  186,  10    N.  W.  Kep.  778. 

N.  E.  Kep.  158. 

483 


§§  1598-1600.]  DECREE   OF   SALE. 

iiient  upon  the  second  mortgage,  he  was  not  entitled  to  enforce  its 
provisions.^ 

The  purchaser  of  the  property  at  the  foreclosure  sale  has  the 
right  to  insist  upon  the  payment  of  the  taxes  in  accordance  with 
the  judgment.- 

1598.  Costs  incurred  in  a  previous  action  at  law  upon  the 
note,  and  the  expenses  of  a  suit  prosecuted  in  good  faith  to  collect 
the  debt  out  of  personal  property  assigned  as  collateral  security  for 
the  same  debt,  should  be  allowed  in  the  decree  as  a  part  of  the 
mortfjage  debt.^ 

1599.  The  disbursements  made  by  the  plaintiff  in  the  proceed- 
ings for  foreclosure,  if  legally  and  properly  made,  are  always  allowed 
to  him,  though  not  sti'ictly  costs.* 

Paj'ments  made  by  the  plaintiff,  to  protect  his  interest  by  redeem- 
ing from  prior  incumbrances,  may  be  tacked  to  his  own  mortgage 
debt.^  Inasmuch  as  the  junior  mortgagee  is  thus  subrogated  to  tiie 
prior  mortgage,  his  decree  should  include  interest  on  that  mortgage 
at  the  rate  borne  by  it  to  the  date  of  the  decree.^ 

If  the  mortgagee  in  possession  has  made  repairs  or  improvements 
for  which  he  is  entitled  to  compensation,  or  if  a  purchaser  under  an 
imperfect  foreclosure,  who  is  in  effect  a  mortgagee  in  possession, 
makes  such  repairs  or  improvements,  he  should  ask  to  have  them 
allowed  for  in  the  decree.  If  the  decree  is  entered  without  includ- 
ing any  claim  for  repairs,  another  bill  cannot  be  brought  to  make 
them  a  charge  upon  the  property.  The  decree  as  entered  is  con- 
clusive of  the  amount  due  on  the  mortgage." 

1600.  Final  judgment.  —  A  judgment  which  settles  all  the 
rights  of  the  parties  and  directs  a  sale  of  the  premises,  and  that  the 
defendant  pay  any  deficiency  which  may  arise  after  such  sale,  is  a 
final  decree  from  which  an  appeal  may  be  taken  ;  though  in  a 
limited  sense  it  is  interlocutory,  inasmuch  as  further  proceedings 
are  necessary  to  carry  it  into  effect.^  It  leaves  nothing  further 
to   be  adjudicated.^     All    prior    decrees    are  interlocutory.^*^'      It  is 

1  Mut.  Life  Ins.  Co.  v.   Sage,  28   Hun,        ^  Mosier  y.  Norton,  83  III.  519. 

595,41  Hun,  .535.  '  Dewey  v-  Brownell,  54  Vt.  441,41  Am. 

2  People  V.  Bergen,  53  N.  Y.  404.  Rep.  852. 

■'  See  §  1084;  Pettibone  v.   Stevens,  15  8  Grant  v.   Phoenix  Ins.    Co.   106  U.  S. 

Conn.  19,  38  Am.  Dec.  57.  429,  431,  1  Sup.  Ct.  Rep.  414;  Malone  v. 

*  Benedict  v.  Warriner,  14  How.  Pr.  568.  Marriott,  64  Ala.  486;  Dodge  v.  Allis,  27 

6  Mosier  v.  Norton,  83  111.  519;  Kelly  v.  Minn.  376,  7  N.  W.  Rep.  732. 

Longshore,  78  Ala.  203;  Dimick  v.  Grand  ^  Morris  t-.  Morange,  38  N.  Y.  172,  4  Abb. 

Island  Banking  Co.  (Neb.),  55  N.  W.  Rep.  Pr.  N.  S.  447;  Bolles  v.  Duff,  43  N.  Y.469, 

1066.  10  Abb.  Pr    N.  S.  399,41    How.  Pr.  355 ; 

i'^  Kimbrell  v.  Rogers,  90  Ala.  339,  7  So.  Rep.  242. 
484 


THK    AMOUNT    OF    THE   DKCREE.  [§  1600. 

no  objection  to  such  judgment  tliat  it  was  not  rendered  by  a  court 
composed  of  the  same  judges  who  rendered  the  preliminary  judg- 
ment, ascertaining  and  settling  the  rights  of  the  parties  and  order- 
ing judgment.^  The  judgment  for  a  deficiency  is  entered  upon  the 
coming  in,  and  confirmation  of,  the  report  of  the  sale  without  any 
further  application  to  the  court.  The  execution  issues  by  virtue  of 
the  judgment  for  foreclosure.^  Nothing  remains  to  be  judicially  de- 
termined, and  an  appeal  may  be  taken  at  once.^  An  action  may  be 
brought  on  a  decree  which  ascertains  the  indebtedness  of  the  defend- 
ant, though  a  sale  of  the  land  is  ordered  to  satisfy  the  decree.* 

A  decree  determining  the  amount  of  the  mortgage  debt,  and 
ordering  a  sale  unless  the  same  is  paid  by  a  day  named,  but  also 
making  a  reference  to  a  master  to  report  the  amount  of  prior  liens, 
a  detailed  statement  of  the  several  properties  covered  by  the  mort- 
irniie,  and  a  statement  as  to  the  order  of  sale  and  as  to  the  form  of 
the  advertisement,  is  not  a  final  decree  from  which  an  appeal  may 
be  taken.^  An  order  adjudging  that  plaintiff  has  a  lien  on  the 
premises  described  in  the  complaint  to  secure  his  debt,  and  directing 
that  an  account  be  taken  to  ascertain  the  amount  thereof,  and  re- 
taining the  case  for  further  action,  is  not  appealable.  It  is  merely 
an  interlocutory  order.*^ 

An  appeal  is  the  proper  remedy  for  any  errors  in  substance  of  the 
decree,  or  in  the  directions  for  carrying  it  into  execution  ;  '^  but  the 
trial  court  has  control  of  the  judgment,  though  final,  and  may,  on 
proper  application  seasonably  made,  change  the  provisions  of  it,  or 
insert  other  provisions  for  the  benefit  of  any  of  the  parties  to  the 
action.*     The  court,  pending  an  appeal  without  supersedeas  from  a 

Hipp  V.  Huchett,  4  Tex.  20;  Dodge  i'.  Al-  i  Chamberlain  v.  Dempsey,  36  N.  Y.  144, 

lis,  27  Minn.  376.     A  decree  in  effect  that  reversing  9  Bosw.  540. 

unless  a  junior  mortgagee,  within    a  pre-  -  Bicknell  v.  Byrnes,  23  How.  486. 

scribed    time,   gives    the    prior  mortgagee  *  BoUes  i'.  Duff,  43  N.  Y.  469 ;  Morris  v. 

notice  of  his  desire  and  intention  to  redeem  Morange,  38  N.  Y.  172. 

the  lands  purchased  by  the  latter  at  a  former  *  Rowe  v.  Blake  (Cal.),  33  Pac.  Rep.  864. 

foreclosure  sale,  he  is  forever  barred    and  ^  Parsons    v.   Robinson,  122  U.  S.  112, 

foreclosed  of  and  from  all  right,  title,  inter-  7  Sup.    Ct.    Rep.    11.53;    Railroad    Co.    v. 

est,  and  equity  of  redemption  therein,  and  Swasey,   23   Wall.    405,    409 ;  Bostwick   v- 

the  lien  of  his  mortgage  thereon  cut  off  and  Brinkerhoff,  106  U.  S.  3,  1  Sup.  Ct.  Rep.  15. 

foreclosed,  and  that  the  plaintiff  shall  hold  s  Williams  v.  Walker,  107  N.  C.  334,  12 

the  title  thereto  free  from  such  lien,  is  a  final  S.  E.  Rep.  43;  Blackwell  v.  McCaine,  105 

judgment  and  appealable.     If  the  notice  is  N.  C.  460,  11  S.  E.  Rep.  360. 

not   given,   no  further  judgment   need    be  '  Barnard  v.  Bruce,  21  How.  Pr.  360. 

entered;   but  this  decree,  by  the   force  of  **  Livingston   r.  Mild  rum,  19  N.  Y.  440; 

its  own  provisions,  effectually  destroys   the  Russell  v.  Blakeman,  40  Minn.  463,  42  N. 

lien  of  the  defendant's    mortgage.      Moul-  W.  Rep.  391  ;  Fuller  f.  Brown,  35  Hun,  162 ; 

ton  V.  Cornish,  138  N.  Y.  133,33  N.  E.  Rep.  Brown   v.  Frost,  10  Paige,  243.     If,  after 

842.  a  decree  has  been   rendered,  this  has  been 

485 


§  1601.]  DECREE   OF   SALE. 

final  decree  settling  the  priority  of  liens  and  fixing  a  day  of  sale, 
has  power  to  postpone  the  sale,  if  a  sale  on  the  day  fixed  would  be 
oppressive  or  unjust.^ 

After  a  decree  from  which  no  appeal  is  taken,  and  after  a  sale 
under  such  decree,  a  mortgagor,  who  was  a  party  to  the  foreclosure 
suit,  is  estopped  by  the  decree  from  maintaining  a  suit  to  recover 
possession  of  the  property  on  the  ground  that  the  mortgage  was 
invalid.  The  question  of  the  validity  of  the  mortgage  is  res  aclju- 
dicata? 

A  judgment  of  foreclosure  and  a  judgment  for  a  deficiency  are 
each  appealable,  but  both  judgments  cannot  be  included  in  one  ap- 
peal.^ 

If  upon  an  appeal  the  judgment  for  a  deficiency  is  modified  so 
that  no  personal  judgment  shall  be  entered  against  one  of  the  de- 
fendants, but  in  other  respect*  the  judgment  is  affirmed,  the  former 
judgment  is  not  vacated,  and  a  sale  of  the  mortgaged  premises 
under  it,  pending  the  appeal,  is  not  rendered  void.*  A  decree  of 
foreclosure  cannot  be  changed  to  the  detriment  of  the  mortgagor 
without  notice  to  him.^  The  decree  is  a  final  judgment,  upon  which 
the  parties  to  the  suit  may  rely  ;  and  any  modification  of  it  with- 
out lawful  notice,  particularly  after  the  term  at  which  it  was  ren- 
dered, is  null  and  void.^  But  a  mere  mistake  in  the  record  entry  of 
a  decree  may  be  corrected  by  the  court  at  the  teim  at  which  it  was 
rendered,  or  by  virtue  of  a  statute  at  a  subsequent  term,  so  as  to 
make  the  same  correspond  with  the  decree  actually  pronounced  by 
the  court,  and  to  conform  to  the  pleadings  in  the  case.'' 

1601.  No  stay  of  proceedings  can  be  had  on  account  of  a 
controversy  between  subsequent  incumbrancers.  In  case  of  an 
appeal  from  a  decree  of  sale  on  a  bill  to  foreclose  a  mortgage,  the 
amount  of  which  and  of  other  mortgages  upon  the  property  are  not 
disputed,  though  there  is  a  controversy  about  the  validity  of  certain 
judgments  subsequent  to  the  mortgages,  the  court  will  not  stay  pro- 

fully  paid,  and  the  errors  released,  the  only  Wis.  150,  10  N.  W.  Rep.  87 ;  dinger  v.  Lid- 
mode  in  which  the  question  can  be  brought  die,  55  Wis.  621,  13  N.  W.  Rep.  703. 
to  the  attention  of  the  appellate  court  is  by  *  Batchelder  v.  Brickell,  75  Cal.  373,  17 
a  plea  of  the  release  of  errors.     Moore  v.  Pac.  Rep.  441. 

Williams,  132  111.  591,  24  N.  E.  Rep.  617;  5  Symns  v.  Noxon,  29  Neb.  404,  45  N. 

Crosby  v.  Kiest,  135  111.  458,  26  N.  E.  Rep.  W.  Rep.  680. 

rjSg.  6  Homan    v.  Hellman,  35  Neb.  414,  53 

1  Bound  V.    South  Carolina   Ry.  Co.   55  N.  W.  Rep.  369 ;  Blake  v.  McMurtry,  25 

Fed.  Rep.  186.  Neb.  290,41  N.  W.  Rep.  172. 

-  Robinson  v.  Walker,  81  Ala.  404,  1  So.  "  Hoagland  v.  Way,  35  Neb.  387,  53  N. 

Rep.  347.  W.  Rep.  207. 

»  Ballou  V.  Chicago  &  N.  W.  Ry.  Co.  53 
486 


COSTS.  [§§  1602,  1603. 

ceedin<ys  under  tlie  decree,  but  will  order  the  surplus  money  to  be 
brought  into  court  to  abide  its  decision  ;  for  in  such  case,  if  the 
decree  should  be  reversed,  the  mortgagor  cannot  be  prejudiced, 
while  the  mortgage  creditors  would  be  prejudiced  by  a  delay  in  re- 
covering their  claims.^ 

V.   Costs. 

1602.  In  general.  —  The  mortgagee  in  a  foreclosure  suit  as  in 
other  cases  is  ordinarily  entitled  to  his  costs  of  suit,  when  he  pre- 
vails and  obtains  a  decree,  whether  he  be  complainant  or  defendant.^ 
If,  however,  he  has  acted  oppressively  in  demanding  a  larger  sum 
than  was  due  on  his  mortgage,  and  the  mortgagor  has  been  diligent 
in  endeavoring  to  ascertain  from  him  the  amount  of  the  incum- 
brance in  order  to  pay  it,  costs  will  be  denied  to  him,  or  possibly,  in 
some  cases,  awarded  against  him  ;  ^  but  merely  claiming  in  good 
faith  a  larger  sum  than  the  court  finally  decides  that  he  is  entitled 
to  is  no  ground  for  refusing  him  his  costs.'*  He  may  be  made  to 
pay  costs  if  he  has  rejected  a  tender  of  the  full  amount  due  him,^ 
or  if  the  litigation  has  in  any  way  been  occasioned  by  his  miscon- 
duct. A  solicitor  may  make  himself  liable  for  costs  incurred  by  a 
sale  made  by  his  direction  when  he  knows  that  all  the  parties  in 
interest  have  made  a  complete  settlement  of  all  the  matters  in  con- 
troversy.^ 

1603.  The  matter  of  costs  depends  very  much  upon  the  stat- 
utes and  practice  of  the  several  States,  which  are  quite  unlike. 
The  foreclosure  suit  being  an  equitable  one,  the  costs  are  generally 
within  the  discretion  of  the  court.'^  But  although  there  is  no  fixed 
rule  for  giving  costs  as  in  courts  of  law,  the  courts  rarely,  if  ever, 

i  Schenck  v.  Couover,  13  N.  J.  Eq.  31.  In  New  York  it  was  formerly  held  that  a 

-  Loftus  V.  Swift,  2  Sch.  &  Lef.  642;  tender  made  no  difference  in  the  amouut  of 
Bartle  f.  Wilkin,  8  Sim.  238;  Witherell  v.  the  costs.  Bartow  v.  Cleveland,  16  How. 
Collins,  3  Madd.  255;  Concklin  v.  Codding-  Pr.  364,  7  Abb.  Pr.  339;  Pratt  v.  Hams- 
ton,  12  N.  J.  Eq.  2.50,  72  Am.  Dec.  393  ;  dell,  16  How.  Pr.  59,  62,  7  Abb.  Pr.  340,  n.; 
Benedict  v.  Oilman,  4  Pai<;e,  58.  And  with-  Stephens  v.  Veriane,  2  Lans.  90.  But  these 
out  reference  to  his  success.  Slee  v.  Man-  cases  are  overruled  in  Bathgate  v.  Haskin, 
hattan  Co.  1  Paige,  48  ;  Vroom  v.  Ditmas,  63  N.  Y.  261. 
4  Paige,  526.  '"  Hobbs  v.  Lippincott  (N.  J.  Eq),  23  Atl. 

3  Detillin  v.  Gale,   7  Ves.  583;  Large  v.  Rep.  955. 

Van  Doren,  14  N.J.  Eq.  208;  Vroom  r.  '  Garr  w.  Bright,  1  Barb.  Ch.  157;  O'Hara 

Ditmas,  4  Paige,  526;  Van  Burcu  u.  01m-  v.  Brophy,  24   How.  Pr.  379;    Bartow  v. 

stead,  5  Paige,  9.  Cleveland,  16  How.  Pr.  364  ;  Pratt  v.  Rams- 

*  Loftus  t;.  Swift,  2  Sch.  &  Lef.  642.  dell,    16   How.    Pr.    59,   62;    Oallaj^her   v. 

^  Pratt  V.  Stiles,  9  Abb.  Pr.  150,  17  How.  Egan,    2    Sandf.  742;    Lossec  v.  Ellis,  13 

Pr.  211  ;  Castle  v.  Castle,  78  Mich.  298,  44  Hun,  655. 
N.  W.  Rep.  378. 

487 


§  1604.]  DECREE   OF   SALE. 

refuse  costs.-'  The  disbursements  made  for  carrying  on  the  suit  are 
not  strictly  costs ;  bat  if  they  are  legally  made  and  are  of  a  reason- 
able amount  they  are  allowed  to  the  party  making  them.^  Pro- 
vision is  sometimes  made  that  a  plaintiff  may  serve  upon  a  defendant 
a  notice  that  no  personal  claim  is  made  upon  him  ;  and  that  in  such 
case  no  service  of  the  complaint  by  copy  need  be  made  on  such  de- 
fendant ;  and  then,  in  case  he  unnecessarily  defends,  he  is  liable 
in  costs  to  the  plaintiff.^  If  a  copy  of  the  complaint  be  served,  no 
notice  for  this  purpose  is  required.* 

Where  a  mortgage  secures  debts  to  two  persons  and  one  of  them 
claims  a  foreclosure  decree  and  sale  at  his  own  expense,  he  is  entitled 
to  costs  out  of  the  fund,  or  by  contribution  from  the  other  who  ac- 
cepted the  benefit  of  his  efforts.^ 

1604.  If  subsequent  incumbrancers  unnecessarily  appear  and 
answer,  they  are  not  entitled  to  costs  until  after  the  plaintiff's  debt 
and  costs  are  satisfied  ;  ^  and  it  is  not  necessary  that  they  should 
appear  to  a  foreclosure  suit  if  their  claims  are  correctly  set  forth  in 
the  bill,  as  their  rights  will  be  fully  protected  under  the  decree. 
Where  the  court  has  discretionary  powers  in  regard  to  costs,  and  the 
appearance  of  such  incumbrancers  though  proper  is  not  necessary, 
the  plaintiff,  upon  receiving  the  amount  due  him  after  he  has  brought 
suit,  may  discontinue  against  subsequent  incumbrancers  who  have 
appeared,  without  costs  to  them.''  Ordinarily,  however,  a  subse- 
quent mortgagee  would  be  entitled  to  costs  in  such  case.^  If  a 
second  mortgagee,  after  being  made  a  party  to  a  suit  to  foreclose  a 
prior  mortgage,  receives  payment  and  offers  to  disclaim,  he  is  entitled 
to  his  costs.^ 

A  subsequent  purchaser  of  the  premises  may  make  himself  per- 
sonally liable  for  costs,  though  not  liable  for  the  debt,  if  lie  makes 
an  unreasonable  and  unfounded  defence  to  the  suit,  and  the  property 
is  not  of  sufficient  value  to  pay  the  incumbrances.^*^ 

If  a  second  mortgagee,  upon  a  bill  to  foreclose  his  mortgage  upon 
several  lots,  makes  the  holders  of  the  prior  mortgages  upon  these 
lots  parties,  and  tliey  appear  and  prove  their  claims,  the  costs  of 
obtaining  the  decree,  as  well  as  the  costs  of  sale,  should  be  borne  by 

1  Stevens  v.  Veriane,  2  Lans.  90;  East-  Rep.  872;  Trustees  v.  Greenougli,  105  U. 
burn  V.  Kirk,  2  Joh«is.    Ch.  317  ;    Garr  i'.     S.  527,  532,  per  Bradley,  J. 

Bright,  1  Barb.  Ch.  157.  *^  Merchants'  Ins.  Co.  v.  Marvin,  1  Paige, 

2  Benedict  v.  Warriner,  14  How.  Pr.  568.     557  ;  Barnard  v.  Bruce,  21  How.  Pr.  3G0. 

3  Code  of  N.  Y.  §§  131,  157.  '  Gallagher  v.  Egan,  2  Sandf.  742. 

*  O'Hara  v.  Brophy,  24  How.  Pr.  379.  »  Young  v.  Young,  17  N.  J.  Eq.  161. 

5  Currie  i;.  Bittenbinder  (N.  J.),  7  Atl.         ^  Day  v.  Gudgen,  L.  R.  2  Ch.  Div.  209. 


10 


488 


Danbury  v.  Robinson,  14  N.  J.  Eq.  324. 


COSTS. 


[§§  1605,  1606. 


all  the  parties  who  uccept  the  benefit  of  the  proceedings,  in  propor- 
tion to  the  respective  amounts  received  by  them,  although  not 
enough  be  received  to  pay  tiie  prior  mortgages  in  full.^ 

1605.  Defendants  who  properly  appear  and  answer  and  make  a 
valid  defence  are  entitled  to  costs  as  a  general  rule.  But  several 
defendants  having  the  same  defence  and  employing  the  same  solici- 
tor are  not  allowed  to  swell  the  costs  by  filing  separate  answers.'^ 
A  prior  mortgagee,  whether  properly  made  a  party  for  the  purpose 
of  having  the  amount  of  his  claim  ascertained,^  or  whether  improp- 
erly joined,  is  entitled  to  costs,  to  be  paid  out  of  the  fund  in  the 
one  case,  or  in  the  other  by  the  plaintiff  personally.'* 

1606.  Attorney's  fees.'"' — A  reasonable  fee  for  the  expense  of 


1  Scott  v.  Soincrs  (N.  J.),  9  Atl.  Rep. 
718. 

-  Danbury  t'.  Robinson,  14  N.  J.  Eq.  324. 

"  Cliamberliiiu  v.  Denipsey,  36  N.  Y.  144, 
147  ;  Boyd  v.  Dodge,  10  Taige,  42;  Berlin 
Building' &  Loan  Asso.  i:  Clifford.  SON.  J. 
Eq.  482. 

*  Miilandon  v.  Brugiere,  11  Paijie,  163. 

^  A  stipulation  for  attorney's  fees  is  valid 
in  :  — 

North  Dakota  and  South  Dakota  :  Com  p. 
Laws,  §  5429  ;  Farmers'  Nat.  Bank  v.  Ras- 
mussen,  1  Dak.  60 ;  Danfortii  v.  Charles, 
1  Dak.  285,  46  N.  W.  Rep.  576 ;  Johnson 
V.  Day  (N.  D.),  50  N.  \V.  Rep.  701  ;  Laws 
Dak.  1889,  p.  31. 

Indiana:  Johnson  v.  Ho>ford,  10  N.  E. 
Rep.  407;  Billingsley  v.  Dean,  11  lud.  331, 

Iowa:  Sperry  v.  Horr,  32  Iowa,  184; 
Weatherby  v.  Smith,  30  Iowa,  131,  6  Am. 
Hep.  663  ;  Livermore  v.  Ma.xwell  (Iowa),  55 
N.  W.  Rep.  37.  By  statute,  18  Gen.  As- 
sembly, eh.  185,  §  3,  an  affidavit  to  certain 
facts  is  to  be  filed  before  the  attorney's  fee 
is  allowed.  See  Fletcher  v.  Kelly  (Iowa), 
55  N.  W.  Rep.  474. 

Illinois  :  Clawson  v.  Munson,  55  111.  394  ; 
Barry  v.  Guild,  126  111.  439,  18  N.  E.  Rep. 
759  ;  Casler  v.  Byers,  129  111.  657,  22  Ni  E. 
Rep.  507. 

Kansas  :  Seaton  v.  Scovill,  18  Kans.  433, 
435,  26  Am.  Rep.  779  ;  Tholen  v.  Duffy,  7 
Kans.  405  ;  HoWenstein  v.  Barnes,  5  Dill. 
482,  29  Am.  Rep.  406. 

Minnesota:  G.  S.  1891,  §  5398-5400; 
Jones  V.  Radatz,  27  Minn.  240,  6  N.  W.  Rep. 
800  ;  Griswuld  v.  Taylor,  8  Minn.  342. 

Missouri :  Bank  v.  Gay,  63  Mo.  33. 

Louisiana  :  Dletrick  v.  Bavhi,  23  La.  Ann. 


767 ;  Mullan  v.  His  Creditors,  2  So.  Rep. 
45  ;  Levy  v.  Beasley,  41  La.  Ann.  832,  6  So. 
Rep.  630;  Succession  of  Duhe,  41  La.  Ann. 
209,  6  So.  Rep.  .502. 

Florida  :  L'Engle  v.  L'Engle,  21  Fla.  131 . 

Idaho:  Broadbent  v.  Brumback,  16  Pac. 
Rep.  555. 

Nevada:  Cox  v.  Smith,  1  Nev.  161,  90 
Am.  Dec.  476. 

Pennsylvania:  Woods  v.  North,  84  I'a. 
St.  407,  410,  24  Am.  Rep.  201  ;  Johnston  v. 
Speer,  92  Pa.  St.  227,  37  Am.  Rep.  675  ; 
Ruling  I'.  Dr^xell,  7  Watts,  126  ;  Warwick 
Iron  Co.  V.  Morton,  148  Pa.  St.  72,  23  Atl. 
Rep.  1065. 

Wisconsin:  Morgan  v.  Edwards,  53  Wis. 
599,  11  N.  W.  Rep.  21,  40  Am.  Rep.  781. 

Georgia  :  National  Bank  v.  Danforth,  8(1 
Ga.  55,  7  S.  E.  Rep.  546;  Merck  v.  Mortgage 
Co.  7  S.  E.  Rep.  546;  Fechheimer  i'.  Baum, 
43  Fed.  Rep.  719;  Georgia  R.  R.  Co.  v. 
Pendleton,  87  Ga.  751, 13  S.  E.  Rep.  822. 

Alabama:  Munter  v.  Linn,  61  Ala.  492; 
Speakman  v.  Oaks  (Ala.)  11  So.  Rep.  836  : 
Lehman  v.  Comer,  89  Ala.  579,  8  So.  Rep. 
241  ;  Bynum  v.  Frederick,  81  Ala.  489,  8  So. 
Rep.  198. 

North  Carolina  :  The  court  will  not  allow 
fees  to  counsel  directly  for  services  rendered 
to  commissioners  appointed  to  sell  land  un- 
der foreclosure.  Ga}'  v.  Davis,  107  N.  C. 
269,  12  S.  E.  Rep.  194. 

California:  Hewitt  v.  Dean,  91  Cal.  5617, 
25  Pac.  Rep.  753.  Counsel  fees  stipulated 
to  be  paid  are,  like  the  costs,  a  mere  in- 
cident to  the  cause  of  action,  and  may  be 
fixed  by  the  chancellor  at  his  discretion,  not 
exceeding  the  amount  stipulated.  Carri- 
ere  v.  Minturn,  5  Cal.  435  ;  Monroe  v.  Fohl, 

489 


§  1606.] 


DECREE   OF   SALE. 


foreclosing  beyond  the  costs  allowed  by  law  may  be  contracted  for 
in  the  mortgage;  and  the  court  will  consider  the  amount  stipulated 
for  by  the  parties  to  be  reasonable,  unless  it  be  extravagantly  large 
and  extortionate.  A  percentage  may  be  allowed  instead  of  a  fixed 
sum  as  a  fee.^  But  no  allowance  will  be  made  in  the  decree  for 
such  fees  after  default,  even  when  provided  for  in  the  mortgage, 
unless  claim  is  made  for  them  in  the  bill.^  The  allowance  of  a 
larger  sum  than  that  stipulated  for  in  the  mortgage  is  erroneous.^ 
If  in  the  provision  for  attorney's  fees  the  amount  is  left  blank,  a 
reasonable  fee  may  be  allowed  by  the  court.^ 

A  stipulation  in  a  mortgage  allowing  counsel  fees  for  a  foreclosure 
does  not  entitle  the  plaintiff  to  counsel  fees  unless  he  has  paid  them 


72  Cal.  568,  14  Tac.  Rep.  514;  Rapp  v. 
Gold  Co.  74  Cal.  532,  16  Pac.  Rep.  325; 
Grangers'  Asso.  v.  Clark,  84  Cal.  201,  23 
Pac.  Rep.  1081  ;  White  v.  Allatt,  87  Cal. 
245,  25  Pac.  Rep.  420. 

South  Carolina :  Branyau  v.  Kay,  33  S. 
C.  283,  11  S.  E.  Rep.  970;  Aiiltman  v. 
Gibert,  28  S.  C.  303,  5  S.  E.  Rep.  806. 

New  York  :  An  extra  allowance  of  costs, 
under  Code  Civil  Proc.  §  3253,  may  be 
made  in  foreclosure  proceedings  in  a  sum 
not  exceeding  2^  per  cent,  of  the  amount 
due  on  the  mortgage,  nor  the  aggregate 
sum  of  $200,  "  in  the  discretion "  of  the 
court.  Such  discretion  will  not  be  reviewed 
on  appeal  unless  there  has  been  a  clear  abuse 
of  discretion.  Mut.  Life  Ins.  Co.  v.  Cran- 
well,  10  N.  Y.  Supp.  404;  Morss  v.  Has- 
hrouck,  13  Weekly  Dig.  393;  Hamilton  v. 
Railway  Co.  8  N.  Y.  Supp.  546. 

Such  stipulation  is  void  in  Michigan. 
It  is  regarded  as  a  penalty.  Bullock  i\ 
Taylor,  39  Mich.  137,  33  Am.  Rep.  356; 
Van  Marter  v.  McMillan,  39  Mich.  304; 
Myerr.  Hart,  40  Mich.  517,  29  Am.  Rep. 
719  ;  Vosburgh  v.  Lay,  45  Mich.  455,  8  N. 
W.  Rep.  99;  Botsfordi;.  Botsford,49  Mich. 
29,  12  N.  W.  Rep.  897;  Bendey  v.  Town- 
send,  109  U.  S.  665,  3  Sup.  Ct.  Rep.  482. 

Kansas  :  Void  since  Laws  1876,  ch.  77,  §  1. 

Ohio :  Void  also.  Lea  vans  v.  Ohio  Nat. 
Bank  (Ohio)  34  N.  E.  Rep.  1089  ;  State 
V.  Taylor,  10  Ohio,  378  ;  Shelton  v.  Gill,  1 1 
Ohio,  417  ;  Spalding  v.  Bank,  12  Ohio,  544 ; 
Martin  i'.  Bank,  13  Ohio,  250. 

Kentucky:  Void,  Thomasson  v.  Town- 
send,  10  Bush,  114;  Rilling  v.  Thompson, 
12  Bush,  310. 

Nebraska:  Void    also,  since    statute    of 

490 


1879,  Gray  v.  Havemeyer,  53  Fed.  Rep.  174; 
Vitrified  Paving  Co.  v.  Snead  Iron  Works, 
56  Fed.  Rep.  64;  Dodge  v.  Tulleys,  144  U. 
S.  451,  12  Sup.  Ct.  Rep.  728;  Dow  v.  Up- 
dike, 11  Neb.  95,  7  N.  W.  Rep.  857;  Hardy 
y.  Miller,  11  Neb.  395,  9  N.  W.  Rep.  475  ; 
Security  Co.  v.  Eyer  (Neb.),  54  N.  W. 
Rep.  838. 

1  See  §§  359,  635,  1923  ;  Cox  v.  Smiih, 
1  Nev.  161,  90  Am.  Dec.  476;  McLane  v. 
Abrams,  2  Nev.  199.  In  this  case  a  stipu- 
lation for  ten  per  cent,  on  the  amount  of 
the  mortgage,  $6,000,  was  not  regarded  as 
unreasonable.  In  Daly  w.  Maitlaud,  88  Pa. 
St.  384,  13  West.  Jur.  204,32  Am.  Rep.  457, 
a  stipulation  for  a  commission  of  five  per 
cent,  on  a  mortgage  of  $14,000  was  consid- 
ered to  be  unreasonable.  See  Balfour  v. 
Davis,  14  Oreg.  47.  If  the  court  allows  as 
attorney's  fees  a  sum  greater  than  that  stip- 
ulated in  the  mortgage,  the  plaintiff  may 
remit  the  excess  before  appeal,  giving  no- 
tice to  the  defendant.  Killops  v.  Stephens, 
73  Wis.  111,40  N.W.  Rep.  652. 

'-  Augustine  y.  Doud,  1  Bradw.  588. 

3  Palmeter  v.  Carey,  63  Wis.  426,  21  N. 
W.  Rep.  793,  23  N.  W.  Rep.  586. 

*  Alden  v.  Pryal,  60  Cal.  215.  Testi- 
mony may  be  taken  by  the  court,  or  a  mas- 
ter, to  ascertain  what  a  reasonable  fee  in 
the  case  is  ;  but  it  is  error  to  allow  the  fee 
without  taking  such  testimony.  The  record 
should  show  that  the  allowance  was  made 
upon  proper  testimony.  Long  v.  Herrick, 
28  Fla.  755,  8  So.  Rep.  50  ;  Nelson  v.  Ever- 
ett, 29  Iowa,  184;  Williams  v.  Meeker,  29 
Iowa,  292;  McGill  v.  Griffin,  32  Iowa,  445  ; 
Jones  y.  Schulmeyer,  39  lud.  119;  Tholen 
V.  Duffy,  7  Kans.  405. 


COSTS.  [§  1606. 

or  become  liable  for  them  ;  ^  he  cannot  recover  such  fees  for  per- 
sonally prosecuting  his  foreclosure.^  It  is  not  necessary  that  there 
should  be  any  averment  that  the  amount  of  fees  stipulated  for  in 
tlie  deed  is  reasonable,  as  they  are  a  mere  incident  to  the  cause  of 
action,  and  may  be  fixed  by  the  court  at  its  discretion.^  If  there  be 
no  stipulation  in  the  mortgage  for  counsel  fees  they  cannot  be  re- 
covered.4  This  is  wholly  a  matter  of  contract,  unless  provided  for 
by  statute.^ 

Indorsers  of  the  mortgage  note  may  waive  objection  to  a  stipula- 
tion in  the  mortgage  as  to  attorney's  fees,  and  their  waiver  is  a  ratifi- 
cation of  the  maker's  act  in  making  the  stipulation,  and  they  cannot 
object  to  a  judgment  which  includes  the  payment  of  such  fees.^ 

In  Pennsylvania,  however,  a  stipulation  for  the  payment  of  attor- 
neys' commissions  upon  mortgages  is  valid  and  not  controlled  by 
statute,  but  it  is  nevertheless  regarded  as  in  the  nature  of  a  penalty 
rather  than  as  liquidated  damages,  and  is  subject  to  the  equitable 
control  of  the  court,  and  will  be  enforced  only  to  the  extent  of  com- 
pensating the  mortgagee  for  reasonable  and  necessary  expenses  of 
collection.^  A  stipulation  allowing,  in  case  of  suit,  five  per  cent, 
attorney's  commissions  on  the  $15,000  involved,  was  held  to  be 
unreasonable,  an  allowance  of  two  per  cent,  being  sufficient.^  Under 
a  stipulation  for  the  payment  of  attorney's  fees  in  case  a  suit  for 
foreclosure  is  brought,  payment  or  tender  of  payment  of  the  mort- 
gage debt  after  the  bringing  of  suit  but  before  judgment  does  not 

1  Keed  v.  Catlin,  49  Wis.  686,  6  N.  W.  §  3253.     And  see  Hunt  v.  Chapman,  62  N. 

Kep.  326  ;  Bank  of  Woodland  v.  Treadwell,  Y.  333.     See  Bockes  v.  Hatliorn,  17  Hun, 

55  Cal.  379  ;  Broadbent  v.  Bruniback  (Ida-  87  ;  O'Neill  v.  Gray,  39  Hun,  566. 

ho),  16  Pac.  Rep.  555.  For  circumstances  under  which  the  stipu- 

-  Patterson  v.  Donner,  48  Cal.  369;  Eeed  lated  attorney's  fees  will  not  be  allowed,  see 

V.  Catlin,  49  Wis.  686,  6  N.  W.  Rep.  326.  Parks  v.  Allen,  42  Mich.  482,  4  N.  W.  Rep. 

3  Carriere  v.  Minturn,  5   Cal  435;  First  227;  Soles  v.  Sheppard,  99  111.  616. 

Nat.  Bank  v.  Holt,  87  Cal.  158,  25  Pac.  Rep.  ^  Georgia  R  R.  Co.  v.  Pendleton,  87  Ga. 

272.  751,  13  S.  E.  Rep.  822.     One  of  the  indors- 

■*  Sichel  V.  Carrillo,  42  Cal.  493;  Stover  y.  ers  being  the  president  of  the  corporation 
Johnnycake,  9  Kans.  367 ;  Hamlin  v.  Rog-  which  executed  the  mortgage,  and  he  sign- 
ers, 78  Ga.  631,  5  So.  Rep.  125  ;  Howell  v.  ing  the  same  as  president,  his  assent  to  the 
J'ool,  92  N.  C.  450;  Wylie  v.  Kariier,  54  stipulation  as  to  attorney's  fees  was  given 
Wis.  591, 12  N.  W.  Rep.  57.  thereby,  and  no  further  waiver  as  to  him  was 

In  California,  when  a  mortgage  jjrovides  necessary, 

for  an  attorney's  fee,  the  court  cannot  allow  ^  Lewis  v.  Germania  Sav.  Bank,  96  Pa. 

more    than    is   stijiulated    for.     Monroe   v.  St.  86;  Daly  i>.  Maitland,  88  Pa.  St.  384, 32 

Pohl,  72  Cal.  568,  14  Pac.  Rep.  514.  Am.  Rep.  457,  overruling  to  the  contrary 

An  allowance  in  excess  of  tlie  sum  stip-  Robinson  v.  Loomis,  51  Pa.  St.  78. 

ulated  for  in  the  mortgage  may  be  remitted,  ^  Warwick  Iron  Co.  y.  Morton,  148  Pa. 

either  before  or  after  judgment,  and  the  error  St.  72,  23  Atl.  Rep.  1065  ;  Daly  v.  Maitland, 

cured.     Killops  y.  Stephens,  73  Wi.s.  111,40  88  Pa.  St.  384;  Franklin   y.  Kurtz,  3  Del. 

N.  W.  Rep.  652.  Co.  (Pa.)  Rep.  590. 

•'■'  As   in  New  York:  Code  of   Civ.  Pro.  491 


§  1606  a.]  DECREE   OF   SALE. 

relieve  the  mortgagor  from  his  agreement.^  But  if  it  appears  that 
no  demand  of  payment  was  made  before  entry  of  judgment,  and 
that  the  debtor  promptly  paid  or  offered  to  pay  the  debt,  interest, 
and  costs  at  maturity,  the  creditor  cannot  recover  attorney's  com- 
missions. In  such  case  the  necessity  of  resorting  to  the  services  of 
an  attorney  does  not  appear.^ 

Under  a  stipulation  in  the  mortgage  that  an  attorney's  fee  shall 
be  allowed  if  the  mortgage  is  "  collected  by  suit,"  if  the  mort- 
gagee is  made  a  defendant  in  an  action  for  partition,  and  has 
judgment  for  his  note,  the  note  is  "  collected  by  suit,"  and  the  mort- 
gagee is  entitled  to  the  attorney's  fee.^  Where  a  mortgage  pro- 
vided that  out  of  the  money  arising  from  a  sale  there  might  be 
retained  the  principal  and  interest,  together  with  costs  of  sale  and 
foreclosure,  including  counsel  fees  at  a  stipulated  rate,  on  the  amount 
found  by  the  decree,  it  was  held  that,  in  case  of  payment  after  suit 
but  before  decree,  the  mortgagee  was  not  entitled  to  recover  fees.* 

But  the  statute  of  another  State  allowing  an  attorney's  fee  will 
not  be  enforced  in  a  State  where  such  a  fee  is  not  allowed,  though 
the  mortgage  and  mortgage  note  both  expressly  provide  that  they 
are  to  be  construed  by  the  laws  of  such  other  State.  The  laws  of 
the  place  of  the  forum  govern  the  application  of  the  remedy,  such 
as  the  recovery  of  costs  and  the  like.^ 

1606  a.  A  stipulation  to  pay  a  reasonable  attorney's  fee  for 
foreclosure,  to  be  taxed  in  the  judgment,  is  not  usurious  and 
will  be  enforced.*^  The  debtor,  by  neglecting  or  refusing  to  pay, 
imposes  upon  the  mortgagee  the  expense  of  resorting  to  law  to  en- 
force his  rights,  and  it  is  only  just  that  the  expenses  of  foreclosure 
should  be  borne  by  the  party  wliose  own  wrong  has  made  it  neces- 

1  Warwick  Iron  Co.  v.  Morton,  148  Pa.  6  §§  635,  1923  ;  Weatherby  v.  Smith,  30 
St.  72,  23  Atl.  Rep.  1065  ;  Imler  v.  Imler,  Iowa,  131  ;  Gowerw.  Carter,  3  Iowa,  244,  60 
94  Pa.  St.  372  ;  Mjoncs  v.  Bank,  45  Minn.  Am.  Dec.  71 ;  Gilmore  y.  Ferguson,  28  Iowa, 
335,  47  N.  W.  Rep.  1072.  220 ;  Conrad  v.  Gibbon,  29  Iowa,  120  ;  Mc- 

2  Lindley  v.  Ross,  137  Pa.  St.  629,  20  Gill  y.  Griffin,  32  Iowa,  445  ;  Nelson  y.  Ever- 
Atl.  Rep.  944;  Moore's  Appeal,  110  Pa.  St.  ett,  29  Iowa,  184;  Mills  Co.  Nat.  Bank  v. 
433,  1  Atl.  Rep.  593  ;  Johnson  v.  Marsh,  21  Perry,  72  Iowa,  15,  33  N.  W.  Rep.  341,  2 
W.  N.  C.  570.  Am.  St.  Rep.  228 ;  Broadbent  v.  Brumback, 

3  Branyonr.  Kay,  33  S.  C.  283,  11  S.  E.  16  Pac.  Rep.  555;  Griswokl  v.  Taylor,  8 
Rep.  970.  Minn.  342  ;  Tallman  v.  Truesdeli,  3  Wis. 

*  Lammon  y.  Anstin  (Wash.  St.),  33Pac.  443;  Machine  Co.   v.   Moreno,  6   Sawyer, 

Rep.  33,   citing  Stover   v.  Johnnycake,    9  35.     In  Williams  v.  Meeker,  29  Iowa,  292, 

jKans.  367  ;    Wylie    v.  Karner,  54  Wis.  591,  •  an  attorney's  fee  of  S75  was  allowed.     Na- 

12  N.  W.  Rep.  57;  Monroe  v.Yo\\\,12  Cal.  tional  Bank  v.  Danforth,  SO  Ga.  55,  7  S. 

568,  14  Pac.  Rep.  514;  Schmidt  i-.  Potter,  E.  Rep.  546;  Merck  v.   Mortgage  Co.   79 

35  Iowa,  426.  Ga.  213,  7  S.  E.  Rep.  265. 

5  Security  Co.  v.  Eyer  (Neb.),  54  N.  W. 
Rep.  838. 

492 


COSTS.  [§  1606  a. 

sary  to  incur  them.  A  stipulation  for  the  payment  of  an  attorney's 
fee  of  125  on  the  foreclosure  of  a  mortgage  of  -$11,000  is  not  unrea- 
able.  Nor  is  a  stipulation  for  $250  in  a  mortgage  for  $9,000.^  It 
is  presumed  that  such  stipulations  are  made  in  reference  to  the 
costs  and  expenses  otherwise  chargeable,  and  that  such  fee  is  an 
allowance  additional  to  these.^  A  stipulation  of  five  per  cent,  of 
the  amount  of  the  mortgage  for  counsel  fees  is  additional  to  the 
costs  recoverable  by  statute."^  A  provision  in  the  mortgage  that  the 
mortgagor  shall  in  case  of  foreclosure  pay  the  costs,  "  and  fifty  dollars 
as  liquidated  damages  for  the  foreclosure  of  the  mortgage,"  was  held 
to  be  void,  because  so  indefinite  that  the  court  could  not  tell  whether 
the  payment  was  intended  to  be  for  something  legal  or  illegal.  A 
judgment  rendered  under  such  a  stipulation  for  fifty  dollars  as  at- 
torney's fees  was  declared  erroneous.*  But  a  stipulation  that  the 
mortgagee  shall  be  entitled  "to  a  judgment  for  the  possession  of 
said  premises,  and  costs,  expenses,  and  attorney's  fees  of  ten  per 
cent,  of  the  amount  due  for  foreclosing  said  mortgage,"  is  valid  ; 
and  on  a  mortgage  debt  of  $4,000  or  less,  the  amount  is  not  so  ex- 
cessive that  a  court  of  equity  will  refuse  to  enforce  it.^  Under  a 
provision  in  a  power  of  sale  for  an  attorney's  fee  in  case  of  fore- 
closure, no  allowance  can  be  made  if  the  mortgage  is  foreclosed  in 
chancery  instead.^  A  stipulation  that  "  an  attorney's  fee  of  fifty 
dollars  for  foreclosure,  with  costs  of  suit  and  accruing  costs,"  shall  be 
taxed  against  the  mortgagor,  does  not  authorize  such  a  fee  in  case 
there  be  a  decree  for  foreclosure,  and  the  mortgagor  pays  the  debt 
after  suit  is  commenced,  but  before  a  decree  of  sale  is  entered.' 

A  stipulation  for  an  attorney's  fee  in  a  mortgage,  made  while 
a  statute  allowing  such  a  fee  was  in  force,  is  not  affected  by  a 
repeal  of  that  act.^ 

1  Telford  v.  Garrels,  132  111.  550,  24  N.  *  Foote  v.  Sprague,  13  Kans.  155;  Kurtz 
E.  Rep.  573.  As  to  reasonable  allowance,  v.  Sponable,  6  Kans.  395;  Tholen  v.  Duffy, 
see  also  Mclntire  v.  Yates,  104  111.  491.  7  Kans.  405  ;  Stover  v.  Johnnycake,  9  Kans. 

2  Hitchcock   v..  Merrick,    15  Wis.    522;  367. 

Rice  V.  Cribb,  12  Wis.  179;  Boyd  i'.  Sum-  ^  Sharp  v.  Barker,  11  Kans.  381. 

ner,  10  Wis.  41 ;  Tallman  v.  Truesdell,  3  ^  gage  i;.  Riggs,  12  Mich.  313;  Van  Mar- 

Wis.  443.     In  Remington  v.   Willard,   15  ter  v.  McMillan,  39  Mich.  304;  Hardwick 

Wis.  583,  the  mortgage  stipulated  for  a  fee  v.  Bassett,  29  Mich.   17.     In  this  case  the 

of  $75,  and   the  court  allowed  under  the  court  below  thought  a  fee  of  $75  "  a  i  ea- 

Code   five   per   cent,  on    the  amount   due,  sonable  number  of  dollars,"  according   to 

being  a  very  much  larger  sum.     A   stipu-  the  terms  of  the  mortgage. 

latiou  for  $100  solicitor's  fees,  in   a  mort-  "  Jennings  v.  McKay,  19  Kans.  120,  dis- 

gage  for  $10,000,  was  enforced  in  Pierce  r.  tinguished   from    Life    Asso.   v.   Dale,    17 

Kneeland,  16  Wis.  672,  84  Am.  Dec.  726.  Kans.  185. 

■'  Grontier  v.  Minturn,  5  Cal.  492;  Car-  »  White  v.  Rourke,  11  Neb.  519. 
riere  v.  Minturn,  5  Cal.  435. 

493 


§§  1606  5,  1607.]  DECREE   OF   SALE. 

A  mortgagee  in  whose  favor  there  is  a  stipulation  that  he  shall 
be  entitled  to  an  attorney's  fee  in  any  action  that  he  may  bring  on 
the  mortgage  may  claim  such  fee  when,  as  a  defendant  in  a  foreclos- 
ure suit,  he  sets  up  his  cause  of  action  ;  for  this  is  in  effect  bringing 
an  action  on  the  morto-acre.i 

1606  h.  An  allowance  may  be  made  to  a  mortgagee  for  ex- 
penses incurred  in  a  foreclosure  suit  aside  from  an  allowance  for 
attorney's  fees,  where  the  mortgage  so  provides.^  But  a  trust  deed 
which  allows  the  payment  of  solicitor's  fees,  "  and  all  other  expenses 
of  the  trust,"  does  not  warrant  the  payment  of  the  cost  of  an  ab- 
stract of  title,  and  expenses  incurred  in  procuring  information  pre- 
paratory to  bringing  suit  for  foreclosure.^ 

An  allowance  cannot  be  made  to  the  mortgagor  for  counsel  fees 
when  the  property  is  insufficient  to  pay  the  mortgage  debt.* 

Courts  of  equity  may  allow  a  mortgagee  counsel  fees  incurred  in 
defending  his  title,  without  any  express  contract ;  ^  but  fees  paid  to 
counsel,  for  resisting  an  application  by  the  assignee  in  bankruptcy 
of  the  mortgagor  to  enjoin  a  sale  under  a  power  in  the  mortgage, 
do  not  constitute  a  payment  in  defence  of  the  mortgage  title.^ 

1607.  An  irregular  attempt  at  foreclosure,  abandoned  after  a 
single  publication  of  the  notice  on  account  of  a  defect  in  this,  does 
not  entitle  the  mortgagee  to  any  attorney's  fee  provided  for  in  the 
mortgage  upon  a  foreclosure  of  it.  By  declining  a  tender  of  the  full 
amount  due,  because  such  fee  is  not  paid  in  addition,  he  renders 
himself  liable  to  a  statutory  penalty  for  refusing  to  discharge  a 
mortgage.'  A  mortgagee  is  not  generally  entitled  to  costs  of  a  fore- 
closure defective  through  an  error  of  his  own  in  the  proceedings, 
whereby  a  new  foreclosure  is  rendered  necessary.^ 

Where  a  mortgage  provided  that  "  in  the  event  of  foreclosure 
sixty  dollars  attorney's  fee  shall  be  by  the  court  also  taxed,  and 
included  in  the  decree  of  foreclosure,"  it  was  held  that  a  tender 
before  decree  not  including  this  fee  was  good,  and  that  this  fee 
could  not  be  collected  except  by  having  it  taxed  in  the  decree.^ 
But  where  a  mortgage  provided  that,  in  case  a  settlement  was 

1  Lanoue  v.  McKinnon,  19  Kans.  408.  ^  Lomax  v.  Hide,  2  Vern.  185;  Hunt  v. 

2  Mercantile  Trust  Co.  v.  Missouri,  K.  &    Fownes,  9  Ves.  70. 

T.  Ry.  Co.  41  Fed.  Rep.  8.  «  Maus  i'.  McKellip,  38  Md.  231. 

3  Cheltenham  Imp.  Co.  r.  Whiteliead,  128  "  Collar  v.  Harrison,  30  Mich.  66. 
III.  279,  21  N.  E.  Rep.  569;  Equitable  L.  »  Clark  i?.  Stilson,  36  Mich.  482. 
Assnr.  Soc.  v.  Olyphant,  10  N.  Y.  Supp.  659.  •'  Schmidt  v.  Potter,  35  Iowa,  426. 

*  Mercantile  Trust  Co.  v.  Missouri  K.  & 
T.  Rv.  Co.  41  Fed.  Rep.  8. 
494 


COSTS.  [§  1607. 

made  after  a  suit  to  foreclose  was  instituted,  there  should  be  taxed 
as  costs  and  included  in  the  judgment  the  sum  of  8250  for  attor- 
neys' fees,  and  the  defendant  without  answering  paid  into  court  the 
mortgage  debt  and. the  ordinary  costs,  which  the  plaintiff  accepted 
and  the  suit  on  motion  of  the  defendants  was  dismissed,  the  accept- 
ance of  the  amount  deposited  was  held  not  to  estop  the  plaintiff 
from  claiming  the  stipulated  attorney's  fees,  and  the  order  dismiss- 
ing the  suit  was  vacated.^ 

1  Hoyt  V.  Smith,  4  AVasIi.  St.  640, 30  Pac.  Rep.  665. 

495 


CHAPTER   XXXVI. 


FORECLOSURE   SALES   UNDER    DECREE   OF   COURT. 


I.  Mode  and  terms  of  sale,  1608-1615. 
IL  Sale  in  parcels,  1616-1619. 
in.  Order  of  sale,  1620-1632. 
IV.  Conduct  of  sale,  1633-1636. 
V.   Confirmation  of  sale,  1637-1641. 
IV.  Enforcement  of  sale  against  the  pur- 
chaser, 1642-1651. 


VII.  The  deed,  and  passing  of  title,  1652- 
1662. 
VIII.  The   delivery  of   possession  to   pur- 
chaser, 1663-1667. 
IX.  Setting  aside  of  sale,  1668-1681. 


I.  3Iode  and  Terms  of  Sale. 

1608.  A  sale  under  a  decree  of  court  is  in  contemplation  of 
law  the  act  of  the  court.  It  is  made  through  the  instiumentality 
of  some  officer  designated  by  statute  or  appointed  by  the  court. 
Whatever  name  be  given  to  this  officer,  whether  master  in  chancery, 
referee,  trustee,  commissioner,  or  sheriff,^  in  making  the  sale  he  acts 
as  the  agent  of  the  court,  and  must  report  to  it  his  doings  in  the 
execution  of  its  order.  This  report  should  set  out  all  the  proceed- 
ings incident  to  the  sale,  the  manner  and  particulars  of  it,  the  con- 
veyance to  the  purchaser,  and  the  payment  of  the  proceeds.^  When 
the  sale  is  confirmed  it  becomes  the  act  of  the  court,  or,  in  other 
words,  a  judicial  sale;  but,  until  confirmed,  no  title  passes  to  the 
purchaser.  In  this  respect  the  sale  is  unlike  a  sheriff's  sale,  which 
is  a  ministerial  act,  and  the  officer,  and  not  the  court,  is  regarded  as 
the  vendor  ;  and  which,  if  made  conformably  to  law,  is  final  and 
valid,  and  passes  the  title,^ 

A  decree  of  foreclosure  and  sale  is  not  outlawed  by  the  expira- 
tion of  twenty  years,  or  of  any  number  of  years,  and  the  question 

^  Heyer  v.  Deaves,  2  Johns.  Ch.  154; 
Mayer  v.  Wick,  15  Ohio  St.  548.  In  the 
federal  courts  the  sale  is  usually  made  by 
the  marshal  of  the  district,  or  by  a  master 
specially  appointed.  Blossom  v.  Railroad 
Co.  3  Wall.  196,  205.  The  sheriff  or  other 
officer  to  whom  the  order  is  given  may  sell, 
though  his  term  of  office  afterwards  expires 
before  the  sale.  Cord  v.  Hirsch,  17  Wis. 
403. 

That  the  person  appointed  to  make  the 
sale   is  styled   in   the   decree  a   "commis- 

496 


sioner"  instead  of  "master"  is  no  ground 
for  setting  aside  the  sale,  when  the  author- 
ity and  duties  prescribed  are  the  same. 
Mann  v.  Jennings,  25  Fla.  730,  6  So.  Rep. 
771. 

2  For  form  of  report  used  in  New  York, 
see  5  Wait's  Practice,  228. 

3  Rorer's  Jud.  Sales,  §§  1-68  ;  Harrison 
V.  Harrison,  1  Md.  Ch.  Dec.  331,  335  ;  Wil- 
liamson V.  Berry,  8  How.  495, 546;  Mebane 
V.  Mebane,  80  N.  C.  34. 


MODE   AND   TERMS   OF   SALE.  [§  1609. 

whether  the  decree  will  be  enforced  by  sale  after  a  long  lapse  of 
time  is  one  for  the  court  to  decide,  upon  a  consideration  of  all  the 
facts,!  and  its  decision  upon  such  a  question  is  not  generally  appeal- 
able.2 

After  the  death  of  the  defendant  mortgagor  the  court  may  make 
an  order  providing  for  carrying  out  a  decree  of  foreclosure  without 
reviving  the  action  against  his  heirs  or  representatives.^ 

1609.  What  may  be  sold.  —  Mortgages  of  estates  for  years,  as 
well  as  those  in  fee,  may  be  foreclosed  by  sale.^ 

Generally  no  other  or  greater  interest  than  that  covered  by  the 
mortgage  can  be  sold  except  by  consent,  or  in  case  of  an  after- 
acquired  title  of  the  mortgagor.^  On  a  bill  by  a  junior  mortgagee 
nothing  more  than  the  equity  of  redemption  mortgaged  to  him  can 
be  decreed  to  be  sold,  unless  the  prior  mortgagee  consents  that  the 
decree  may  be  made  for  the  sale  of  the  property  and  the  payment 
of  his  mortgage  also.^  When,  however,  all  the  incumbrances  are 
due,  and  all  the  incumbrancers  are  parties  to  the  suit,  and  the  cir- 
cumstances of  the  case  show  that  the  interests  of  the  mortsmcror 
and  of  the  incumbrancers  require  it,  the  court  will  order  a  sale  of 
the  entire  incumbered  property." 

Furthermore,  the  order  of  sale  cannot  embrace  other  lands  not 
described  in  the  mortgage;^  though  when  through  mistake  the 
description  in  a  mortgage  did  not  embrace  a  portion  of  the  land 
intended  to  be  conveyed,  but  the  purchaser  supposed  he  was  buy- 
ing the  whole  estate  intended  to  be  mortgaged,  he  was  protected  in 
his  claim  under  the  sale  to  the  whole.^ 

If  two  tracts  of  land  are  embraced  in  the  mortgage  when  only 
one  of  them  was  intended  to  be  mortgaged,  that  may  be  foreclosed 

1  Van  Rensselaer  v.  Wright,  121  N.  Y.  3  '\;v'ing  v.  Rionda,  125  N.  Y.  678,  25  N.  E. 

626.  Rep.  10G4;    Harrison    v.   Simons,   3    Edw. 

•^  Fifteen  years  after  judgment  of   fore-  Ch.  394  ;  Hays  v.  Thomae,  56  N.  Y.  521. 

closure,  this  not  having  been  executed  and  *  Johnson  ;;.  Donnell,  15    111.    97;  Lan- 

the  referee  appointed  having  died,  an  order  sing  v.  Albany  Ins.  Co.  Hopk.  102. 

was  made,  upon  application  by  the  phiintiff,  ^  gee  §  1581. 

notice  of  which  was  served  only  on  the  at-  ^  Roll  v.  Smalley,  6  N.  J.  Eq.  464. 
torneys  who  had  appeared  for  the  mort-  '  Shepherd  v.  Pepper,  133  U.  S.  626,  10 
gagor,  appointing  another  referee  to  sell.  Sup.  Ct.  Rep.  438;  Hefner  v.  Northwest- 
and  directing  a  .sale  in  the  city  in  which  the  ern  L.  Ins.  Co.  123  U.  S.  747,  754  ;  Wood- 
premises  were  .situated,  instead  of  in  another  worthy.  Blair,  112  U.  S.  8  ;  Hill  v.  National 
city,  as  directed  by  the  judgment.  It  was  Bank,  97  U.  S.  450,  453;  Jerome  v.  Mc- 
held  that  it  was  within  the  discretion  of  the  Carter,  94  U.  S.  734  ;  Ila^an  v.  W;dker. 
court  to  make  such  order,  and  that  the  mod-  14  Howi  29,  37  ;  Fiuley  v.  Bank,  1 1  Wheat, 
ification  of  the  judgment  was  not  material,  304. 

and  did  not  affect  injuriously  the  rights  of  «  Wilkerson  v.  Daniels,  1  Greene  (Iowa), 

any  one.     Wing  v.  Rionda,  125  N.  Y.  678,  179. 

25  N.  E.  Rep.  1064.  9  See  §§  97,  1464. 

VOL.  II.             32  49y 


§§  1610, 1611.]      FORECLOSURE   SALES   UNDER  DECREE   OF   COURT. 

alone  without  a  reformation  of  the  deed,  which  would  be  necessary 
in  case  of  a  misdescription  of  the  land.^ 

1610.  Subsequent  incumbrances.  —  When  a  junior  mortgagee 
whose  debt  is  due  is  a  party  to  a  suit  to  foreclose  a  prior  mortgage, 
the  court  may  decree  a  sale  of  so  much  of  the  property  as  will  be 
sufficient  to  satisfy  both  mortgages  and  all  intermediate  liens  ;  ^  and 
the  master  may  be  directed  to  ascertain  the  amount  of  such  liens 
previous  to  the  sale.  But  the  junior  mortgagee  cannot  be  paid 
until  the  master's  report  is  filed  and  the  surplus  money  brought  into 
court,  so  tliat  other  persons  may  have  an  opportunity  to  present 
their  claims.^  Ordinarily,  however,  the  amounts  of  subsequent 
incumbrances  will  not  be  determined  until  the  question  arises  in 
its  proper  course  upon  application  made  for  the  surplus.  The  mort- 
gagee cannot  be  compelled  to  suspend  proceedings  to  allow  subse- 
quent parties  to  contest  their  rights  as  between  themselves.  These 
must  be  settled  upon  a  reference  to  a  master  of  their  respective 
claims  to  the  surplus  money.* 

Though  the  judgment  does  not  provide  for  the  payment  of  sub- 
sequent incumbrances,  but  the  mortgagee  has  prepared  the  terms  of 
sale  which  provide  for  the  sale  of  the  entire  property  in  two  parcels, 
subject  to  a  prior  mortgage  held  by  himself,  and  there  are  also 
mortgages  subsequent  to  the  mortgage  under  foreclosure,  the  mort- 
gagee cannot  object  that  the  sale  of  the  entire  property  for  the  pa}'^- 
ment  of  all  the  incumbrances  was  irregular.'^ 

1611.  Questions  of  priority  of  right  to  the  proceeds  of  sale 
or  of  equities  as  to  the  order  of  sale  cannot  be  litigated  between 
the  defendants  before  judgment  is  entered  for  the  plaintiff  against 
whom  they  set  up  no  equities  or  defence.*^  But  questions  as  to  pri- 
ority of  claims  upon  different  portions  of  the  premises  should  be 
settled  by  the  court  before  a  sale  is  made,  rather  than  after  the 
sale,  as  the  parties  interested  are  then  able  to  act  intelligibly  as  to 
the  bidding  at  the  sale,  and  the  officer  selling  can  directly  after- 
wards go  on  with  the  distribution  of  the  proceeds.'     If,  however, 

1  Conklin  v.  Bowman,  11  Lid.  254;  *  Andrews  u.  O'Mahoney,  112  N.  Y.  567, 
Walker  v.  Sellers,  11  Ind.  376;  Miller  v,    20  N.  E.  Rep.  374. 

Kolb,  47  Ind.  220.  6  Smart  v.  Bement,  4  Abb.  Dec.  253. 

2  Andrews  i'.  O'Mahoney,  112  N.  Y.  ">  Snyder  v.  Stafford,  11  Paige,  71  ; 
567,20  N.  E.  Rep.  374;  Shepherd  v.  Pep-  Johnson  t'.  Badger  Mill  &  Mining  Co.  13 
per,  133  U.  S.  626,  10  Sup.  Ct.  Rep.  438.  Nev.  351  ;   Marling  v.  Robrecht,  13  W.  Va. 

3  Beekman    v.    Gibbs,     8     Paige,    511;  440. 

Barnes  v.  Stoughton,  10  Hun,  14.  In  Virginia  a  decree  of  sale  before  taking 

*  Miller  v.  Case,   Clarke  (N.    Y.),   395;  an  account  of  existing  liens  is  erroneous. 

Heath  v.  Blake,  28  S.  C.  406,  5  S.  E.  Rep.  Alexander  v.   Howe,  85   Va.  198,  7  S.  E. 

842.  Rep.  248. 
498 


MODE   AND    TERMS   OF   SALE.  [§  1612. 

these  questions  relate  merely  to  the  distribution  of  the  surplus,  and 
do  not  affect  the  order  of  sale,  they  are  properly  settled  upon  appli- 
cation for  the  surplus  after  sale.^ 

It  is  often  important  to  settle  the  rights  of  the  mortgagee  under 
the  mortgage  before  a  foreclosure  sale.  Thus  on  the  foreclosure  of 
a  mortgage  given  by  a  riparian  owner,  covering  the  shore,  and  in- 
cluding the  land  lying  under  water  in  front  of  the  upland,  which 
was  afterwards  filled  in  and  reclaimed  by  the  mortgagor,  before  the 
sale  is  ordered  the  rights  of  the  mortgagee  in  the  land  that  was  sub- 
merged at  the  time  the  mortgage  was  given  should  be  defined.^ 

1612.  The  notice  of  sale.  —  The  time  and  place  of  the  sale,  and 
the  terms  and  conditions  of  it,  may  be  prescribed  by  the  court,^ 
though  it  generally  leaves  all  these  details  to  the  master  or  other 
officer  charged  with  the  conduct  of  it ;  but  all  his  acts  in  relation 
to  it  are  subject  to  the  direction  of  the  court  at  all  times,  and  to  its 
sanction  when  the  sale  is  reported  for  confirmation.  It  is  the  duty 
of  the  officer,  thus  appointed,  to  conduct  all  the  proceedings  leading 
up  to  the  sale  and  the  sale  itself  in  a  fair,  impartial  manner,  so  that 
the  property  may  be  sold  for  the  best  price  possible.  It  is  the  duty 
of  the  court  to  see  that  the  advertisement  of  sale  is  published  in  a 
paper  that  will  give  it  general  publicity,  so  as  to  invite  competition, 
and  that  the  sale  in  other  respects  is  fairly  conducted.*  The  notice 
of  the  sale,  when  not  regulated  by  statute,  may  be  prescribed  by 
the  decree,  or  left  to  the  officer  intrusted  with  the  execution  of  the 
decree.  It  should  fix  the  time  of  sale,  and  the  hour  of  the  day  at 
which  the  sale  is  to  be  made  should  be  designated  ;  otherwise,  if  a 
reasonable  price  is  not  obtained,  for  the  property,  the  sale  will  be 
set  aside.^     It  is  proper  to  state  the  amount  of  the  decree,  but  such 

1  Schenck  v.  Conover,  13  N.  J.  Eq.  31  ;  its  axis,  twenty-four  liours.  2  Black.  Com. 
Union  Ins.  Co.  v.  Van  Rensselaer,  4  Paige,  141  and  notes.  The  sale,  therefore,  might, 
85.  consistently    with    the    notice,    have    been 

2  Point  Breeze  Ferry  Co.  v.  Bragaw,  47  made  immediately  before  midnight  of  that 
N.  J.  Eq.  298,  20  All.  Rep.  967.  day,  and  if  it  was  so  made  it  is  voidable. 

3  Sessions  v.  Peay,  23  Ark.  39.  The  object  of  a  public  sale  is,  by  fairness 
*  State  V.  Holliday,  35  Neb.  327,  53  N.  W.    and  competition,  to  evolve  the  full  value  of 

Rep.  142.  the    property   exposed,   and   produce    that 

5  Trustees  v.  Snell,  19  111.  156.     The  de-  value  in  the  form  of  money.     This  can,  as 

cree  directed  the  master  to  sell,  upon  four  a  general  rule,  only  be  done  by  making  the 

weeks'  notice  of  the  time,  terms,  and  place  sale  at  a  convenient  or  public  place,  acces- 

of   sale.     The  notice  stated    that  the  sale  sible  to   bidders,  and  during  the  ordinary 

would  be  made  on  the  2d  day  of  January,  business   hours   of    the   day.      The  notice 

"  The  proof  showed  that  the  property  was  should  have  stated  the  hour  of  sale,  or  that 

sold  at  an  enormous  sacrifice.    The  notice  as  the  sale  would  be   made   between   certain 

to  the  time  of  sale  was  insufficient.     The  named  hours  of  the  business  portion  of  the 

2d  day  of  January  included  the  astronomi-  day," 
cal  period  of  a  revolution  of , the  earth  upon 

499 


§  1612.]         FORECLOSURE   SALES   UNDER   DECREE   OF   COURT. 

statement  is  not  essential  to  the  validity  of  tlie  notice.  If  the  no- 
tice refers  to  the  decree  and  the  order  of  sale  this  is  sufficient.^ 

Where  a  decree  directed  notice  of  a  sale  to  be  published  in  a 
certain  paper,  which  was  after  the  decree  and  before  the  notice 
merged  in  another  paper  and  its  name  changed,  and  on  application 
to  the  judge  at  chambers  he  directed  the  sale  to  be  advertised  in 
the  paper  called  by  its  new  name,  the  publication  of  the  notice  in 
that  paper,  in  accordance  with  such  order,  was  held  valid  and  suflfi- 
cient.2  Even  a  change  of  place  of  publication  and  of  the  name  of 
the  paper  does  not  destroy  the  identit}^  of  the  paper,  so  long  as  it  is 
the  same  in  substance ;  and  the  notice  may  be  published  in  tlie 
paper  after  such  change  without  any  further  order  of  court,  and 
the  foreclosure  will  not  be  invalidated.^  If  the  manner  of  adver- 
tising is  fair,  objection  to  it  on  the  ground  that  the  property  did  not 
sell  for  so  much  as  the  mortgagor  valued  it  is  without  force.* 

The  notice  must  be  given  in  the  manner  provided  by  statute  or 
prescribed  by  the  order  of  court.  The  officer  making  the  sale  derives 
his  authority  from  the  decree,  and  he  must  pursue  it  substantially 
or  his  acts  will  be  set  aside.^ 

Generally  when  a  notice  is  required  to  be  published  once  in  each 
week  for  a  certain  number  of  weeks,  as,  for  instance,  three  weeks, 
it  is  not  necessary  that  the  time  between  the  first  and  last  publica- 
tions should  be  three  full  weeks,  but  only  that  one  publication 
should  be  made  on  some  day  of  eacli  week.^  Though  the  mortgage 
contains  a  power  of  sale  which  provides  for  thirty  days'  notice,  the 
court  may  decree  a  sale  upon  a  shorter  notice.^ 

The  notice  need  not  be  published  in  all  the  editions  of  the  paper 
issued  on  the  days  on  which  the  notice  was  published.^ 

The  notice  in  its  contents  should  be  drawn  in  fairness  both  to 
those  who  are  interested  in  the  property  and  to  those  who  may  pur- 
chase it,  and  should  neither  contain  uncalled-for  statements  calcu- 
lated to  depreciate  the  price  unduly,^  nor,  on  the  other  hand,  should 

1  Stratton  v.  Reisdorph,  35  Neb.  314,  53  Morehouse,  45  N.  Y.  368,  affirming  1  Lans. 
N.  W.  Rep.  136.  405;    Chamberlain    v.  Dempsey,  22   How. 

2  Sage  V.  Cent.   R.   R.  Co.  of  Iowa,  99  Pr.  356,  13   Abb.  Pr.  421  ;    Alexander  v. 
U.  S.  334,  13  West.  Jur.  218.  Messervey,  35  S.  C.  409,  14  S.  E.  Rep.  854. 

3  Perkins  v.  Keller,  43  Mich.  53,  4  N.  W.  "^  Johnson   v.  Meyer,  54  Ark.  437,  16  S. 
Rep.  559.  W.  Rep.  121. 

*  Barlow  v.  McClintock  (Ky.),  11  S.  W.  ^  Everson  v.  Johnson,  22  Hun,  115. 

Sep.  29.  9  Marsh  ;;.  Ridgway,  18  Abb.  Pr.  262. 

^  Augustine  v.  Doud,  1  Bradw.  588.  It  need  not  state  that  the  property  will 

6  Sheldon  v.  Wright,  5  N.  Y.  497 ;  01-  be  sold  in  parcels  when  a  sale  iu  parcels  has 

cott  V.  Robinson,  21   N.  Y.   150,  reversing  been  ordered.     Hoffman  y.  Burke,  21  Hun, 

20  Barb.  148,  78  Am.  Dec.  126;  Wood  v.  58. 
600 


MODE   AND   TERMS   OF    SALE.  [§  1613. 

it  contain  statements  which  might  unduly  enhance  the  price  or  mis- 
lead the  purchaser.^ 

A  personal  notice  of  the  sale  need  not  be  given  to  the  defendant. 
The  notice  of  sale  prescribed  by  statute  or  by  the  decree  is  suffi- 
cient.2  The  notice  required  by  the  decree  will  be  held  sufficient 
unless  it  is  clearly  unreasonable.^ 

1613.  Terms  of  sale.  —  The  officer  making  the  sale  should  pre- 
pare the  terms  of  sale,  a  copy  of  which,  with  a  description  of  the 
premises,  should  be  signed  by  the  purchaser,  though  it  is  held  that 
sales  made  under  decrees  of  court  are  not  within  the  statute  of 
frauds.*  The  auctioneer,  moreover,  being  the  agent  of  both  par- 
ties, his  memorandum  of  the  sale  is  binding  upon  the  purchaser ;  ^ 
but  his  memorandum  must  have  his  signature.^  This  contract, 
however,  is  not  regarded  as  complete  until  the  officer's  report  of  the 
sale  has  been  confirmed.  The  terms  of  sale,  according  to  the  usual 
practice,  provide  that  a  deposit  shall  be  paid  down  at  the  time  of 
sale.  The  amount  of  this  varies  according  to  the  circumstances  of 
the  case,  but  is  generally  about  ten  per  cent,  of  the  purchase-money. 
It  is  proper  to  keep  the  biddings  open  till  the  deposit  is  made,  and 
to  resume  the  sale  if  the  purchaser  refuses  or  neglects  to  make  it.*" 
Under  special  circumstances  the  sale  may  be  adjourned  to  another 
day,  and  resumed  if  the  deposit  is  not  made  in  the  mean  time.^ 

A  statute  which  provides  that  if  the  bidder  neglects  or  refuses  to 
make  immediate  payment  of  the  sum  bid,  the  officer  conducting  the 
sale  may  immediately,  or  upon  some  other  day  to  which  he  may  in  his 
discretion  adjourn  such  sale,  proceed  to  sell  such  land,  does  not  con- 
template that  each  bid,  whether  the  highest  or  not,  shall  be  accom- 
panied with  tlie  amount  thereof,  and  it  is  not  unusual  to  allow  time 
within  which  to  produce  the  amount  of  the  bid.  "  A  party  attend- 
ing such  a  sale  cannot  know  that  he  will  be  the  successful  bidder, 
and  therefore  should  not  be  expected  to  be  ready  at  the  time  of  the 
bid  with  the  money,  the  amount  of  which  cannot  be  ascertained 
until  the  bidding  is  concluded."  Therefore,  if,  upon  the  failure  of  a 
bidder  to  produce  the  money  upon  the  spot,  the  officer  sells  the  land 

1  Veeder  v.  Fonda,  3  Paige,  94.  Hegeman  v.  Johnson,  35  Barb.  200  ;    Na- 

2  Sanford  v.  Haines,  71  Mich.  116,38  N.  tional  Fire  Ins.  Co.  v.  Loomis,  11   Paige, 
W.  Rep.  777.  431. 

3  Crosby  v.  Kiest,  135  111.  458,  26  N.   E.  6  Bicknell  v.  Byrnes,  23  How.  Pr.  486. 
Rep.  599.  7  Lents  v.  Craig,  13  How.  Pr.  72,  2  Abb. 

*  Sugden's  Vendors,  148  ;  Attorney-Gen-  Pr.  294 ;  Sherwood  v.  Reade,  8  Paige,  633. 

eral  v.  Day,   1    Ves.  Sen.  221;    Fulton   v.  See  Converse  v.  Clay,  86  Mich.  375,  49  N. 

Moore,  25  Pa.  St.  468  ;    Halleck  v.  Guy,  9  W.  Rep.  473. 

Cal.  181,  70  Am.  Dec.  643.     Sec  §  1866.  8  Hoffman's  Referees,  236. 

''  McComb  V.  Wright,  4  Johns.  Ch.  659; 

501 


§  1614.]         FORECLOSURE   SALES   UNDER   DECREE    OF  COURT. 

to  another,  though  the  first  bidder  soon  after  such  sale  tender  the 
amount  of  his  bid,  a  resale  may  be  ordered.^ 

Where  a  purchaser  in  good  faith  left  the  place  of  sale  without 
complying  with  the  conditions  of  sale,  under  the  supposition  that 
he  had  until  the  next  day  to  do  this,  and  the  referee  then  and 
there  sold  the  premises  again  for  a  less  price,  the  court  ordered  a 
i-esale  upon  the  first  purchaser's  giving  security  to  bid  the  same 
amount  again/'' 

At  a  sale  by  a  mortgage  trustee  late  in  the  afternoon  of  Satur- 
day, the  terms  of  which  were  announced  to  be  cash,  the  holder  of 
the  mortgage  notes  bid  $10,070,  and  exhibited  his  certified  check 
upon  a  bank  for  $10,000,  and  the  property  was  struck  off  to  him, 
although  another  person  bid  $2,938  and  tendered  the  money  for 
his  bid.  On  Monday  the  highest  bidder  paid  over  the  money 
bid,  and  a  confirmation  of  the  sale  was  asked  for.  The  other 
bidder  contested  the  confirmation,  but  the  court  held  that  there  had 
been  a  substantial  compliance  with  the  terms  of  the  sale,  and  con- 
firmed it.^  Besides,  the  holder  of  the  mortgage  notes  may,  it  seems, 
comply  with  the  terms  of  the  sale  by  merely  indorsing  the  amount 
of  the  bid  on  the  notes.  The  formality  of  paying  over  the  money 
to  the  trustee  and  receiving  it  back  from  him  is  unnecessary.* 

1614.  Deposit  required.  —  The  trustee  or  commissioner  ap- 
pointed to  conduct  the  sale  may  properly  require  that  the  purchaser 
shall  deposit  or  pay  some  portion  of  the  price  in  cash  at  the  time 
of  sale  ;  and,  if  the  sum  be  not  so  large  as  reasonably  to  deter  per- 
sons from  bidding,  this  requirement  will  not  prevent  a  ratification 
of  the  sale.^  But  a  requirement  of  the  immediate  payment  in  cash 
of  the  whole  purchase-money  at  the  time  of  sale  is  an  oppressive 
and  unjust  act  towards  the  mortgagor,  and  a  court  of  equity  would 
set  the  sale  aside.^  If  the  mortgagee  without  leave  purchases  at 
such  a  sale,  he  will  be  considered  merely  a  mortgagee  in  possession 
of  a  redeemable  estate. 

It  is  proper  to  provide  in  a  decree  that,  in  case  any  other  person 

1  Converse  v.  Clay,  86  Mich.  375,  49  N.        3  Jacobs  v.  Turpin,  83  111.  424. 
W.  Rep.  473.     lu  such  case  it  was  not  im-        *  Jacobs  v.  Turpin,  83  111.  424. 

proper  to  impose,  as  a  condition  of  such  ^  Maryland    Land    &    Building    Soc.  v. 

resale,  that  the  first  bidder  should  deposit  Smith,  41  Md.  516.     The  deposit  required 

with   the   register   within  teu  days  a  sum  was  $300,  the  property  selling  for  $5,600. 

equal  to   the   amount  of    his   bid,   and   a  The  requirement  of  a  deposit  of  one  third  of 

bond  conditioned  that  the  premises  should  the  bid  is  not  unreasonable.    Tyer  v.  Charles- 

on  the  resale  bring  the  amount  of  the  prior  ton  Rice  Milling  Co.  32  S.  C.  598,  10  S.  E. 

sale,  together  with  all  the  costs  of  the  cause  Rep.  1067. 

and  of  the  resale.  **  Goldsmith  v.  Osborne,  1  Edw.  560. 

2  Lents  V.  Craig,  13  How.  Pr.  72. 

602 


MODE   AND   TERMS   OF   SALE.  [§  1615. 

than  the  mortgagee  becomes  purchaser  at  the  sale,  he  shall  be  re- 
quired to  pay  at  once,  in  cash,  a  part  of  the  bid  as  earnest  money ; 
and  no  objection  can  be  taken  that  the  same  requirement  is  not 
made  of  the  mortgagee.^ 

The  trustee  is  not  obliged  to  accept  the  highest  bidder  if  he  has 
reason  to  apprehend  that  he  has  not  the  ability  or  intention  to  com- 
ply with  the  terms  of  sale.  The  requirement  of  a  deposit  is  a  rea- 
sonable precaution  in  order  to  insure  the  completion  of  the  sale,  or 
to  cover  the  costs  and  expenses  of  it  should  it  fail  by  the  purchaser's 
default.^ 

1615.  Sale  on  credit.  —  Ordinarily,  except  with  the  consent  of 
both  parties,  the  sale  is  for  cash.  The  sheriff  has  no  authority  to 
sell  on  credit  in  the  absence  of  any  authority  given  in  the  deed.^ 
But  the  mortgagee  may  allow  time  to  the  [purchaser,  and,  whether 
this  arrangement  be  made  before  or  after  the  sale,  it  does  not  injure 
the  mortgagor,  and  is  no  ground  for  setting  aside  the  sale,  if  the 
credit  is  only  for  the  amount  due  to  him.*  But  he  cannot  allow 
credit  beyond  this,  except  with  the  consent  of  the  other  incum- 
brancers entitled  to  the  proceeds  of  sale.^  A  court  of  equity  may 
order  the  sale  to  be  made  on  credit  without  violating  the  obligation 
of  the  mortgage  contract,'^  unless  the  mortgage  deed  expressly  pro- 
vides that  the  sale  shall  be  for  cash,  in  which  case  the  requirement 
is  obligatory  and  cannot  be  disregarded  by  the  court.'^  If  a  referee, 
with  the  consent  of  the  parties  in  interest,  sells  the  premises  on 
time,  and  the  sale  is  reported  and  confirmed,  it  will  not  be  set  aside 
on  the  motion  of  a  creditor  of  the  deceased  mortgagor.^ 

Where,  upon  a  foreclosure  sale  by  order  of  court,  a  lien  is  re- 
served in  the  deed  to  secure  the  unpaid  instalments,  the  court  may, 
before  the  final  decree  of  distribution,  proceed  to  a  resale  of  the 
property  by  a  supplementary  proceeding  without  resorting  to  an 
original  bill.  If  innocent  purchasers  have  in  the  mean  time  ac- 
quired any  rights,  these  must  be  protected.^ 

When  the  terms  of  sale  are  cash,  the  purchaser  must  pay  cash, 

1  Sage  V.  Cent.  R.  R.  Co.  of  Iowa,  99  U.        ^  Stoney  v.  Shultz,  1  Hill  Cli.  465,  550, 
S.  334,  13  West.  Jur.  218.  27  Am.  Dec.  429;    Lowudes  v.  Chisholm, 

2  Gray  v.  Veirs,  33  Md.  18.  2  McCord  Ch.  455,  16  Am.  Dec.  667. 

'  Saner  y.  Steinbauer,  14  Wis.  70;  Sedg-  "^  Crenshaw  v.  Seigfried,  24  Gratt.  272. 

wick  V.  Fish,  Hopk.  594.  See,  to  the  contrary,  Mitchell  v.  JMcKinny, 

*  Malione    v.    Williams,    39    Ala.    202;  6  Ileisk.  83. 

Rhodes  v.  Dutcher,  6  Hun,  453.  8  Rhodes  v.  Dutcher,  6  Hun,  453. 

°  Chaff raix   v.   Packard,    26    La.    Ann.  ^  Stuart  i;.  Gay,  127  U.  S.  518,  8  Sup.  Ct. 

172.  Rep.  1279. 

503 


§  1616.]         FORECLOSURE   SALES   UNDER   DECREE   OF   COURT. 

and  cannot  compl}^  with  such  terms  by  a  tender  of  the  note  of  the 
person  entitled  to  the  proceeds  of  the  sale.^ 

II.  Sale  in  Parcels. 

1616.  A  sale  in  parcels  may  be  required  by  statute  or  by 
court. 2  In  reguhiting  foreclosure  sales  in  equit_y,  several  States 
have  by  statute  provided  that  the  property  shall  be  sold  in  parcels 
when  practicable,  but  that,  where  a  sale  of  the  whole  will  be  more 
beneficial  to  the  parties,  the  decree  shall  be  made  accordingly.  But 
courts  of  equity,  without  statutory  provisions,  apply  the  same  rules  ; 
these  provisions  in  fact  being  only  confirmatory  of  principles  by 
which  courts  of  equity  are  necessarily  governed  in  suits  of  foreclos- 
ure.^ When  the  decree  has  directed  the  sale  of  the  whole  premises 
for  the  payment  of  an  instalment  then  due,  the  court  may  in  its  dis- 
cretion afterwards  regulate  the  execution  of  the  decree  by  directing 
a  sale  of  a  part  only,  if  the  premises  are  divisible,  and  may,  upon 
the  maturity  of  other  instalments,  direct  further  sales.*  In  deter- 
mining whethei"  the  premises  shall  be  sold  together  or  in  parcels, 
the  court  should  direct  the  sale  to  be  made  in  such  manner  as  that 
the  parties  having  equities  subject  to  the  mortgage  shall  not  be 
prejudiced.^ 

It  may  sometimes  happen  that,  even  when  the  mortgage  describes 
the  property  in  separate  parcels,  and  the  amount  due  on  the  mort- 
gage may  be  raised  by  a  sale  of  a  portion  of  them,  it  may  be  neces- 
sary for  the  proper  protection  of  the  rights  of  subsequent  incum- 
brancers that  the  property  should  be  sold  together ;  ^  and  in  such 
case  the  court  will  so  order  although  the  statute  provides  that  the 
decree  shall  be  for  the  sale  of  such  part  as  may  be  sufficient  to  pay 
the  mortgage  debt  and  costs  ; "  and  even  after  a  sale  of  a  part,  the 
court,  still  having  jurisdiction  of  the  parties  and  the  subject,  may, 

1  Pursley  v.  Forth,  82  111.  327.  See  48  Wis.  208,  4  N.  W.  Rep.  124 ;  Sherwood 
Sage  V.  Cent.  R.  R.  Co.  of  Iowa,  99  U.  S.  v.  Landon,  57  Mich.  219,  23  N.  W.  Rep. 
334,  13  West.  Jur.  218.  778. 

2  As  to  sales  iu  parcels  under  powers  in  *  Am.  Life  &  Fire  Ins.  &  Trust  Co.  v. 
mortgages  and  trust  deeds,  see  chapter  xl.  Ryerson,  6  N.  .J.  Eq.  9. 

division  9.  5  J)q  Forest  v.  Farley,  62  N.  Y.  628  ;  Liv- 

3  Livingston  i;.  Mildrum,  19  N.  Y.  440,  ingston  w.  Mildruni,  19  N.  Y.  440;  Beekman 
443,  per  Seldeu,  J.;  Campbell  v.  Macomb,  v.  Gibbs,  8  Paige,  511;  Malcolm  v.  Allen, 
4  Johns.  Ch.  534.  See,  also,  Gregory  v.  49N.  Y.  448;  Blazey  y.  Delias,  74  III.  299  ; 
Purdue,  32  Ind.  453;  Magruder  v.  Eggle-  Boteler  v.  Brookes,  7  G.  &  J.  143. 

ston,  41  Miss.  248;  Am.  Life  &  Fire  Ins.  &  «  Gregory  v.  Campbell,  16  How.  Pr.  417  ; 

Trust  Co.  V.  Ryerson,  6  N.  J.  Eq.  9  ;   Wil-  Johnson  v.  Hambleton,  52  Md.  378. 

mer   v.  Atlanta  &  Richmond  Air  Line  R.  '  Dobbs  c.  Niebuhr,  3  N.  Y.  Supp.  413  ; 

R.  Co.  2  Woods,  447;  Schreiber  v.  Carey,  Livingston  v.  Mildrum,  19  N,  Y.  440. 
604 


SALE   IN   PARCELS.  [§  1617. 

for  tlie  protection  of  the  parties,  make  a  supplementary  order  for 
the  sale  of  the  remainder.^ 

If  an  order  to  sell  in  parcels  be  erroneous,  a  party  aggrieved 
should  apply  to  have  the  order  amended  ;  it  is  not  a  defence  to 
the  suit  which  can  be  taken  advantage  of  by  plea,  answer,  or  de- 
murrer.2 

A  statutory  provision  that,  in  sales  of  real  property  consisting  of 
several  lots  or  parcels,  the  lots  shall  be  sold  separately,  and  that  the 
debtor  may  direct  the  order  in  which  the  lots  shall  be  sold  does  not 
apply  where  each  parcel  is  first  offered  for  sale  separately,  and  no 
bids  are  received.  In  such  case  the  property  may  then  be  offered 
and  sold  as  a  whole,  and  the  sale  will  be  upheld  unless  other  reasons 
appear  for  setting  it  aside. ^ 

Even  a  sale  in  disregard  of  the  statute  is  not  absolutely  void.  It 
is  only  voidable,  and  will  ordinarily  be  set  aside  on  timely  applica- 
tion.* Where  the  mortgage  itself  provides  in  what  parcels  the 
property  shall  be  sold,  the  court  may  properly  follow  such  provision 
in  decreeing  the  sale.^ 

1617.  The  wishes  of  the  mortgagor  in  respect  to  the  mode 
and  order  of  sale  should  be  followed,  if  this  can  be  done  with 
safety  to  the  mortgagee,  and  without  injury  to  other  parties  in  in- 
terest. If  there  be  no  question  that  the  property  is  ample  to  satisfy 
the  debt,  whether  sold  together  or  in  parcels,  and  there  are  no  sub- 
sequent equities  to  be  considered,  the  mortgagee  in  such  case  has  no 
right  to  direct  whether  the  sale  shall  be  in  one  way  or  the  other.^ 
Under  some  circumstances,  the  property  being  of  sufficient  value,  it 
seems  that  a  mortgagee  would  be  required  to  sell  the  land  in  such  a 
manner  that  the  mortgagor  might  have  a  homestead  allotted  to  him 
in  the  residue.'^ 

If  the  mortgagor  does  not  ask  to  have  the  property  sold  in  par- 
cels, though  he  has  asked  for  and  had  adjournments  of  the  sale,  the 
sale  will  not  be  set  aside  because  all  the  premises  are  sold  as  one 
parcel.^     But  in  a  case  where  the  security  was  doubtful,   and  the 

1  Livingston  v.  Mildrum,  19  N.  Y.  440;     13  Pac.   Rep.   G87 ;  Mickle  v.  Maxfield,  42 
De  Forest  v.  Farley,  4  Hun,  640.  Mich.  .304,  3  N.  W.  Rep.  961. 

2  Horner  v.  Corning,  28  N.  J.  Eq.  254.  «  Walworth  v.  Farmers'  Loan   &   Trust 
8  Marston  v.  White,  91  Cal.  37,  27  Pac.    Co.   4    Saudf.    Ch.    51  ;    Brown    v.   Frost, 

Rep.  588.  Hoffm.  41 .     Aud  see  King  v.  Piatt,  37  N.  Y. 

*  San  Francisco  v.  Pixley,  21    Cal.  56;  155;  Caufmau  v.   Sayre,  2  B.    Mou.    202. 

Blood  V.  Liglit,  38  Cal.  649,  654  ;  Browne  i;.  And  see  Wolcott  v.  Schcnck,  23  How.  Pr. 

Ferrea,  51  Cal.  552  ;  Vigoureux  v.  Murphy,  385. 

54  Cal.  346.  7  YVeil  v.  UzzcU,  92  N.  C.  515. 

"*  Bank  v.  Charles,  86  Cal.  322,  24  Pac.  »  Guarantee  Tru.st  &  Safe  Deposit  Co. 

Rep.  1019;  Hopkins  v.  Wiard,  72  Cal.  259,  v.  Jenkins,  40  N.  J.  Eq.  451. 

505 


§  1618.]         FORECLOSURE   SALES   UNDER   DECREE   OF   COURT. 

property  consisted  of  one  parcel,  which,  after  the  making  of  the 
mortgage,  was  laid  out  in  streets  and  building  lots,  the  mortgagee 
objected  to  a  sale  in  parcels,  unless  security  should  be  given  him, 
because  that  portion  of  the  land  laid  out  for  streets  would  not  be 
included,  and  a  sale  in  one  parcel  was  held  proper.^  A  mortgagee 
who  holds  a  mortgage  upon  the  entire  interest  in  a  lot  of  land  can- 
not be  called  upon  to  allow  a  sale  of  an  undivided  interest,  even 
if  the  mortgage  be  made  by  joint  tenants  who  desire  a  separate  sale 
of  undivided  interests  to  enable  them  more  easily  to  adjust  their 
rights  as  between  themselves.^ 

1618.  Whether  the  property  shall  be  sold  entire  or  in  par- 
cels is  in  some  States  determined  by  the  court,  generally  through 
a  reference,  and  in  others  is  left  to  the  discretion  of  the  officer 
making  the  sale.^  When  determined  by  the  court,  the  order  of 
sale  sometimes  directs  the  form  and  manner  of  the  division,  and 
designates  the  part  first  to  be  sold,*  or  more  properly  to  be  offered 
for  sale.^  Objections  to  the  manner  of  dividing  the  land  should 
be  called  to  the  attention  of  the  court  immediately  and  before  the 
sale.^  An  order  once  made  will  not  be  disturbed  without  good 
cause. '^  When  by  statute  or  rule  of  court  the  officer  determines 
upon  these  matters,  he  raiust  sell  in  parcels  in  just  the  same  cases 
in  which  the  statute  or  the  general  principles  of  equity  would 
make  this  course  obligatory  upon  the  court ;  and  if  he  makes  it 
otherwise,  the    court   will    set    it    aside.^      A    statutory    provision 

1  Griswold  v.  Fowler,  24  Barb.  135  ;  Lane  In  Alabama,  when  the  lands  are  susceptible 

y.  Conger,  10  Hun,  1,  and  cases  cited.     And  of   division,  and  there  are  infant   defend- 

see  Ellsworth  v.  Lockwood,  9  Hun,  548,  42  ants  whose  titles  will  be  affected,  the  court 

N.  Y.  89.  should  decree  a  sale  only  after  ascertaining 

'^  Frost    V.   Bevins,   3    Sandf.   Ch.    188;  whether  or  not  the  interest  of  the  infants 

Schoenewald  v.  Dieden,  8  Bradw.  389.  will  probably  be  promoted  by  a  sale  in  par- 

*  See  statutory  regulations  of  the  differ-  eels.     Walker  v.  Hallett,  1  Ala.  379  ;  Fry 
ent  States.  v.  Ins.  Co.  15  Ala.  810.     But  if  the  defend- 

*  Brugh  I'.   Darst,  16  lud.  79;  Bard   v.  ants  are   adults,  the  court  may,  unless   a 
Steele,  3  How.  Pr.  110.  sale  in  parcels  is  asked  for,  decree  a  sale 

5  Cissna  v.  Haines,  18  Ind.496.     This  or-  without  first  ascertaining  whether  the  sale 

der  may  be  based  on  the  facts  shown  at  the  will  be  for  the  interest  of  such  defendants. 

hearing,  or  upon  the  consent  of  the  parties,  Ticknor  v.  Leavens,  2  Ala.  149;  Gladden  v. 

although  there  be  no  foundation  for  it  in  the  Mortgage  Co.  80  Ala.  270 ;  Homer  v.  Schon- 

pleadings.     Cord  v.  Southwell,  15  Wis.  211.  feld,  84  Ala.  313,  4  So.  Rep.  105.     lu  Ken- 

•j  Miller  V.  Kendrick  (N.  J.),  15  Atl.  Rep.  tucky   the   court,  before   ordering   a   sale, 

259.  must  be  satisfied  whether  or  not  the  prop- 

"  Vaughn  v.  Nims,  36  Mich.  297.  erty  can  be  divided   without  impairing  its 

8  Waldo  W.Williams,  3  111.470;  Whiter,  value.     Civ.  Code,  §  694.     The  court  may 

Watts,  18  Iowa,  74  ;  Benton  v.  Wood,  17  satisfy  itself  in  any  way  as  to  the  divisibil- 

Ind.  260;  Meriwether  v.  Craig,  118   Ind.  ity   of  the  property.     Sears  v.   Henry,  13 

301,  20  N.  E.  Rep.  769.     See,  also.  Lay  v.  Bush,  413,  415;  McFarland  v.  Garnett,  8 

Gibbons,  14  Iowa,  377,  81  Am.  Dec.  487.  S.  W.  Rep.  17. 
506 


SALE   IN   PARCELS.  [§  1618. 

directing  the  sale  of  only  so  much  as  will  pay  the  amount  due 
with  costs,  if  a  division  can  be  made,  is  peremptory  upon  the 
court,!  leaving  only  the  determination  of  the  question  whether 
such  division  can  be  made  without  injury  to  the  whole.  A  sale, 
however,  made  without  regard  to  this  provision,  is  only  voidable, 
and  not  void.^ 

Without  any  statutory  requirement,  a  court  of  equity  will  order 
a  sale  in  parcels  when  the  property  consists  of  distinct  tracts,  to- 
gether worth  much  more  than  the  debt  secured.^  The  mere  fact 
that  the  premises  are  a  meagre  security  and  are  going  to  ruin  and 
decay  does  not  justify  a  sale  of  the  entire  premises  for  a  debt  only 
partly  due.*  A  decree  for  such  a  sale  should  rest  upon  an  allega- 
tion and  finding  that  the  premises  cannot  be  divided  without  mani- 
fest injury  to  all  parties  concerned.^  A  sale  of  the  property  as  an 
entirety  is  proper  where  it  appears  that  a  division  of  it  into  parcels 
would  lessen  its  selling  value.^ 

If  the  decree  of  sale  describes  a  quarter  section  as  a  single  tract, 
it  is  not  the  duty  of  the  master  or  other  officer  to  divide  the  land 
into  parcels  in  making  the  sale.  If  the  decree  describes  several 
distinct  parcels,  then  it  is  the  duty  of  the  officer  to  sell  each  parcel 
separately.' 

The  court  having  ordered  that  the  property  shall  be  sold  either 
in  one  lot  or  in  separate  parcels,  the  parties  to  the  suit  cannot  by 
agreement  disregard  the  order,  and  make  a  valid  sale  in  any  other 
manner.^  A  subsequent  party  in  interest  has  a  right  to  insist  upon 
a  strict  compliance  with  the  decree  and  the  statute  in  the  manner 
of  the  sale.^ 

The  fact  that  several  parcels  mortgaged  together  had  previously 
been  held,  used,  and  conveyed  together  as  one  farm,  is  a  sufficient 
reason  for  selling  the  whole  in  one  parcel ;  ^"^  and,  on  the  other  hand, 
the  fact  that  separate  parcels  have  previously  been  held  and  used 
by  themselves,  and  are  evidently  capable  of  being  so  used  to  advan- 

1  Bank  of  Ogdensburg  U.Arnold,  5  Paige,  ^  Central   Trust   Co.  v.   U.   S.   Rolling 

38.  Stock  Co.  56  Fed.  Rep.  5. 

^  3  Wait's  Prac.  376;  Bozarth    v.  Lar-  '  Patton  r.  Smith,  113  111.499. 

gent,  128  111.  95,  21  N.  E.  Rep.  218;  Meri-  8  Babcock  w.  Perry,  8  Wis.  277. 

wether   v.    Craig,  118  Ind.  301,  20  N  .  E.  »  Farmers' &  Millers' Bank  v.  Luther,  14 

Kep.  769.  Wis.  9G. 

3  Ryerson  v.  Boorman,  7  N.  J.  Eq.  167,  i'*  Anderson    v.  Austin,    34  Barb.    319; 

640.  Whitbeck  v.  Rowe,  25  How.  Pr.  403  ;  John- 

*  Blazey  v.  Delius,  74  III.  299.  son  v.   Hambleton,  52  Md.  378 ;    Yale   v. 

5  Blazey  v.  IJelius,  74  111.  299.  Stevenson,  58  Mich.  537, 25  N.  W.  Rop.  488. 

507 


§  1619.]    FORECLOSURE  SALES  UNDER  DECREE  OF  COURT. 

tage  in  the  future,  affords  a  presumption  that  they  should  be  sold 
separately. 1 

Under  a  mortgage  of  real  property,  together  with  machinei-y  and 
fixtures  thereon,  a  provision  of  the  mortgage,  that  in  ease  of  fore- 
closure the  personal  property  shall  be  sold  with  the  realty,  will  be 
followed  in  the  decree.^  Generally  land  and  buildings  used  as  a 
mill,  with  the  machinery  therein  and  the  water  power  connected 
with  the  same,  constitute  a  unit,  and,  under  a  mortgage  covering 
such  property,  the  whole  should  be  sold  together  without  any  spe- 
cial provision  therefor,  because  the  parts  could  not  be  sold  separately 
without  a  large  depreciation.^ 

1619.  Sale  on  subsequent  default.  — The  statutes  of  several 
States  provide  that,  when  a  portion  only  of  the  mortgage  debt  is 
due,  a  portion  of  the  mortgaged  premises  may  be  sold  in  satisfac- 
tion of  such  part,  and  that  the  judgment  may  stand  as  security 
for  any  subsequent  default ;  and  that  upon  the  happening  of  such 
default  the  court  shall  order  a  second  sale  to  satisfy  such  default; 
and  that  the  same  proceeding  may  be  had  as  often  as  a  default  shall 
happen.  The  subsequent  sale  is  made  by  order  of  court  upon  the 
plaintiff's  petition,  which  should  state  all  the  essential  facts  upon 
which  the  order  is  to  be  founded.  Notice  of  the  application  must 
be  given  to  all  persons  interested  who  have  appeared  in  the  action. 
The  order  for  sale  is  issued  as  in  other  cases,  and  the  sale  is  made 
in  the  same  manner.* 

If  part  of  the  debt  be  not  due,  the  court  should  decree  a  sale  of 
so  much  of  the  premises  as  will  be  sufficient  to  pay  the  amount  due, 
and  a  further  order  of  sale  should  be  obtained  on  the  maturing  of 
the  unpaid  instalment  of  the  debt,  if  the  premises  can  be  divided; 
and  before  rendering  a  judgment  for  a  sale  the  court  should  deter- 
mine whether  the  premises  can  be  sold  in  parcels  without  injui'y.^ 
If  the  premises  cannot  be  divided,  the  deci*ee  should  provide  for 
the  payment  of  the  money  to  the  mortgagee  in  extinction  of  the 
debt,  unless  some  safe  course  more  beneficial  to  the  mortgagor  ex- 
ists.^ Generally,  a  sale  of  the  whole  estate,  when  there  is  no  order 
for  a  sale  in  parcels  for  an  instalment    due    before  the   principal 

1  AVhitbeck  v.  Rowe,  25  How.  Pr.  403 ;  ^  Griffin  v.  Reis,  68  Ind.  9  ;  Hannah  v. 
Hubhard  v.  Jairell,  23  Md.  66.  Dorrell,  73  Ind.  465. 

2  Wood  V.  Whelen,  93  HI.  153.  «  §  1577  ;  Walker  v.  Hallett,  1  Ala.  379  ; 

3  Hill  V.  National  Bank,  97  U.  S.  450 ;  Levert  v.  Redwood,  9  Port.  79  ;  Knapp 
Barlow  v.  McClintock  (Ky.),  11  S.  W.Rep.  i-.  Burnham,  11  Paige,  330  ;  Firestone  v. 
29.  Klick,  67  Ind.  309. 

*  Bank  of  Napa  v.  Godfrey,  77Cal.612, 
20  Pac.  Rep.  142. 

608 


ORDER   OF   SALE.  [§  1620. 

amount,  exhausts  the  remedy  of  the  creditor,  and  passes  a  clear  title 
to  the  purchaser.! 

III.    Order  of  Sale. 

1620.  When  the  mortgagor  has  made  successive  sales  of 
distinct  parcels  of  the  mortgaged  hind  to  different  persons  by- 
warranty  deeds,  it  is  generally  regarded  as  only  equitable  that  the 
mortgagee,  when  he  afterwards  proceeds  to  foreclose  his  mortgage, 
should  be  required  to  sell  in  the  first  place  such  part,  if  any,  as  the 
mortgagor  still  retains,  and  then  the  parts  that  have  been  sold  in 
the  same  subdivisions,  but  beginning  with  the  parcel  last  sold  by 
the  mortgagor.2  This  rule  rests  upon  the  reason  that,  where  the 
mortgagor  sells  a  part  of  the  mortgaged  premises  without  reference 
to  the  incumbrance,  it  is  right  between  him  and  the  purchaser  that 
the  part  still  held  by  the  mortgagor  shall  first  be  applied  to  the 
payment  of  the  debt; ^  and  this  part  is  regarded  as  equitably 
charged  with  the  payment  of  the  debt ;  therefore,  when  he  after- 
wards sells  another  portion  of  that  remaining  in  his  possession,  the 
second  purchaser  simply  steps  into  the  shoes  of  the  mortgagor  as 
regards  this  land,  and  takes  it  charged  with  the  payment  of  the 
mortgage  debt  as  between  him  and  the  purchaser  of  the  first  lot ; 
but  still,  as  between  the  second  purchaser  and  the  mortgagor,  it  is 
equitable  that  the  land  still  held  by  the  latter  should  pay  the  in- 
cumbrance. In  this  manner  the  equities  apply  to  successive  pur- 
chasers. This  order  of  equities  proceeds  upon  the  supposition  that 
each  subsequent  purchaser  has  actual  or  constructive  notice,  by  the 
record  of  the  deed  or  otherwise,  of  each  prior  conveyance  by  the 
mortgagor  of  portions  of  the  premises.* 

1  Poweshiek  Co.  v.  Dennison,  36  Iowa,  Tomlinson,  79  Iowa,  383,  44  N.  W.  Rep. 
244,  14  Am.  Hep.  521,  and  cases  there  684;  Schrack  v.  Shriner,  100  Pa.  St.  45; 
cited;  Escher  t".  Simmons,  54  Iowa,  269,  6  Mevey's  Appeal,  4  Pa.  St.  80;  Hoil^^don  v. 
N.  W.  Rep.  274;  Clayton  v.  Ellis,  50  Iowa,  Naglee,  5  Watts  &  S.  217  ;  Blackledge  v. 
590;  Todd  y.  Davey,  60  Iowa,  532,  15  N.  Nelson,  2  Dev.  Eq.  65;  Mahagan  w.  Mead, 
W.  Rep.  421.  63  N.  H.  570;  Hall  v.  Morgan,  79    Mo.  47  ; 

2  See  Contribution  to  redeem,  §§  1080-  Andreas  v.  Hubbard,  50  Conn.  351  ;  Geor- 
1092;  Gantz  v.  Toles,  40  Mich.  725;  gia  Pacific  R.  R.  Co.  v.  Walker,  61  Miss. 
Meecham  v.  Steele,  23  111.  135 ;  Hahn  v.  481  ;  Millsaps  v.  Bond,  64  Miss.  453,  1  So. 
Behrman,  73  Ind.   120;    Foster   v.   Union  Rep.  506. 

Bank,  34  N,  J.  Eq.  48.  This  equity  is  recognized  even    in  Ken- 

3  Hoy  ?J.  Bramhall,  19  N.J.  Eq.  563,97  tucky,  where  it  is  held  that  tliere  is  no 
Ara.Dec.  687  ;  Gaskill  y.  Sine,  13  N.  J.  Eq.  equity  of  one  purchaser  over  another. 
400,78  Am.  Dec.  105;  Messervcy  v.  Barelli,  Blight  v.  Banks,  6  T.  B.  Mon.  192,  197,  17 
2  Hill  Ch.  567  ;  Lock  v.  Fulford,  52  111.  Am.  Dec.  136;  Dickey  v.  Thompson,  8  B. 
166;  Boone  v.  Clark,  129  111.  466,  21  N.  E.  Mon.  312,  314. 

Rep.  850;  Massie  v.  Wilson,  16  Iowa,  390;        *  %  743.     For  cases  giving  the  reason  for 
Bates  u.  Ruddick,  2  Iowa,  423 ;  Mickley  v.    the  rule,  sec  Weatherby  i;.  Slack,  16  N.J. 

609 


§  1621.]         FORECLOSURE   SALES   UNDER   DECREE   OF   COURT. 


This  rale  is  applicable  where  a  part  of  the  residue  of  land  not 
sold  is  situated  in  another  State. ^ 

1621.  Rule  of  inverse  order.  —  These  equitable  considerations 
have  led  to  the  adoption  of  the  rule  that  tlie  mortgagee  in  such 
case  shall  sell  the  mortgaged  land  in  the  inverse  order  of  its  aliena- 
tion by  the  mortgagor ;  and  it  will  be  seen  by  the  cases  cited  that 
this  rule  has  been  generally  jidopted.^ 

Mich.  134  ;  Cooper  v.  Bigly,  13  Mich.  463  ; 
Mason  v.  Payne,  Walk.  459  ;  McKinney  v. 
Miller,  19  Mich.  142  ;  Ireland  v.  Woolman, 
15  Mich.  253  ;  Briggs  v.  Kaufman,  2  Brown 
N.  P.  IGO;  Gilbert  v.  Haire,  43  Mich.  283, 
5  N.  W.  Kep.  321;  McVeigh  o.  Sherwood, 
47  Mich.  545,  11  N.  W.  Rep.  379;  Case 
Threshing  Machine  Co.  v.  Mitchell,  74 
Mich.  679,  42  N.  W.  .Kep.  151.  Minne- 
sota: Johnson  v.  Williams,  4  Minn.  260, 
268.  Missouri :  Crosby  v.  Farmers'  Bank, 
107  Mo.  436,  17  S.  W.  Rep.  1004.  Ne- 
braska :  Lausman  v.  Drahos,  8  Neb.  457. 
New  Hampshire :  Brown  v.  Simons,  44  N. 
H.  475  ;  Mahagan  v.  Mead,  63  N.  H.  570  ; 
Gage  V.  McGregor,  61  N.  H.  47.  New  Jer- 
sey :  Hill  V.  McCarter,  27  N.  J.  Eq.  41  ; 
Mount  V.  Potts,  23  N.  J.  Eq.  188  ;  Shannon 
V.  Marselis,  1  N.J.  Eq.  413  ;  Britton  v.  Up- 
dike, 3  N.  J.  Eq.  125  ;  Wikoff  v.  Davis,  4  N. 
J.  Eq.  224 ;  Winters?;.  Henderson,  6  N.  J. 
Eq.  31  ;  Gaskill  v.  Sine,  13  N.  J.  Eq.  400, 
78  Am.  Dec.  105  ;  Weatherby  v.  Slack,  16 
N.  J.  Eq.  491 ;  Keene  v.  Munn,  16  N.  J.  Eq. 
398  ;  Mutual  Life  Ins.  Co.  v.  Boughrum,  24 
N.  J.  Eq.  44 ;  Dawes  v.  Cammus,  32  N.  J. 
Eq.  456  ;  Hiles  v.  Coult,  30  N.  J.  Eq.  40 ; 
Acquackanouk  Water  Co.  v.  Manhattan  L. 
Ins.  Co.  36  N.  J.  Eq.  586  ;  Powles  v.  Grif- 
fith, 37  N.  J.  Eq.  384.  New  York  :  Clowes 
V.  Dickenson,  5  Johns.  Ch.  235,  240  ;  James 
V.  Hubbard,  1  Paige,  228,  234 ;  Jenkins  v. 
Freyer,  4  Paige,  53;  Guion  v.  Knapp,  6 
Paige,  35,  29  Am.  Dec.  741 ;  Patty  v. 
Pease,  8  Paige,  277,  35  Am.  Dec.  683 ; 
Skeel  V.  Spraker,  8^Paige,  182;  Kellogg  v. 
Rand,  11  Paige,  59;  Ferguson  v.  Kimball, 
3  Barb.  Ch.  616 ;  Weaver  v.  Toogood,  1 
Barb.  238;  Howard  Ins.  Co.  v.  HaLey,  4 
Saudf.  565;  Rathbone  v.  Clark,  9  Paige, 
648  ;  Stuyvesant  v.  Hail,  2  Barb.  Ch.  151  ; 
Farmers'  Loan  &  Trust  Co.  v.  Maltby,  8 
Paige,  361  ;  La  Farge  Fire  Ins.  Co.  v.  Bell, 
22  Barb.  54 ;  Ex  parte  Merrian,  4  Den, 
254  ;  McDonald  v.  Whitney,  9  N.  Y.  Week- 
ly Dig.  529  ;  Crafts  v.  Aspinwall,  2  N.  Y. 


Eq.  491  ;  Wikoff  v.  Davis,  4  N.  J.  Eq.  224 ; 
Ingalls  V.  Morgan,  10  N.  Y.  178;  Lock  v. 
Fulford,52  111.  16G;  Matteson  v.  Thomas, 
41  111.  110;  Iglehart  v.  Crane,  42  111.  261  ; 
Tompkins  y.  Wiltberger,  56  111.  385  ;  Stanly 
V.  Stocks,  1  Dcv.  Eq.  313. 

1  Welling  V.  Ryerson,  94  N.  Y.  98. 

2  This  rule  is  adopted  in, — 
United   States :    National  Savings  Bank 

V.  Creswell,  100  U.  S.  630,  8  Am.  L.  Rec. 
673.     Alabama :  Mobile,  &c.  Co.  v.  Huder, 

35  Ala.  713.  Colorado:  Fassett  v.  Mulock, 
5  Colo.  466;  Stephens  v.  Clay,  17  Colo. 
489,  30  Pac.  Rep.  43,  45.  Connecticut: 
Sanford  v.  Hill,  46  Conn.  42,  .53,  per  Par- 
dee, J. ;  Andreas  v.  Hubbard,  50  Conn. 
351.  Florida:  Ritch  v.  Eichelberger,  13 
Fla.  169.  Georgia:  Cumming  v.  Gum- 
ming, 3  Ga.  460.  Illinois :  Niles  v.  Har- 
mon, 80  111.  396;  Hosmer  v.  Campbell,  98 
111.  572;  Tompkins  v.  Wiltberger,  56  111. 
385  ;  Iglehart  v.  Crane,  42  111.  261 ;  Sumner 
V.  Waugh,  56  111.  531  ;  Layman  v.  Willard, 
7  Bradw.  183;  Alexander  v.  Welch,  10  111. 
App.  181  ;  [Dodds  v.  Snyder,  44  111.  53  ; 
Lock  V.  Fulford,  52  111.  166  ;  Matteson  v. 
Thomas,  41   111.  110;  Marsball  v.  Moore, 

36  111.  321  ;  Moore  v.  Shurtleff,  128  111.  370, 
21  N.  E.  Rep.  775;  Boone  v.  Clark,  129111. 
466,  21  N.  E.  Rep.  850,  853.  Indiana: 
Hahn  v.  Behrman,  73  Ind.  120;  Alsop  v. 
Hutchings,  25  Ind.  347  ;  McCullum  y.  Tur- 
pie,  32  Ind.  146  ;  Day  v.  Patterson,  18  Ind, 
114;  Aiken  v.  Bruen,  21  Ind.  137;  Cissna 
V.  Haines,  18  Ind.  496;  Williams  v.  Perry, 
20  Ind.  437,  83  Am.  Dec.  327;  McShirley 
t>.  Birt,  44  Ind.  382;  Houston  v.  Houston, 
67  Ind.  276.  Maine :  Sheperd  v.  Adams, 
32  Me.  63;  Hohlen  v.  Pike,  24  Me.  427. 
Massachusetts  :  George  v.  Wood,  9  Allen, 
80,  85  Am.  Dec.  741  ;  George  v.  Kent,  7 
Allen,  16 ;  Kilborn  v.  Ilobbins,  8  Allen,  466; 
Chase  v.  Woodbury,  6  Cush.  143;  Allen  u. 
Clark,  17  Pick.  47.  See  Parkman  v.  Welch, 
19  Pick.  231;  Beard  v.  Fitzgerald,  105 
Mass.  134.    Michigan:  Sager  v.  Tupper,  35 

510 


ORDER   OF   SALE. 


[§  1621. 


For  the  reason  that  this  rule,  whether  established  by  statute  or 
by  decisions  of  state  courts,  is  a  rule  of  property,  the  courts  of  the 
United  States  sitting  in  any  State  in  which  this  rule  is  established 
will  follow  it.i 

This  rule  and  the  question  of  its  adoption  has  been  very  frequently 
before  the  American  courts;  and  the  principle  of  the  rule  has  also 
been  frequently  stated  by  the  English  and  Irish  courts.  "  If  after- 
wards the  mortgagor,"  says  Lord  Plunket,  "  sells  a  portion  of  his 
equity  of  redemption  for  valuable  or  good  consideration,  the  entire 
residue  undisposed  of  by  him  is  applicable,  in  the  first  instance,  to 
the  discharge  of  the  mortgage,  and  in  ease  of  the  bond  fide  pur- 
chaser ;  and  it  is  contrary  to  any  principle  of  justice  to  say  that  a 
person  afterward  purchasing  from  that  mortgagor  shall  be  in  a 
better  situation  than  the  mortgagor  himself  in  respect  to  any  of  his 
rights."  2    In  the  same  case,  when  it  was  previously  before  the  court. 


289  ;  Howard  Ins.  Co.  v.  Halsey,  8  N.  Y. 
271,  59  Am.  Dec.  478  ;  Keudall  v.  Niebuhr, 
58  How.  Pr.  156  ;  Hopkins  v.  WoUey,  81 
N.  Y.  77;  Bernhardt  v.  Lymburner,  85  N. 
Y.  172;  Van  Slyke  v.  Van  Loan,  26  Hun, 
344;  Thomas  v.  Moravia  Machine  Co.  43 
Hun,  487.  Ohio:  Commercial  Bank  r.  W. 
R.  Bank,  II  Ohio,  444,  38  Am.  Dec.  739; 
Cary  v.  Folsom,  14  Ohio,  365;  Green  v. 
Ramage,  18  Ohio,  428;  51  Am.  Dec.  458  ; 
Sternberger  v.  Hanna,  42  Ohio  St.  305. 
Pennsylvania  :  The  doctrine  of  contribution 
pro  rata  adopted  in  the  earlier  decisions  in 
Pennsylvania.  Nailer  v.  Stanley,  10  S.  & 
R.  450,  13  Am.  Dec.  691  ;  Presbyterian 
Corporation  v.  Wallace,  3  Rawle,  109 ;  Don- 
ley V.  Hays,  17  S.  &  R.  400,  has  been  over- 
ruled in  later  cases  of  Cowden's  Estate,  1 
Pa.  St.  267  ;  Carpenter  v.  Koons,  20  Pa. 
St.  222;  Milligan's  App.  104  Pa.  St.  503. 
South  Carolina :  Lynch  v.  Hancock,  14  S.  C. 
66 ;  Norton  v.  Lewis,  3  S.  C.  25 ;  Stoney  v. 
Shultz,  1  Hill,  465,  27  Am.  Dec.  429  ;  Meng 
V.  Houser,  13  Rich.  Eq.  210;  Watson  v.  Neal, 
35  S.  C.  595,  16  S.  E.  Rep.  833.  Texas: 
Miller  v.  Rogers,  49  Tex.  398 ;  Rippetoe  v. 
Dwyer,  49  Tex.  498.  Vermont:  Root  v. 
Collins,  34  Vt.  173;  Lyman  v.  Lyman,  32 
Vt.  79  ;  Deavitt  v.  Judcvine,  60  Vt.  695, 17 
Atl.  Rep.  410.  Virginia:  Henkle  v.  AU- 
stadt,  4  Gratt.  284;  Jones  v.  Myrick,  8 
Gratt.  179  ;  Conrad  v.  Harrison,  3  Leigh, 
5'J2.  West  Virginia  :  Jones  v.  Phelan,  15 
W.  Va.  194;  Gracey  v.  Meyers,  15  W.  Va. 
194.     Wisconsin:  Worth  v.  Hill,  14  Wis. 


559  ;  State  v.  Titus,  17  Wis.  241  ;  Ogden  v. 
Glidden,  9  Wis.  46  ;  Aiken  v.  Milwaukee  & 
St.  PaulR.  R.  Co.  37  Wis.  469. 

1  Orvis  V.  Powell,  98  U.  S.  176,  8  Cent. 
L.  J.  74. 

2  In  Hartley  v.  O'Flaherty,  Lloyd  & 
Goold  Cases  temp.  Plunket,  208,  216.  See, 
also,  for  illustrations  of  this  rule,  Hamilton 
V.  Royse,  2  Sch.  &  Lef.  315,  326;  Averall 
V.  Wade,  Lloyd  &  Goold,  temp.  Sugden, 
252  ;  Harbert's  Case,  3  Coke,  11. 

Mr.  Justice  Story  questioned  the  correct- 
ness of  the  doctrine  that,  in  case  of  succes- 
sive sales  of  property  subject  to  mortgage, 
the  parcel  last  sold  is  liable  for  the  debt  in 
exoneration  of  that  sold  next  before  it ;  or, 
in  other  words,  that  the  parcels  are  to  be 
charged  in  the  reverse  order  of  the  trans- 
fers :  the  parcels  last  sold  being  first  charged 
to  their  full  value,  and  so  backwards  until 
the  debt  is  fully  paid.  He  says :  "  But 
there  seems  great  reason  to  doubt  whether 
this  last  position  is  maintainable  upon  prin- 
ciple ;  for  as  between  the  subsequent  pur- 
chasers or  incumbrancers,  each  trusting  to 
his  own  security  upon  the  separate  estate 
mortgaged  to  him,  it  is  difficult  to  perceive 
that  either  has,  in  consequence  thereof,  any 
superiority  of  right  or  equity  over  the 
other;  on  the  contrary,  there  seems  strong 
ground  to  contend  that  the  original  incum- 
brance or  lien  ought  to  be  borne  ratably 
between  them,  according  to  the  relative 
value  of  the  estates."  2  Story's  Eq.  Juris. 
§  1233. 

511 


§  1622.]        FORECLOSURE   SALES   UNDER   DECREE   OF   COURT. 

Lord  Chancellor  Hart  said  that,  between  tlie  mortgagor  "  and  the 
persons  purchasing  from  him,  the  contributory  fund  must  be  so  mar- 
shalled as  to  make  his  remaining  property  first  applicable ;  and  if 
that  is  insufficient,  I  think  the  portion  of  the  last  purchaser  must 
be  applicable  before  that  of  any  prior  purchaser."  ^ 

The  rule  applies  where  the  mortgagor  has  conveyed  the  premises 
in  different  parcels,  and  the  grantees  of  these  parcels  again  convey 
them  in  parcels,  the  grantees  of  the  latter  parcels  being  liable 
under  this  rule  for  the  share  of  the  mortgage  chargeable  upon  their 
grantor's  share  of  the  premises,  in  the  inverse  order  of  conveyance 
to  them.^  It  applies  where  a  grantee  subject  to  incumbrances  re- 
conveys  a  part  of  the  premises  to  his  grantor  without  mentioning 
the  incumbrances.^ 

The  rule  is  one  of  equity,  and  will  not  be  applied  in  any  case 
where  its  application  would  work  injustice;^  it  is  not  applied  where 
the  mortgage  does  not  rest  alike  upon  the  whole  of  tiie  land,'^  nor 
does  it  apply  to  a  sale  of  the  equity  of  redemption  upon  execution 
for  a  debt  other  than  that  secured  by  the  mortgage.*^ 

Any  one  having  a  substantial  and  valuable  interest  in  an}'  of  the 
parcels  may  demand  the  enforcement  of  this  equity.  The  wife  of 
a  grantee  of  one  of  the  parcels  has  such  an  interest  by  virtue  of 
her  inchoate  right  of  dower." 

1622.  This  rule  is  generally  held  to  apply  to  subsequent 
mortgages  of  tiie  equity  of  redemption  as  well  as  to  absolute  con- 
veyances of  it.^  In  New  Jersey,  however,  it  is  held  that,  as  between 
the  holders  of  mortgages  of  different  and  distinct  parts  of  the  in- 
cumbered land,  each  is  bound  to  bear  his  proportion  according  to 
the  value  of  the  parts  ;  and  that  the  rule  does  not  apply,  as  between 
them.^     The  entire  premises  may  be   decreed  to  be  sold,  and  the 

He  claimed  the  autliority  of  the  English  ^  Evansville  Gas  Liglit  Co.  v.  State,  73 

cases  iu  support  of  this  view.     The  ques-  Ind.  219,  38  Am.  Rep.  129. 

tion  was  considered  in  Barnes  v.  Racster,  ^  Eriinger  v.  Boiil,  7  Bradw.  40. 

1  Y.  &  C.  C.  C.  401,  where  the  Vice- Chan-  ">  Crosby  v.  Farmers'  Banl^,  107  Mo.  436, 

cellor,  Sir  L.  Shad  well,  in    a   case   where  17  S.  W.  Jiep.  1004. 

there  were   several    successive    mortgages,  ^  Dodds  v.  Snyder,  44  111.  53 ;  Boone  v. 

instead  of   throwing  the  whole  burden  of  Clark,  129  111.  466,  21  N.  E.  Rep.  8.50,  per 

the  prior  incumbrances  upon  the  land  con-  Shope,  C.  J.;    Steere   v.   Childs,  15    Hun. 

veyed  to   the   last   mortgagee,   made  it   a  511;    Milligan's    App.    104    Pa.    St.    503; 

ratable  charge  on  the  whole  estate.  Thomas  v.  Moravia  Machine  Co.  43  Hun, 

1  Beatty,  61,  79.  487;    Bernhardt  v.  Lymburner,  85  N.  Y. 

2  Hiles  V.  Coult,  30  N.  J.  Eq.  40,  18  Am.  172  ;  Burchell  v.  Osborne,  5  N.  Y.  Supp. 
L.  Reg.  203.  404,  6  N.  Y.  Supp.  863. 

3  Hopkins  v.  Wolley,  81  N.  Y.  77.  ^  Pancoast  v.  Duval,  26  N.  J.  Eq.  445. 
*  Hill   V.   McCarter,   27    N.   J.  Eq.  41  ; 

Bernhardt  v.  Lymburner,  85  N.  Y.  172. 

512 


ORDER   OF   SALE.  [§§  1623,  1624. 

% 
proceeds  applied  to  the  payment  of  the  mortgages  and  other  incum- 
brances, according  to  their   priority,   although  sufficient   to  satisfy 
the  first  mortgage  be  obtained  by  a  sale  of  part  of  tlie  premises.^ 

When,  however,  a  portion  of  the  mortgaged  premises  has  been 
mortgaged  again,  and  subsequently  the  balance  has  been  conveyed 
absokitely,  inasmuch  as  the  mortgage  is  only  a  qualified  alienation, 
and  the  mortgagor  still  has  an  interest  in  the  property,  that  part  is 
first  sold  ;  and  if  there  is  any  surplus  beyond  the  amount  required 
to  satisfy  tl)e  second  mortgage,  that  is,  if  the  equity  of  redemption 
is  of  anv  value,  that  is  applied  in  payment  of  the  first  mortgage 
befure  resorting  to  the  portion  of  the  premises  conveyed  absolutely.^ 
But  after  this,  if  the  property  is  not  of  sufficient  value  to  pay  both 
mortgages,  as  between  the  second  mortgagee  and  the  subsequent 
purchaser,  it  would  seem  that  in  the  distribution  of  proceeds  the 
former  should  be  entitled  to  any  surplus  remaining  after  the  pay- 
ment of  the  first  mortgage. 

If  the  mortgagor  alienates  a  portion  of  the  mortgaged  piemises 
and  afterwards  mortgages  another  portion,  the  second  mortgagee 
cannot  claim  that  the  part  alienated  before  the  giving  of  his  mort- 
gage shall  be  first  sold  ;  but  the  rule  of  inverse  order  of  alienation 
will  apply  against  him.'^ 

1623.  When  portions  of  the  property  have  been  sold,  under 
judgment,  those  portions  stand  in  the  order  of  sale  in  a  foreclosure 
suit  as  of  the  times  when  the  judgments  respectively  become  liens,, 
and  not  as  of  the  times  when  the  conveyances  under  such  sales  were 
executed  by  the  sheriff.*  In  Pennsylvania,  however,  it  is  held  that 
the  rule  dues  not  apply  at  all  to  sales  under  judgments  ;  the  pur- 
chaser at  such  sales  having  no  claim  upon  the  mortgagor,  or  anyone 
else,  to  pay  off  the  mortgage  for  their  relief.^ 

1624.  The  record  of  a  subsequent  deed  is  not,  however,  notice 
to  the  prior  mortgagee.  He  is  not  required  to  search  the  records 
from  time  to  time  to  see  whether  other  incumbrances  have  been  put 
upon  it.°     A  distinct    and  actual  notice  is   necessary  to  affect  the 

1  Ely  V.  rerrine,  2  N.  J.  Eq.  396 ;  Vogel  Dec.  478 ;  Kendall  v.  Niobulir,  58  How.  Pr. 
V.  Brown,  1-JO  II.  3;38,  11  N.  E.  Hop.  327.        1.56;  Shannon  v.  Marselis,  1  N.  J.  Eq.  413; 

2  Kelloj:g  y.  Rand,  11  Paige,  59.  Birnie  v.  Main,  29  Ark.  591;  James  v. 
8  Srtger  y.  Tapper,  35  Mich.  134.  Brown,  11  Mich.  25  ;  Carter  t>.  Neal,  24 
*  Woods  !;.  Spaliliny:,  45  Barb.  G02.  Ga.  346,  71  Am.  Dec.  136;  Taylor  i;. 
6  Carpi  uter  r.  Koons,  20  Pa.  St.  222.  Maris,  5  Rawle,  51  ;  Kitch  v.  Eiehelberger, 
«  §723;    Gre^wold   v.   Marshan,    2   Ch.  13  Fla.  169;    Brown  v.  Simons,  44  N.  H. 

Cas.    170;     Chie.sehrou-h    v.    Millard,    1  475  ;  Johnson  y.  Bell,  58  N.  H.  395  ;   Gage 

Johns.  Cli.  409,7  Am.  Dec.  494;    Stuyve-  r.  McGregor,  61    N.  II.  47;  Lyman  u.  Ly- 

sant  V.  Hone.  1   Sandf.  Ch.  419;    Howard  man,  32  Vt.  79,  76  Am.  Dec.  151  ;  Cliase  v. 

Ins.   Co.  V.   Ila'sey,  8  N.  Y.  271,59  Am.  Woodbury,  6  Cush.  143;  Hosmer  v.  Camp- 
VOL.  II.                    33  51-3 


§  1625.]         FORECLOSURE  SALES   UNDER  DECREE   OF   COURT. 

rights  of  the  mortgagee  in  this  respect,  and  obhge  him  to  foreclose 
with  reference  to  the  subsequent  order  of  alienation.  The  record  is 
not  even  constructive  notice  to  him.  Only  subsequent  purchasers 
and  incumbrancers  are  within  the  purview  of  the  registr}^  laws. 
A  person  interested  in  the  equity  wishing  to  protect  himself  must 
bring  home  to  the  mortgagee  actual  notice  of  his  equities.^  If  he 
is  not  a  party  to  the  foreclosure  suit,  and  has  no  opportunity  to 
present  his  claims  there,  he  may  file  a  bill  against  the  mortgagee 
and  the  other  subsequent  purchasers,  and  obtain  a  stay  of  the  sale 
until  the  respective  equities  can  be  adjusted.  After  a  sale  it  is  too 
late  to  assert  his  rights.^ 

In  like  manner  when  there  has  been  a  partition  of  land,  of  which 
an  undivided  half  was  mortgaged,  that  part  of  the  land  set  off  to 
the  mortgagor  should  be  first  sold ;  and  if  the  officer,  having  been 
offered  the  whole  amount  of  the  debt  for  that  part,  proceeds  to  sell 
an  undivided  half  of  the  whole,  the  sale  will  be  set  aside.^  And  so, 
if  a  portion  of  the  mortgaged  land  has  been  sold  to  pay  the  mort- 
gagor's debts  after  his  decease,  the  residue  of  the  premises  remain- 
ing in  his  heirs  must  be  first  resorted  to  for  the  satisfaction  of  the 
mortgage.* 

1625.  But  this  rule  does  not  apply  in  cases  where  the  parties 
have  by  agreement  in  their  deed  charged  the  mortgage  upon  the 
land  in  a  different  manner ;  as  where  by  the  terms  of  sale  of  a  part 
of  the  premises  the  mortgage  is  made  a  common  charge  upon  the 
whole  premises,  or  the  part  conveyed  is  subjected  to  a  proportion- 
.ate  part  of  the  incumbrance ;  ^  or  it  is  provided  that  a  certain  parcel 

bell,  98  111.  572 ;  Iglehart  v.  Craue,  42  III.  hall,  19  N.  J.  Eq.  563,  97  Am.  Dec.  687  ; 

261 ;  Boone  v.  Clark,  129  111.  466,  21  N.  E.  Blair  v.  Ward,  10  N.  J.  Eq.  119 ;  King  v. 

Rep.  850  ;  Meier  v.  Meier,  105  Mo.  411,  16  McVickar,  3  Saudf.  Ch.  192  ;  Cheesebrougli 

S.  W.  Eep.  223.  v.   Millard,   1   Johns.  Ch.  409,  414,  7    Am. 

In   James   v.    Brown,    11    Mich.  25,  the  Dec.  494  ;  Gouverneur  v.  Lynch,  2  Paige, 

court  say  :  "  It  is  the  duty  of  a  subsequent  300. 

.mortgagee,  if  he  intends  to  claim  any  rights  ^  Lausman  v.  Drahos,  8  Neb.  457  ;    De 

througli  the  first   mortgage,   or  that  may  Haven  r.  Musselman,  123  Ind.  62,  24  N.  E. 

affect  the  rights  of  the  mortgagee  under  it,  Kcp   171. 

to  give  the    holder   thereof    notice   of    his  ^  Quaw  v.  Lameraux,  36  Wis.  626. 

■  mortgage,  that  the  first  mortgagee  may  act  *  Moore  v.  Chandler,  59  111.  466. 

with  his  own  uuderstandingly.     If  he  does  ^  Mutual  Life  Ins.  Co.  v.  Boughrum,  24 

not,  and  the  first  mortgagee  does  with  his  N.J.  Eq.  44;  Pancoast  v.  Duval,  26  N.  J. 

mortgage  what  it  was  lawful  for  him  to  do  Eq.  445;  Hoy  v.  Bramliall,  19  N.  J.   Eq. 

before    the   second    mortgage    was    given,  563.      In    this    case  the    conveyance*  was 

without  knowledge  of  its  existence,  the  in-  made,   "subject,  however,  to  the  payment 

jury  is  the  result  of  the  second  mortgagee's  by  said  grantee  of  all  existing  liens  upon 

negligence  in  not  giving  notice."  said  premises."     The  effect  of  this  was  to 

1  Matteson  i\  Thomas,  41  111    110;  Laus-  subject  the  lands  conveyed  to  the  payment 

man  I'.  Drahos,  8  Neb.  457;  Hoy  v.  Brani-  of  a  proportionate  part  of    the  mortgage- 

614 


ORDER   OF   SALE.  [§  1625. 

of  the  mortgaged  premises  shall  first  be  charged  with  the  payment 
of  the  mortgage  debt.^  In  such  cases,  if  there  be  no  specific  agree- 
ment as  to  the  proportion  which  each  part  is  to  bear,  contribution 
must  be  made  according  to  the  relative  value  of  each  part.^  A  por- 
tion of  a  parcel  of  land  subject  to  a  mortgage  was  sold  to  one  who 
agreed  to  pay  the  entire  mortgage,  and  afterwards  the  remaining  por- 
tion was  sold  to  another.  The  mortgagee,  with  notice  of  such  con- 
veyances, sold  the  land  as  one  parcel  in  foreclosure.  The  second 
purchaser  made  no  request  that  the  land  be  sold  in  parcels,  but 
several  months  after  the  foreclosure  sale  brought  a  bill  to  have  the 
sale  set  aside  as  to  the  portion  of  the  land  conveyed  to  him,  on  the 
ground  that  the  other  portion  should  have  been  sold  first.  It  was 
held  that  the  bill  could  not  be  maintained.^ 

When  a  purchaser  of  a  part  of  the  premises  has  agreed  to  as- 
sume the  whole  or  a  part  of  the  mortgage  debt  as  a  part  of  the 
consideration  he  pays  for  the  land,  and  subsequently  sells  it  to  an- 
other, this  grantee  having  notice  of  such  agreement  stands  in  no 
better  position  than  the  first  purchaser  as  regards  any  equity  against 
the  mortgagor.*  And  so  where  the  whole  of  a  tract  of  land  was 
subject  to  a  mortgage  and  a  portion  of  it  was  conveyed,  and  after- 
wards the  remainder  was  conveyed  to  the  same  purchaser  subject 
to  the  payment  of  the  mortgage,  and  the  purchaser  subsequently 
made  mortgages  of  the  different  parcels,  upon  a  foreclosure  of  the 
first-named  mortgage  the  assumption  of  this  mortgage  in  the  deed 
of  the  second  parcel  was  regarded  as  operating  between  the  parties 
as  an  agreement  that  the  land  therein  named  should  be  the  pri- 
mary fund  for  the  payment  of  the  debt,  and  that  the  mortgage 
should  be  enforced  upon  that  land  in  the  first  instance,  and  upon 
the  lot  first  conveyed  in  the  case  of  a  deficiency ;  and  therefore  it 
was  held  that  the  order  of  sale  was  not  determined  by  the  order  of 
alienation  by  the  purchaser.^ 

But  the  assumption  of  the  mortgage  as  it  appears  in  a  deed  of 

The  court  say:  "It  may  be  that  the  Ian-  Appleby,  22  Hun,  72;  Zabriskie  v.  Salter, 

guage  is  not  sufficient  to  create  a  covenant  80  N.  Y.  555. 

on  wiiich  a  strictly  personal  liability  may  ^  Mickle  v.  Maxfield,  42  Mich.  304,  3  N. 

be  based;    but  it  clearly  makes  the   part  W.  Rep- 961. 

conveyed  subject  to  its  proper  proportion  2  Moore  y.  Shurtleff,  128111.370, 21  N.  K. 

of  the  incumbrances,  so    as  to  relieve,   to  Rep.  775,  quoting  text. 

that  extent,  that  part  retained  by  the  mort-  ^  Long  v.  Kaiser,  81  Mich.  518,  43  N.  W. 

gagor,  and  that  therefore  both  parts  must  Rep.  19. 

contribute  according  to  their  relative  values."  *  Engle  v.  Haines,  5  N.  J.  Eq.   186,  4.3 

To   same   effect  see  Briiicoc  v.  Power,  47  Am.   Ucc.  624;    Ross  v.    Haines,  5  N.J. 

111.  447;    Halsey  v.   Reed,  9  Paige,   446;  Eq.  632;  Crenshaw  i;.  Thackston,  14  S.  C. 

Torrey  v.  Bank  of  Orleans,  9   Paige,  '649;  437. 

Warren  v.  Boynton,  2  Barb.   13;  Coles  v.  ^  Steere  w.  Childs,  15  Hun,  511. 

615 


§  1626.]        FORECLOSURE   SALES   UNDER   DECREE   OF   COURT. 

a  part  of  the  mortgaged  premises  is  not  always  conclusive  as  to  a 
purchaser  of  another  part  as  regards  the  equities  of  the  parties. 
The  grantor  may,  by  a  subsequent  agreement  with  a  purchaser  of 
a  part  of  the  premises  who  has  assumed  the  whole  mortgage,  re- 
lease such  purchaser  wholly  or  in  part  from  his  obligation  to  pay 
the  mortgage  ;  and  a  subsequent  grantee  of  another  part  of  the 
premises  will  succeed  only  to  the  equities  of  his  grantor  as  they 
exist  at  the  time  of  the  conveyance  to  him,  whether  he  has  no- 
tice of  such  equities  or  not.  Thus  the  owner  of  a  tract  of  land, 
having  conveyed  a  portion  of  it  supposed  to  contain  eight  acres, 
with  a  covenant  that  in  case  of  a  deficiency  he  would  make  com- 
pensation therefor  at  a  certain  price,  the  grantee  assuming  and 
agreeing  to  pay  the  mortgage  upon  the  whole  tract,  subsequently, 
upon  ascertaining  that  there  was  a  deficiency  in  quantity  of  the 
land  conveyed,  agreed  to  save  the  grantee  harmless  from  a  part 
of  the  mortgage  debt  amounting  to  the  value  of  the  deficient  land. 
The  grantor,  after  making  that  agreement,  conveyed  the  residue  of 
the  land  to  another  person  by  a  deed  covenanting  that  such  land 
was  free  of  all  incumbrances.  In  an  action  to  foreclose  the  mort- 
gage it  was  held  that  the  grantee  of  such  residue  succeeded  only  to 
the  equities  of  the  grantor  existing  at  the  time  of  the  conveyance; 
that  the  residue  of  the  land  was  chargeable  with  the  portion  of  the 
mortgage  against  which  the  grantor  had  agreed  to  protect  the  pur- 
chaser of  the  portion  of  the  land  first  conveyed  ;  that  the  fact  that 
the  covenant  of  such  purchaser  to  pay  the  whole  mortgage  was  con- 
tained in  a  deed  on  record  was  immaterial ;  and  that  it  was  also 
immaterial  that  the  agreement  of  the  grantor  to  reassume  the 
amount  of  the  rebate  for  the  deficiency  in  the  quantity  of  land 
was  not  of  record,  and  that  the  grantee  of  the  residue  had  no  no- 
tice of  it.i 

1626.  Contribution  according  to  value.  —  The  rule  that  the 
sale  shall  take  place  in  the  inverse  order  of  alienation  is  rejected 
in  the  States  of  lowa^  and  Kentucky.^     Instead  of  this  they  have 

1  Judson  V.  Dada,  79  N.  Y.  373.  decisions  in  other  States.    It  was  considered 

2  Bates  V.  Ruddick,  2  Iowa,  423, 65  Am.  more  equitable  that  the  buideu  should  be 
Dec.  774;  Massie  v.  Wilson,  16  Iowa,  390;  equalized  according  to  the  value  of  the  dif- 
Barney  v.  Myers,  28  Iowa,  472  ;  Huff  v.  ferent  parcels  than  that  the  whole  should 
Farwell,  67  Iowa,  298,  25  N.  W.  Rep.  252.  be  thrown  upon  the  last  purchaser  of  the 

3  Poston  V.  Eubauk,  3  J.  J.  Marsh,  43 ;  last  lot.  See,  also,  Hunt  v.  McCounell,  1 
Campbell  v.  Johnston,  4  Dana,  177,  182;  T.  B.  Mon.219. 

Dickey  v.  Thompson,  8  B.  Mon.  312.     In  As  to  North  Carolina,  see  Stanly  y.  Stocks, 

the  latter  case    this   rule   is    discussed    at  1  Dev.  Eq.  318,  where    the    question   was 

length,  and  the  earlier  decisions  approved  raised, 
and  afifirmed,  though  contrary  to  the  later 

516 


ORDER   OF   SALE.  [§§  1627,  1628. 

adopted  the  rule  tliat  the  several  owners  shall  contribute  according 
to  the  value  of  their  portions  of  the  property.  If  the  purchasers 
have  made  improvements  upon  their  lots,  the  enhanced  value  result- 
ing from  the  improvements  is  not  included  in  the  valuation  of  the 
property  under  this  rule.  In  these  States,  therefore,  the  mortgaged 
lands  may  be  sold  under  the  decree  of  foreclosure,  without  reference 
to  the  mortgagee's  knowledge  that  they  have  been  sold  in  parcels 
at  different  times  to  different  persons. 

1627.  Valuation  to  be  made  as  of  what  time.  —  When  con- 
tribution is  to  be  made  under  the  rule  adopted  by  these  States, 
that  the  proportion  is  to  be  determined  by  the  relative  value  of  the 
different  parcels,  whether  the  valuation  should  be  taken  at  the  date 
of  the  mortgage,  at  the  time  of  foreclosure,  or  at  the  date  of  the 
several  purchases,  is  not  perhaps  very  material,  as  the  fluctuation 
of  price  would  generally  be  about  equal  for  the  different  parcels.^ 
The  practice  in  different  courts  has  not  been  uniform.  Nor,  in- 
deed, has  the  practice  of  the  same  court  always  been  the  same  in 
this  regard. 

When  the  mortgaged  premises  have  been  conveyed  in  distinct 
parcels,  and  the  subsequent  grantees  or  mortgagees  of  the  parts 
are  bound  to  contribute  in  proportion  to  the  value  of  their  parts, 
they  are  entitled  to  have  the  premises  sold  in  parcels,  provided  it 
can  be  done  without  prejudice  to  the  rights  of  the  mortgagee.^ 

1628.  As  a  general  rule,  if  a  mortgagee  has  other  security 
for  his  demand,  and  another  creditor  has  a  lien  upon  one  of  the 
funds  onl}^  the  former  must  resort  in  the  first  place  to  that  secu- 
rity upon  which  no  one  other  than  his  debtor  has  any  claim  ;  ^ 
and  he  must  exercise  good  faith  and    reasonable  diligence  in  the 

1  Valuation  at  the  date  of  the  mortgage  mortgages  both  to  one  person,  and  after- 
was  adopted  in  Stevens  v.  Cooper,  1  Johns,  wards  only  one  estate  to  a  second  mortga- 
Ch.  425,  7  Am.  Dec.  499 ;  Hill  v.  Howell,  gee,  who  had  no  notice  of  the  first ;  the 
36  N.  J.  Eq.  2.5 ;  Johnson  v.  Williams,  4  court  in  order  to  relieve  the  second  mortga- 
Minn.  260;  Parkman  y.  Welch,  19  Pick,  gee,  have  directed  the  first  to  take  his  sat- 
Mass.  231  ;  Morrison  v.  Beckwith,  4  Mon.  isfaction  out  of  that  estate  only  which  is 
72,76,  16  Am.  Dec.  136;  but  in  Burk  v.  not  in  mortgage  to  the  second  mortgagee,  if 
Chrisman,  3  B.  Mon.  50,  the  same  court  that  is  suflacient  to  satisfy  the  first  mort- 
sustained  a  valuation  at  the  date  of  the  gage,  in  order  to  make  room  for  the  second 
several  purchases  ;  and  in  Dickey  y.  Thonip-  mortgagee."  Also,  Wright  v.  Nutt,  1  H. 
son,  8  B.  Mon.  312,  seemed  to  approve  of  Bl.  136,  150;  McLean  v.  Lafayette  Bank, 
a  valuation  at  the  time  of  foreclosure.  4  McLean, 430.     Iowa:  Swift  v.  Conboy,  12 

2  Pancoast  y.  Duval,  26  N.  J.  Eq.  445;  Iowa,  444.  Pennsylvania:  Ramsey's  Appeal, 
Stelle  y.  Andrews,  19  N.  J.  Eq.  409.  2  Watts,  228,   27  Am.    Dec.    301.      South 

8  §728;  Story's  Eq.  Juris.  §§  559,560.  Carolina  :  Fowler  y.  Barksdale,  Harper's  Eq. 

This  principle  is  illustrated  by  Lord  Hard-  164.  Arkansas:  Terry  y.  Kosell,  32  Ark.  478. 

wicke  in  Laiioy  v.  Athol,  2  Atk.  444,  446  :  New  Jersey:   Warwick  v.  Ely,  29  N.  J.  Eq. 

"  Suppose  a  person  who  has  two  real  estates  82  ;  Dawes  v.  Cammus,  32  N.  J.  Eq.  456  ; 

517 


§  1628.]  FORECLOSURE   SALES   UNDER   DECREE   OF   COURT. 

enforcement  of  his  riglits.^  This  rule  is  subject  to  the  qualifica- 
tion that  it  shall  not  be  applied  where  it  would  work  any  injustice 
to  the  prior  creditor,^  or  to  any  other  person  interested  in  the  secu- 
rities, as,  for  instance,  an  intervening  lien-holder,  having  a  supe- 
rior equity  ;  ^  or  where  the  mortgagee's  right  to  satisfy  his  claim 
out  of  both  funds  would  be  in  any  way  impaired  ;  or  where  there 
is  any  doubt  of  the  sufficiency  of  the  fund  upon  which  the  junior 
creditor  has  no  claim  ;  or  where  the  prior  creditor  is  not  willing  to 
run  the  risk  of  obtaining  satisfaction  out  of  that  fund  ;  or  where 
that  fund  is  of  a  dubious  character,  or  is  one  which  may  involve  him 
in  litigation  to  realize.*  "  But  it  is  the  ordinary  case,"  says  Lord 
Eldon,  "to  say,  a  person  having  two  funds  shall  not  by  his  election 
disappoint  the  party  having  only  one  fund  ;  and  equit}^  to  satisfy 
both,  will  throw  him  who  has  two  funds  upon  that  which  can  be 
affected  by  him  only,  to  the  intent  that  the  only  fund  to  which  the 
other  has  access  may  remain  clear  to  him."  ^ 

In  accordance  with  these  restrictions  of  the  rule,  whei-e  a  cred- 
itor was  secured  by  a  mortgage  of  land  and  slaves,  and  the  land  was 
afterwards  sold  by  the  mortgagor,  and  one  of  the  slaves  was  sold 
by  the  sheriff  under  executions  issued  part  before  and  part  after  the 
mortgage,  though  the  sum  received  by  the  sheriff  was  sufficient  to 
satisfy  the  senior  executions  and  the  balance  of  the  mortgage  debt, 
the  mortgagee  was  [not  compelled  to  resort  to  this  fund,  because  he 
might  thereby  incur  the  expense  and  risk  of  litigation,  but  was  al- 
lowed to  foreclose  the  mortgage  upon  the  land  to  satisfy  his  demand.^ 
The  mortgagee  might  lose  the  very  benefit  sought  by  having  a 
double  security,  if  he  were  compelled  to  incur  the  risk  of  delay  or 
loss  by  being  referred  for  his  payment  to  security  he  deemed  the 
more  uncertain.  The  subsequent  purchaser  of  the  mortgaged  prop- 
erty takes  it  with  full  knowledge  of  the  incumbrance,  and  it  is  more 
equitable  that  he  should  be  obliged  to  pay  the  mortgage  debt  and 
be  subrogated  to  the  other  security  of  the  mortgagee  than  that  the 
latter  should  be  prejudiced. 

It  is  not  necessary  that  it  should  appear  that  a  second  mortgagee 

Bishop  Bailey  B.  &  L.   Asso.  v.  Kennedy  Hurd  v.  Eaton,    28    IlL    122;    Iglehart   v. 

(N.  J.),  12  Atl.  Rep,  141 ;  Sherron  v.  Acton  Crane,  42  111.  261. 

(N  J.  Eq.),  18  Atl.  Rep.  978.    Illinois  :  Igle-  ^  yi^ter  v.  Breese,  36  Mich.  77. 

hart  V.  Crane,  42  111.  261 ;  Boone  v.  Clark,  ^  Leib  v.  Stribling,  51  Md.  285. 

129  111.  466,  21  N.  E.  Rep.  850.     Vermont:  «  Boone  v.  Clark,  129  111.  466,  21  N.  E. 

Blair  v.  White,  61  Vt.  110,17  Atl.  -Rep.  49.  Rep.  850. 

Wisconsin:  Scott  y.  Webster,  44  Wis.  185,  ^  Aldrich   v.   Cooper,   8  Ves.   382,   395. 

6  Reporter,  287.     Alabama :  Bryant  v.  Ste-  And  see  Averall  v.  Wade,  Lloyd  &  Goold 

phens,  58  Ala.  636.  temp.  Sugden,  252,  and  notes. 

1  Shields   v.    Kiinbrough,    64    Ala.  504;  ^  Walker  y.  Covar,  2  S.  C.  16. 
618 


ORDER   OF   SALE.  [§§  1629,  1630. 

knew  at  the  time  he  took  his  mortgage  that  the  prior  mortgagee 
had  collateral  security,  or  that  the  second  mortgagee  took  his  mort- 
gage relying  on  the  equitable  right  to  compel  the  marshalling  of 
the  assets. 

1629.  So  also  when  two  persons  have  mortgages  upon  the 
same  piece  of  property,  which  is  insufficient  to  satisfy  both,  and 
one  of  them  has  a  lien  for  his  debt  upon  other  property,  equity 
requires  that  he  shall  exhaust  the  latter  before  resorting  to  the 
mortgaged  property. ^  In  like  manner  when  two  persons,  to  se- 
cure the  debt  of  one  of  them,  have  jointly  mortgaged  three  parcels 
of  land,  one  of  which  they  own  jointly,  while  each  of  them  owns 
one  of  the  others  individually,  the  decree  should  order  the  sale,  first, 
of  the  portion  of  the  mortgagor  equitably  bound  to  pay  the  debt, 
and  next  of  the  joint  parcel.^ 

But  where  a  principal  debtor  and  his  surety  have  both  mort- 
gaged their  lands  to  secure  a  debt,  the  lands  of  the  principal 
debtor  are  to  be  first  sold,  and  those  of  the  surety  only  for  the 
deficiency.^ 

Where  one  of  two  tenants  in  common  has  paid  his  share  of  a 
joint  mortgage,  and  the  other  has  mortgaged  his  portion  again, 
the  former  is  entitled  to  a  discharge  under  a  statute  authorizing 
joint  debtors  to  make  separate  settlements  with  their  creditors;  and 
the  second  mortgagee  cannot  have  the  first  mortgage  satisfied  from 
the  joint  property,  or  postponed  to  his  own,  on  the  ground  that  the 
release  is  in  fraud  of  his  rights.* 

1630.  If  one  holds  two  mortgages  on  different  parcels  of  land, 
or  one  mortgage  on  two  parcels  of  land,  to  secure  the  same  debt, 
in  the  absence  of  any  equities  in  subsequent  purchasers  he  may 
foreclose   either  one   without   the   other ;  ^    but  if  there  are  subse- 

1  Russell  V.  Howard,  2  McLean,  489  ;  taking  title  to  such  property  of  the  surety  by 
Andreas  v.  Hubbard,  50  Conn.  351  ;  Trow-  inheritance  would  Iiave  this  right.  It  has 
bridge  v.  Harlcston,  Walker  (Mich.),  185;  been  held  repeatedly  by  this  court  that  a 
Sibley  v.  Baker,  2.3  Mich.  312;  Sternberg  wife,  joining  in  a  mortgage  with  her  hus- 
V.  Valentine,  6  Mo.  App.  176;  Warner  d.  baud  to  secure  his  debt,  has  the  right  to 
De  Witt  Co.  Nat.  Bank,  3  Bradw.  305;  have  the  two  thirds  interest  in  the  land  first 
Millsaps  y.  Bond,  64  Miss.  453;  Turner  v.  sold  to  pay  the  debt."  Citing  Birke  v. 
Flinn,  67  Ala.  529;  Denton  v.  Nat.  Bank,  Abbott,  103  Ind.  1,  1  N.  E.  Rep.  485; 
18  N.  y.  Supp.  38.  Figart  v.  Halderman,  75  Ind.  564  ;  Medsker 

2  Ogden  V.  Gliddcn,  9  Wis.  46.  v.  Parker,  70  Ind.  509;   Leary  v.  Sliaffer, 
s  Drake  v.  Bray,  2  Stewart's  Dig.  1877,    79  Ind.  567;    Grave  v.  Bunch,  83  Ind.  4 ; 

p.  1036;    Gresham  v.  Ware,  79  Ala.   192;  Main  v.  Ginthert,  92  Ind.  180;  Trentman 

Norman  r.  Norman, 26  S.  C.41, 11  S.  E.  Rep.  v.  Eldridge,  98  Ind.  525. 

1096  ;  Hoppes  v.  Hoppes,  123  Ind.  397,  24  *  South  worth  v.  Parker,  41  Mich.  198. 

N.  E.  Rep.  139,  per  Olds,  J.:  "And  a  pur-  5  Myers  v.  Pierce,  86   Ga.  786,  12  S.  E. 

chaser  of  the  property  of  the  surety  so  niort-  Rep.  978. 

gaged  would  have  this  same  right;  so  one 

519 


§§  1630  a,  1631.]     foreclosure  sales  under  decree  of  court. 

queiit  purclmsers,  the  equitable  rules  already  spoken  of  must  be 
observed  ;^  and  if  the  mortgages  cover  in  part  the  same  land,  and 
are  both  foreclosed  together,  the  land  inehided  in  the  first  mortgage 
should  be  exhausted  before  recourse  is  had  to  tlie  second.^ 

Where  a  mortgage  covers  two  parcels  of  land,  the  owners  of 
which  have  apportioned  the  mortgage  between  them,  and  the  owner 
of  one  parcel  has  paid  his  share  of  it,  upon  a  foreclosure  of  the 
mortgage  the  other  tract  should  first  be  sokl.^ 

Where  joint  owners  of  land  have  executed  a  mortgage,  one  of 
the  mortgagors,  upon  alleging  and  proving  that  he  executed  the 
mortgage  as  a  surety  for  the  other,  under  a  statute  providing  for 
the  determination  of  the  question  of  suretyship,  may  have  the  in- 
terest of  the  principal  debt-or  sold  before  his  interest  is  sold.* 

When  a  principal  and  a  surety  have  jointly  mortgaged  lands  be- 
longing to  each  individually,  the  surety  has  an  equity  to  require 
that  the  lands  of  the  principal  shall  be  first  sold  and  applied  to  the 
satisfaction  of  the  debt.^ 

1630  a.  The  same  rule  applies  in  case  of  a  mortgage  by  ten- 
ants in  common  of  tlie  common  land  to  secure  the  debt  of  one  of 
them.*^  If  there  has  subsequently  been  a  valid  partition  between 
such  tenants  by  a  recorded  conveyance,  the  court  would  doubtless 
require  the  mortgagee  to  resort  in  the  first  instance  to  the  portion 
conveyed  in  severalty  to  the  principal  debtor.  But  an  unregistered 
deed  does  not  afford  complete  evidence  of  title  in  severalty  in  the 
former  co-tenants  to  a  creditor  holding  an  incumbrance  on  the  undi- 
vided estate.  "  Tiiis  is  putting  the  creditor  to  the  disadvantage  of 
the  danger  of  sacrificing  a  part  of  the  mortgaged  estate  by  selling  a 
title  that  does  not  exist,  or  of  the  existence  of  which  the  evidence  is 
doubtful,  and  thus  endangering  the  ultimate  security  of  his  debt."  "' 

1631.  If  the  mortgagee,  having  notice  of  successive  aliena- 
tions of  parts  of  the  mortgaged  premises,  has  released  a  part 
which  is  primarily  liable  for  the  payment  of  the  debt,  he  cannot 
charge  the  other  portions  of  the  premises  with  the  payment  of  it 
without    first    deducting    the  value  of    the    part    released,^  and  he 

1  Burpee  v.  Parker,  24  Vt.  567.  becomes   the   principal,  and   tlie   priucipal 

2  Rami  V.  Reynolds,  11  Cal.  14.  becomes  his  surety.     Sefton  v.  Hargett,  113 
8  Weyant  v.  Murphy,    78   Cal.    278,   20    Ind.  592,  15  N.  E.  Kep.  .513. 

Pac.  Rep.  5G8.  ^  Gresham  v.  Ware,  79  Ala.  192. 

*  Chaplin  v.  Baker,  124  Ind.  385,  24  N.  ^  Lorey  v.  Overton,  42  N.  J.  Eq.  330,  11 

E.  Rep.  233.     But  an  answer  by  such  al-  Atl.  Rep.  15, 

leged  principal  that  the  original  surety,  for  ''  Evans   v.    Fields  (Miss.),  11   So.  Rep. 

a  valuable  consideration,  had  agreed  with  224. 

his  principal  to  ]iay  the  joint  indebtedness,  ^  See  §§  727,  731.     New  Jersey:    Reilly 

is  good,  for  such  original  surety  thereby  v.  Mayer,  12  N.  J.  Eq.  55;    Vanorden  v. 

520 


ORDER   OF   SALE. 


[§  1631. 


must  make  tliis  dednction  before  proceeding  to  sell  tlie  other 
portions. 1  If  tiiiit  value  equals  the  entire  debt,  lie  must  bear  the 
loss,  as  he  cannot  then  resort  to  the  first  lot  sold;  if  it  is  equal 
to  a  part  of  the  debt  only,  he  may  resort  to  the  lot  sold  for  the 
deficiency.  But  if  the  mortgagor  had  no  title  to  the  lot  released, 
or  it  could  in  any  way  be  shown  that  the  owners  of  the  other  lots 
were  not  prejudiced  by  the  release,  this  rule  would  not  apply.^ 
In  such  cases,  in  order  to  ascertain  the  value  of  the  different 
parts  of  the  land,  and  the  amount  due  on  the  mortgage,  a  refer- 
ence is  ordered.^  A  mortgagee,  however,  does  not,  by  a  partial 
release  without  consideration,  impair  his  right  to  enforce  his  mort- 
gage against  the  remainder  of  the  property,  nidess  he  had  actual 
notice  of  the  previous  transfer  of  the  remainder  or  of  s^me  por- 
tion of  it  by  the  mortgagor.  The  same  rule  about  notice  already 
stated  H})plies  equally  here.  A  reference  in  his  release  to  a  convey- 
ance of  another  part  of  the  land  by  the  mortgagor  is,  however,  con- 
structive notice  of  it.^ 

If  the  mortgagee  having  also  personal  security  for  his  demand 
by  his  fault  and  negligence  loses  this,  a  purchaser  of  the  land  may 
compel  him  to  deduct  from  the  mortgage  debt  the  value  of  the 
securit}'  lost,  so  that  the  mortgage  can  be  foreclosed  only  for  the 
balance.^ 

But  where  by  the  terms  of  the  mortgage  the  mortgagee  has 
agreed  to  release  any  portion  of  the  mortgaged  land  upon  receiv- 


Johnson,  14  N.  J.  Eq.  376;  Mickle  v. 
Ramho,  1  N.  J.  Eq.  501  ;  Shannon  v.  Mar- 
selis,  1  N.  J.  Eq.  413  ;  ILirrison  v.  Gueriu, 
27  N.  J.  Eq.  219  ;  Mount  v.  Potts,  23  N.  J. 
Eq.  188;  Hoy  v.  Biamliall,  19  N.  J.  Eq. 
563,  97  Am.  Dec.  687  ;  Bhiir  v.  Ward,  10 
N.  J.  Eq.  1 19  ;  Gaskill  v.  Sine,  13  N.  J.  Eq. 
400,  78  Am.  Dec.  105.  New  York :  Guion 
V.  Kuapp,  6  Paige,  3.5,  29  Am.  Dec.  741  ; 
Stevens  v.  Cooiier,  1  Johns.  Cli.  425,  7  Am. 
Dec.  499;  Stuyvesant  v.  Hone,  1  Samlf. 
Ch.  419;  Patty  v.  Pea^-e,  8  Paige,  277,35 
Am.  Dec.  683.  Massachusetts  :  Parkman 
V.  "Welch,  19  Pick.  231  ;  George  v.  Wood,  9 
Allen,  80,  85  Am.  Dec.  741  ;  Beard  v.  Eitz- 
gerald,  105  Miis.s.  134;  Clark  v.  Fontain, 
135  Mass.  464.  Other  States :  Deuster  v. 
McCamiis,  14  Wis.  307  ;  Birnic  v.  Main,  29 
Ark.  591  ;  Taylor  v.  Maris,  5  Kawie,  51  ; 
James  v.  Brown,  11  Mich.  25;  Miller  v. 
Rogers,  49  Tex.  398. 

In   Igleliart   v.   Crane,  42    111.    201,    the 
court  tay  :  "  From  this  rule,  as  to  the  order 


in  which  mortgaged  premises  are  to  be 
charged,  it  follows  as  a  comllary  that,  if 
the  mortgagee  with  actual  notice  of  the 
facts  releases  from  the  mortgage  that  i)or- 
tion  of  the  premises  primarily  liable,  he 
thereby  releases  pro  tanto  the  portion  sec- 
ondarily liable.  When  the  mortgage  is 
sought  to  be  enforced  again.-t  the  owner  of 
the  latter,  he  can  claim  an  abatement  of  his 
liability  to  the  extent  of  the  value  of  that 
portion  which  should  have  made  the  pri- 
mary fund."  Followed  in  Boone  v.  Clark, 
129  111.  466,  21  N.  E.  Rep.  8.50. 

1  Hall  V.  Edwards, 'IS  Mich.  473,  5  N.  W. 
Rep.  652  ;  Hill  v.  Howell,  36  N.  J.  Eq.  25; 
Schrack  v.  Shriner,  100  Pa.  St.  451. 

2  Taylor  v.  Short,  27  Iowa,  361,  1  Am. 
Rep.  280.     * 

3  Gaskill  V.  Sine,  13  N.  J.  Eq.  400,  78 
Am.  Dec.  105. 

<  Booth  V.  Swezcy,  8  N.  Y.  276. 
5  Moody  r.  Haselilen,  I  S.  C.  129. 

621 


§  1632.]        FORECLOSURE   SALES  UNDER  DECREE   OF   COURT. 

ing  a  certain  price  per  foot,  and  the  mortgagor  divides  the  land 
into  lots  and  sells  two  of  them  by  warranty  deed  to  different 
purchasers,  who  build  dwelling-houses  upon  the  lots,  and  one  pur- 
chaser obtains  a  release  of  his  lot  upon  paying  to  the  mortgagee 
the  stipulated  price  per  foot  for  the  land,  the  other  purchaser  can- 
not restrain  the  mortgagee  from  selling  his  lot  under  the  mortgage, 
the  lots  remaining  unsold  not  being  worth  enough  to  pay  the  mort- 
gage debt ;  but  such  purchaser  is  entitled  to  redeem  on  paying  the 
stipulated  price  per  foot.^ 

1632.  Homestead.  —  The  fact  that  the  mortgage  covers  a  home- 
stead and  also  other  property,  which  is  subject  to  a  subsequent  judg- 
ment lien,  gives  the  debtor  no  right  to  have  the  latter  property 
first  applied  to  the  payment  of  the  mortgage  debt,  so  that  he  may 
save  his  homestead.^    The  power  to  compel  a  mortgagee  to  resort  in 

1  Clark  V.  Fonntaiu,  135  Mass.  464.  lien  has  been  acquired   by  proceedings  in 

-  §§  731,  1286,  where  the  reasons  for  the  invitum,  and  not    by   the   contract   of   the 

rule  are  stated  :  —  debtor. 

Massachusetts  :  Searle  v.  Chapman,  121  In  Texas  no  mortgage  on  the  homestead 

Mass.  19.  is   valid   except   for    the    purchase -money 

Kansas:    Chapman  v.   Lester,    12  Kans.  thereof  or  improvements  thereon.      Const. 

.592.     See,  however,  La  Rue  v.  Gilbert,  18  1876,  art.  16,  §  50.     But  where  a  mortgage 

Kans.  220.  was  given   upon   land,   a   specific   ]>art   of 

Illinois:    Plain   v.   Roth,    107    111.    588;  which  was  a  homestead,  and  a  portion  of 

Brown  v.  Cozard,  68  111.  178.     See  Dodds  the  loan  secured  was  used  to  pay  off  ven- 

V.  Snyder,  44  111.  53.                                      •  dors'  liens  on  the  homestead  upon  foreclos- 

Kentucky:  Webster  r.  Bronston,  5  Bush,  ure  of  the  mortgai^c,  it  was  held  that  the 

521.  mortgagee  was  subrogated  to  the  right  of 

Pennsylvania:  Hallman  v.  Hallman,  124  the  holders  of  the  vendors'  liens  as  to  such 

Pa.  St.  347,  16  Atl.  Rep.  871  ;   Pittman's  specific  part,  and  on  foreclosure  was  enti- 

App.  48  Pa.  St.  315.  tied    to   sell    the   whole   tract,   except   the 

Wisconsin  :    White  v.   Polleys,  20   Wis.  homestead,  and,  if  sufficient  was  not  real- 

503,  91    Am.  Dec.  432;  Jones  v.  Dow,  18  ized  to  satisfy  the  mortgage  debt,  then  to 

Wis.  241.  sell  the  homestead  to  sntisfy  so  much  of  the 

South  Carolina:    State  Sav.  Bank  v.  Har-  decree  as  should  not  exceed  the  sum  used 

bin,  18  S.  C.  425  ;  Bowen  v.  Barksdale,  33  to  pay   off  such  vendors'  liens.      Ivory  v. 

S.  C.  142,  11  S.  E.  Rep.  640.  Kennedy,   57   Fed.    Rep.   340;    Pridgen  v. 

But  in  other  States  the  courts  require  the  Warn,  15   S.   W.   Rep.  559,   79  Tex.   588, 

mortgagee  to  exhaust  his  remedy  against  followed. 

the  non-exempt  property  included   in  the  Kansas :    Frick  Co.   v.  Ketels,  42  Kans. 

mortgage    before    resorting    to    the    mort-  527,  22  Pac.  Rep.  580 ;    Colby  v.  docker, 

gagor's  homestead  or  other  exempt   prop-  17  Kans.  530;  La  Rue  v.  Gilbert,  18  Kans. 

erty.  220. 

California:  McLaughlin  v.  Hart,  46  Cal.  Iowa  :  Equitable  Life  Ins.  Co.  v.  Gleason, 

638.  62  Iowa,  277,  17  N.  W.  Rep.  524.     In  this 

Michigan:  Armitage  v.  Toll,  64  Mich.  State  a  distinction  is  taken  between  a  subse- 
412,  31  N.  W.  Rep.  408.  quent  sale  of  the  mortgaged  land  and  a  sub- 
Minnesota:  Miller  v.  McCarty,  47  Minn,  sequent  mortgage  of  it  as  regards  the  effect 
321,  50  N.  W.  Rep.  235.  In  McArthur  v.  upon  the  homestead  right.  Thus  in  Dilger 
Martin,  23  Minn.  74,  and  Horton  r.  Kelly,  v.  Palmer,  60  Iowa,  117,  10  N.  W.  Rep. 
40  Minn.  193,  41  N.  W.  Rep.  1031,  this  763,  14  N.  W.  Rep.  134,  it  was  held, 
rule  was  adopted,  at  least  where  the  second  upon  a  subsequent  sale  with  covenants  of 

522 


ORDER  OF  SALE.  [§  1632. 

the  first  instance  to  one  of  several  parcels  mortgaged,  or  to  one  part 
of  the  mortgaged  property,  is  exercised  only  for  the  protection  of  the 
equities  of  different  incumbrancers  or  sureties,  and  never  for  the 
benefit  of  the  mortgagor,  Avho  has  voluntarily  waived  his  right  of 
exemption.!  The  fact  that  part  of  the  property  is  a  homestead 
does  not  change  the  equity  rule  that  a  party  having  security  on  two 
funds  shall  first  exhaust  his  remedy  upon  the  fund  he  alone  is  se- 
cured upon,  when  there  is  anotlier  partj'^  having  security  on  the 
other.2  In  a  case  where  tlie  mortgage  embraced  the  homestead  and 
a  business  lot,  and  the  homestead  had  been  sold  to  satisfy  the  mort- 
gage debt,  and  there  were  judgment  liens  upon  the  business  lot, 
the  court  declined  to  set  aside  the  foreclosure  sale.^ 

But,  on  the  other  hand,  it  has  been  heW  that  the  courts  will  not 
place  burdens  on  the  homestead  not  created  by  the  parties  them- 
selves or  by  the  law ;  and  therefore  that,  where  a  first  mortgage 
executed  by  a  husband  and  wife  covers  a  homestead  and  other  land 
standing  in  the  name  of  the. wife,  and  afterwards  the  wife  alone  ex- 
ecutes a  mortgage  upon  all  the  land  covered  by  the  first  mortgage 
except  the  homestead,  the  first  mortgagee  will  not  be  required  to 
exhaust  the  funds  derived  from  a  sale  of  the  homestead  before  re- 
sorting to  the  land  covered  by  the  second  mortgage,  in  order  that 
both  debts  may  be  paid.  The  securities  will  not  be  marshalled 
where  the  effect  will  be  to  place  an  additional  liability  against  the 
homestead,  to  which  the  husband  and  wife  had  not  assented.* 

warranty  of  the  portion  of  the  mortgaged  ^  /„  re  Sauthoff  &  Olson,  7  Biss.  167; 
jiremises  not  embraced  in  the  homestead,  Hall  v.  Morgan,  61  Miss.  47. 
the  mortgagor  could  not  iusist  that  the  ^  Jones  y.  Dow,  18  Wis.  241,  Chief  Jus- 
property  so  conveyed  should  be  first  sold  to  tice  Dixon  saying:  "However  just  and 
satisfy  the  mortgage.  The  homestead,  on  reasonable  it  might  be  for  the  court  to  com- 
the  contrary,  must  first  be  sold.  This  dis-  pel  a  sale  of  the  business  lot  first,  and  thus 
tiuction  is  jdaced  on  the  ground  that  the  save  the  homestead,  if  that  were  the  only 
conveyance  in  this  case  is  the  voluntary  act  question,  yet  we  think  the  mortgagor's 
of  the  mortgagor,  while  in  the  other  case  equity  to  hold  his  homestead  fully  counter- 
the  conveyance  is  the  legal  result  of  the  vailed  by  the  equities  of  his  creditors,  who 
mortgage.  must  look  to  the  business  lot  for  their  sat- ' 

In  South  Carolina  it  is  huld  that  the  ex-  isfaction,    and    who    have    no    lien    upon 

tent  of  the  homestead  should  be  judicially  the  homestead.     Until  the  legislature  shall 

ascertained  before  judgment  of  foreclosure  have  declared  the  obligation  to  preserve  the. 

is  passed.     Adger  v.  Bostick,  12  S.  C.  64.  homestead  superior  to  that  of  paying  one's 

There  the  judgment  creditor  has  the  equi-  honest  debts,  we  must   hold  the  equity  of 

table  right  to  compel  the  mortgagor  to  first  the  creditor  at  least  equal    to  that  of  the 

exhaust  so  much  of   the  debtor's  land  as  debtor   in    cases    like    this."       See,    also, 

embraces  the  homestead.     State  Sav.  Bank  Schreiber  v.  Carey,  48  Wis.  208,  4  N.  W. 

V.  Harbin,  18  S.  C.  425.  Kep.  124. 

1  Story  Kq.  Jur.  §  640;    Pom.  Eq.  Jur.  *  Mitchelson  v.  Smith,  28  Neb.  583,  44 

§  1414  ;  Scarle  v.  Chapman,  121   Mass.  19  ;  W.  Rep.  871. 

Ivory  V.  Kennedy,  57  Fed.  Rep.  340.  This  same  rule  applies  where  dower  has 

628 


§  1632  «.]      FORECLOSURE   SALE   UNDER  DECREE   OF   COURT. 

Even  under  a  statute  whicli  requires  that  other  property  shall  be 
exhausted  before  resort  is  had  to  a  homestead  covered  by  the  mort- 
gage, a  foreclosure  sale  under  a  mortgage  embracing  a  homestead 
estate  will  not  be  set  aside  because  the  land  was  first  offered  in  sepa- 
rate parcels  corresponding  with  the  government  subdivisions,  and 
no  bids  were  received,  when  the  whole  of  the  land  including  the 
homestead  was  offered  and  sold.i 

If  a  mortgage  be  executed  by  a  husband  alone,  so  that  it  has  no 
validity  against  the  homestead  estate,  and  this  be  set  apart  and  the 
remainder  of  the  land  sold  under  foreclosure  proceedings,  the  mort- 
gagee's lien  is  exhausted.^  It  seems,  too,  that  in  such  case  the 
homestead  property  in  excess  of  the  statutory  limit  may  be  sub- 
jected to  the  satisfaction  of  the  mortgage,  but  the  pleading  must 
put  in  issue  the  value  of  the  property.^ 

Where  a  first  mortgage  was  made  by  a  husband  and  wife  with  a 
release  of  their  homestead  right,  and  a  second  mortgage  of  the 
same  premises  was  made  without  such  a  release,  the  wife  not  join- 
ing, and  the  homestead  was  declared  as  having  been  selected  upon 
a  certain  part  of  the  land,  upon  a  foreclosure  of  the  first  mortgage 
it  was  held  that  the  second  mortgagee  could  not  insist  that  the  home- 
stead should  be  first  sold.^ 

The  mortgagee  should  be  made  a  party  to  the  proceedings  for 
setting  off  the  homestead,  or  he  will  not  be  estopped  from  denying 
the  right  upon  foreclosure.^ 

1632  a.  But  this  is  a  right  which  the  mortgagor  must  season- 
ably assert  for  himself.  The  mortgagee  is  under  no  obligation  to 
see  that  the  debtor's  homestead  right  is  not  lost  by  the  sale.  "  The 
mortgagee  owes  him  no  duty  to  assert  it  for  him,  or  to  institute 
proceedings  to  protect  it.  The  equity  is  simply  one  which  the  law 
will  protect  upon  seasonable  application  of  the  mortgagoi-,  where 
the  mortgagee  proceeds  to  enforce  his  mortgage."  The  rule,  more- 
been  assipned  to  the  widow  in  some  part  of  148,  50  N.  W.  Rep.  493;  Biirmeister  x\ 
•the  mortgat:ed  premises;  the  mortgagee  Dewey,  27  Iowa,  468. 
may  be  required  to  sell  the  other  mortgaged  Offering  the  lands  other  than  the  home- 
land before  resorting  to  that  set  off  as  stead  in  separate  tracts,  and  endeavoring 
dower.  Asl^ew  v.  Askew,  103  N.  C.  285,  9  thus  to  sell  before  offering  and  selling  in 
S.  E.  TJei>.  646.  a  body,  is  exhausting  the  other  property, 

In  case  a  debt  is  secured  by  mortgage  on    within  the  meaning  of  the  statute, 
real  and  personal  property,  the  mortgagee        ^  Lear  v.  Tatten,  14  Bush.  101. 
will  not  be  compelled  to  resort  to  the  realty         ^  Whiilock    v.  Gosson,  35    Neb.   829,  53 
before  suing  a  purchaser  of  the  personalty,     N.  W.  Kep.  980. 

to  the  prejudice  of  the  mortgagor's  home-        *  Armitage    v.  Toll,  64  Mich.  412,  31    N. 
stead.     Harris  v.  Allen,  104  N.  C.  86,  10    W.  Rep.  408. 
S.  E.  Rep.  127.  5  Goodall  v.  Boardman,  53  Vt.  92. 

1  Brumbaugh   v.   Shoemaker,   51    Iowa, 

624 


CONDUCT   OF   SALE.  [§§  1633,  1634. 

over,  being  founded  on  a  mere  equity,  will  not  be  enforced  to  the 
displacement  of  a  countervailing  equity,  or  where,  for  any  special 
facts,  it  would  be  inequitable  to  enforce  it.^ 

IV.    Conduct  of  Sale. 

1633.  The  officer  conducting  the  sale  should  be  present. 
The  sale  is  made  by  public  auction  to  the  highest  bidder,  unless 
otherwise  ordered  by  the  court.  It  is  conducted  by  the  officer 
designated  by  the  decree  or  by  statute,^  though  he  ma}''  employ 
an  auctioneer  to  act  for  liim  in  his  presence.^  His  presence  is  re- 
quired in  order  that  tlie  parties  inteiested  may  have  the  benefit  of 
the  discretion  and  judgment  which  he  should  exercise  for  their 
benefit,  in  order  to  obtain  a  fair  price  for  the  property.^  Tliere  is 
often  special  occasion  for  the  exercise  of  a  reasonable  discretion 
in  the  matter  of  adjournments  ;  for  unexpected  occurrences  may 
at  the  last  moment  threaten  a  sacrifice  of  the  property,  unless  he 
exercises  his  right  to  adjourn  the  sale  to  another  da}''.  This  is  one 
of  the  duties  which  he  cannot  properly  delegate  to  another.  If  a 
sale  be  made  in  the  absence  of  the  sheriff,  whose  duty  it  is  to  con- 
duct it,  by  his  agent  or  bailiff  informally  appointed,  and  the  sheriff 
executes  a  deed  to  the  purchaser,  the  deed  will  pass  the  title,  and 
will  be  good  in  a  collateral  proceeding  as  the  act  of  an  officer  de 
facto,  but  will  be  set  aside  on  a  direct  application  made  in  the  course 
of  the  same  proceeding.^  It  has  even  been  held  that  a  sale  by  one 
loan  commissioner  in  the  absence  of  his  associate  is  irregular,  though 
the  deed  be  executed  by  both.^ 

The  property  must  be  offered  to  the  highest  bidder,  and  bids  re- 
ceived so  long  as  they  are  offered  ;  and  after  waiting  a  reasonable 
time  for  another,  and  none  being  made,  it  should  be  struck  off  to 
the  highest  bidder.''^ 

1634.  Adjournment.^  —  If  at  the  time  and  place  of  sale  there 
be  no  bidder  present  other  than  the  mortgagee  or  his  attorney,  it 

1  Miller  v.  McCai'ty,  47  Minn.  321,  50  whether  the  sale  should  go  on  or  be  put  off 
N.  W.  Rep.  2.35.  was   a  judicial   act,   and   that  the   parties 

2  Heyer  v.  Deaves,  2  Johns.  Ch.  154;  interested  were  entitled  to  have  had  that 
Shepard  v.  Whaley,  13  N.  Y.  Supp.  532.  question  determined  by  both  commissioners. 

2  Blossom  V.  R.  11.  Co.  3  Wall.  196,  205.  5  Meyer  v.  Patterson,  28  N.  J.  Eq.  249, 

*  Powell  V.  Tattle,  3  N.  Y.  396.     In  this  sub.  nom.  Meyer  v.  Bishop,  27  N.J.  E(i.  141. 

case  a  sale  made  by  one  loan  commissioner  ^  York  v.  Allen,  30  N.  Y.  104;  Olmsted 

was  set  aside.     The  law  required   that  the  v.  Elder,  5  N.  Y.  144;  Pell  v.   Ulmur,  21 

sale  should  be  made  by  two  commissioners,  Barb.  500.     See,  however,  King  v.  Stow,  6 

but  only   one   was  present.      Tiie  circum-  Johns.  Ch.  323. 

stances  were  such  that  the  sale  should  have  "  Bicknell  v.  Byrnes,  23  How.  Pr.  486. 

been  po.stponed,  and   the  court  of  appeals  And  .see  May  v.  Mav,  II  Paij^e,  201. 

held    that    the    decision    of    the    question  '^  See  chapter  xi,,  division  10, 

525 


§  1634.]        FORECLOSURE   SALES   UNDER   DECREE   OF   COURT. 

is  the  duty  of  the  auctioneer  or  officer  making  the  sale  to  adjourn  it.^ 
The  application  for  an  adjournment  usually  comes  from  some  one 
or  more  of  the  pvirties  interested ;  but  it  may  be  the  duty  of  the 
officer  to  adjourn  the  sale  without  the  request  of  any  one,  and  even 
against  the  wish  of  a  party  in  interest.^  The  officer  making  the 
sale  may  properly  adjourn  it  by  direction  of  the  complainant's 
solicitor,  for  the  purpose  of  enabling  the  mortgagors  to  pay  the 
debt ;  and  he  may  make  several  short  adjournments  for  this  pur- 
pose, and  finally,  upon  payment,  may  discontinue  the  sale  alto- 
gether.^ He  has  a  discretionary  power  in  this  respect;  but  if  he 
exercises  it  in  an  arbitrary  or  unreasonable  manner,  the  sale  will  be 
set  aside  and  a  resale  ordered."^  The  adjourned  day  of  sale  should 
be  announced  at  the  time  of  the  adjournment;  ^  but  if  this  cannot 
be  done  on  account  of  an  injunction,  a  general  adjournment  may  be 
made,  and  the  day  advertised  afterwards.*^  If  the  first  day  is  by 
mistake  set  upon  a  Sunday,  the  postponement  may  be  effected  by 
an  advertisement  before  the  day  arrives.'  If  the  day  fixed  for  sale 
be  afterwards  appointed  a  legal  holiday,  an  adjournment  should  be 
made.  In  such  case  the  advertisement  is  not  rendered  invalid.^  If 
a  referee  is  appointed  to  conduct  the  sale,  and,  at  the  time  and  place 
advertised  for  the  sale,  plaintiff's  attorney,  without  authority  from 
the  referee,  orders  the  sale  to  be  postponed  on  account  of  the  latter's 
absence,  the  sale  must  be  readvertised  by  the  referee.^ 

If  the  day  of  sale  be  fixed  in  the  announcement  of  the  adjourn- 
ment, and  other  notice  of  the  adjourned  sale  name  a  different  day, 
the  sale  will  be  irregular.^^ 

The  adjournment  may  be  made  to  a  different  place  than  that 
named  in  the  original  notice,  unless  the  place  be  fixed  by  law  or  by 
the  decree  ;  ^^  though  a  sale  adjourned  to  a  place  different  from  that 
named  in  the  decree  has  been  confirmed. ^^ 

It  is  the  better  and  safer  practice  to  advertise  the  adjourned  sale, 
though   this  is   not  always  essential  to   the  legality   of   the  sale.^-^ 

1  Strong  V.  Catton,  1  Wis.  471.  '^  Westgate  ;;.  Handlin,  7  How.  Pr.  372. 

■■^  Astor  V.  Roniayne,  1  Johns.  Ch.  310;        «  White  v.  Zust,  28  N.  J.  Eq.  107. 
McGown  V.  Sandford,  9  Paige,  290.     See,        ^  Shepard    ;•.  Whaley,  13  N.  Y.    Supp. 

also,  Russell  i^.  Richards,  11   Me.  371,  26  532. 

Am.  Dec.  532;  Tiiikom  v.  Purdy,  5  Johns.        ^^  Miller  v.  Hull,  4  Den.  104. 
345  ;  Richards  v.  Holmes,  18  How.  143, 147  ;        ^^  See  Richards?;.  Holmes,  18  How.  H3, 

Ward  V.  James,  8  Hun,  526.  147. 

3  Blossom  V.  R.  R.  Co.  3  Wall.  196.  i-  Farmers'   Bank    v.    Clarke,    28    Md. 

*  Breese  v.  Busby,  13  How.  Pr.  485.  145. 

5  La  Farge  v.  Van  Wagenen,  14  How.        ^^  Stearns  v.  Welsh,  7  Hun,  676;  Bech- 

Pr.  54.  stein  v.  Schultz,  45   Hun,  191.     This  is  hy 

•»  La  Farge  v.  Van  Wagenen,  14  How.  rule  of  court  in  New  York. 
Pr.  54. 

626 


CONDUCT   OF   SALE.  [§§  1635,  1636. 

Omission  to  publish  notice  of  the  adjourned  sale,  tliongh  required 
by  statute,  is  an  irregularity  merely,  which  may  afford  good  ground 
for  vacating  and  setting  aside  the  sale  made,  but  one  which  the 
parties  are  competent  to  waive,  and  which  must  be  regarded  as 
waived  after  the  sale  has  been  confirmed  without  objection.^  If  an 
adjournment  be  made  at  the  I'equest  of  the  owner  of  the  equity  of 
redemption,  under  an  agreement  to  allow  commissions  and  expenses 
of  the  postponed  sale,  these  are  a  personal  claim  against  him,  and 
cannot  be  taken  out  of  the  proceeds  of  the  sale  to  the  detriment  of 
any  one  else.^ 

1635.  A  sale  may  be  kept  open  so  as  to  enable  the  mortgagee 
or  officer  making  the  sale  to  put  up  the  property  again,  in  case  the 
person  bidding  it  off  fails  to  make  good  his  bid.  Notifying  the 
persons  brought  together  by  the  published  notice  that  the  sale 
would  thus  be  held  open  is  all  that  is  requisite  ;  and  a  sale  made 
in  accordance  with  such  notification  will  not  be  set  aside  at  the  in- 
stance of  the  first  bidder,  in  the  absence  of  equities,  and  merely  for 
the  reason  that  it  was  made  after  the  time  when  it  was  advertised 
to  take  place.^ 

If  the  purchaser  refuses  to  make  good  his  bid,  the  officer  conduct- 
ing the  sale  may  properly  open  the  sale  and  sell  the  propert}^  again. 
A  purchaser  refused  to  complete  his  bid,  on  the  ground  that  imme- 
diately thereafter  he  had  discovered  that  there  was  a  mortgage  for 
eight  thousand  dollars  on  the  premises  undischarged  of  record,  and 
that  he.  did  not  have  time  to  ascertain  the  status  of  the  mortgage. 
The  referee  on  the  same  day  resold  the  premises  to  another  pur- 
chaser for  a  less  price.  It  appeared  that  the  sum  unpaid  on  the 
mortgage  was  as  stated  by  the  referee.  The  court,  in  its  discretion, 
properly  i-efused  to  vacate  the  second  sale  and  permit  the  first  pur- 
chaser to  complete  his  bid,  and  such  refusal  was  not  appealable.* 

1636.  The  objection  to  the  mortgagee's  buying  at  the  sale, 
when  the  mortgaged  property  is  sold  under  judicial  process,  has 
much  less  force  than  it  has  when  the  sale  is  made  under  a  power  ;  ■'' 
for  the  judicial  sale  is  made  by  an  officer  designated  by  the  court  or 
by  statute  for  the  purpose,  and  the  mortgagee  for  whose  benefit  it 
is  made  has  not  the  actual  control  and  management  of  the  sale,  as 
he  has  in  case  of  a  sale  under  a  power.  Accordingly,  in  those  States 
in  which  the  sale  under  a  power  is  taken  out  of  the  hands  of  the 

1  Bechstein  v.  Schultz,  120  N.  Y.  168,  24  v.  Thorn  (Ky.),  13  S.  W.  Rep.  365  ;  Hughes 
N.  E.  Rep.  388.  v.  Swope,  88  Ky.  254,    1  S.  W.  Ri-p.  394. 

2  Neptune  Ins.  Co.  i;.  Dorsey,   3  Md.  Cli.  And  see  Baring  v.  Moore,  5  Paige,  48. 
334.  ♦  Judson  v.  O'Connell,  14  N.  Y  Supp.  92. 

8  Isbell  V.  Kenyon,  33  Mich,  63  ;    Wilson        ^  See  §§  1876-1886. 

527 


§  1636.]         FORECLOSURE   SALES   UNDER   DECREE   OF   COURT. 

mortgagee  and  placed  under  tlie  direction  of  a  sheriff  or  other 
officer,  tlie  restriction  against  the  mortgagee's  buying  is  at  the  same 
time  generally  removed. ^ 

Where  the  authorit}'-  is  not  given  to  the  mortgagee  by  statute  or 
by  judicial  construction  to  buy  at  a  sale  under  decree  of  court  upon 
his  own  mortgage,  it  is  sometimes  provided  in  the  decree  that  he 
may  become  a  purchaser,  and  he  may  generally  obtain  leave  to 
purchase  for  himself.^  It  is  generally  for  the  interest  of  the  mort- 
gagor and  others  interested  that  he  should  have  the  right  to  buy,  as 
it  often  happens  that  he  will  pay  more  for  the  property  than  any 
one  else  will  pay  ;  and  it  is  often  equally  important  to  the  mort- 
gagee to  have  this  power,  in  order  to  prevent  a  sacrifice  of  his  own 
interests.^  But  under  the  technical  rule  against  his  purchasing, 
no  one  not  interested  in  the  equity  of  redemption  can  take  advan- 
tage of  his  purchasing  ;*  and  a  person  entitled  to  do  so  can  only 
redeem.  He  acquires  the  same  title  against  third  parties  as  does 
any  other  purchaser.  The  fact  that  property  so  acquired  may  be  or 
is  treated  as  personal  estate  in  the  distribution  of  the  property  of 
his  intestate  does  not  affect  his  holding  of  the  lands  as  to  others. 
He  acquires  the  fee,  and  can  dispose  of  it  by  deed,  wdiich  deed  will 
carry  the  same  title  as  would  the  deed  of  any  other  purchaser.^  If 
such  administrator  is  a  creditor  of  the  estate  to  an  amount  exceed- 
ing the  purchase-price  of  the  mortgaged  land,  and  he  pays  for  the 

1  See  §  1882.  had  been  attorney  for  both  parties,  and  who 

2  See  Coii;;er  v.  Rin^,  11  Barb.  356;  acted  for  the  grantee  in  makiiij;  the  loan, 
Doniville  v.  Bcrrinj,aon,  2  Y.  &  C.  723.  induced  the  <;rantee  to  inchnle  in  the  deed  a 

In  New  York,  by   rule  of  court,  a  pro-  sum  due  from  the  grantor  to  him  for  legal 

vi.siou  is  inserted  in  every  decree  for  the  services,  and  agreed  that  no  part  of  such  sum 

sale  of  mortgaged  prenii>es,  unless  other-  should  be  paid  until  the  loan  was  repaid  in 

wise   specially   ordered,    that   the   plaintiff  full.  The  gran  tee  afterwards,  desiring  to  ter- 

may  become  the  purchaser.     Ten  Eyck  v.  minate  the  trust,  was  advised  by  the  attorney 

Craig,  62  N.  Y.  406,  421,  per  Andrews,  J.,  that  he  could  not  purchase  at  a  sale  under 

37  Am.  Dec.  233.     In  Felton  v.  Le  Breton,  the  power  contaiued  in  the  deed,  but  that 

92  Cal.  457,  28  Pac.  Bep.  490,  it  was  said :  he  might  do  so  on  foreclosure   by  action, 

"A  court  of  equity  has  the  same  right  to  and  take  the  land  di.>charged  of  the  trust, 

determine  in  advance  of  the  SiUe,  in  any  par-  The  action  to  foreclose  was  conducted  by 

ticular  case,  that  the  circumstances  are  such  the  attorney  for  the  grantee.     The  grantee, 

as  will  justify  it  to  authorize  the  trustee  to  being  authorized  by  the  decree,  purciiased 

become  a  purcliaser,  as  it  has  after  the  sale  at   the  foreclosure   sale   for   less   than  the 

to  approve  a  ]]urchase   made  by  a  trustee  amount  of  his  loan.     It  was  held  that  he 

under  statutory  authority.     Wiien  the  sale  took  the  land  discharged  of  any  trust  on 

is  made  under   the  direction  of  a  court  of  account  of  the  sum  secured  for  the  benefit 

equity,  by  officers  appointed  by  the  court,  of  the  attorney. 

it  is  not  a  sale  by  the  trustee,  and  the  rule  ^  See  Holcomb  v.  Holcomb,  11  N.  J.  Eq. 

forbidding  liim  to  purchase  at  his  own  sale  281. 

has  no  application."     In  this  case,  on  the  *  Edmondson  v.  Welsh,  27  Ala.  578. 

execution  of  a  trust  deed  to  secure  a  loan  ^  Watson  v.  Grand  Ba))ids  &  I.  R.  Co. 

from  the  grantee  to  the  grantor,  one  who  91  Mich.  198,  51  N.  W.  Rep.  990. 
528 


CONDUCT   OF   SALE.  [§  1636. 

land  so  purchased  by  crediting  the  estate  with  this  amount,  the  heirs 
of  the  intestate,  asserting  their  right  to  charge  the  administrator  as 
a  trustee  for  them  of  the  title  acquired  by  such  purchase,  should 
not  be  required  to  pay  to  him  the  full  amount  of  his  debt  against 
the  estate,  but  only  so  much  of  it  as  he  had  applied  in  making  the 
purchase.^ 

The  attorney  for  plaintiff,  acting  fairly  and  honestly,  may  buy 
in  the  premises  for  his  own  benefit  and  hold  the  same,  except  as 
against  his  own  client.^ 

An  officer  of  a  corporation  may  purchase  corporate  property  at  a 
sale  on  foreclosure  of  a  mortgage  thereof,  and  the  sale  is  not  neces- 
sarily void  even  though  such  mortgage  was  originally  made  to  him, 
and  was  assigned  by  him  to  another  to  be  foreclosed  ;  especially 
where  he  had  an  interest  to  protect  as  holder  of  a  subsequent  judg- 
ment against  the  corporation,  and  the  party  objecting  had  abundant 
notice  of  the  sale,  and  there  was  no  fraud  or  unfairness.^ 

A  subsequent  mortgagee  may  purchase  at  a  sale  under  a  senior 
mortgagee  to  protect  his  own  mortgage.  There  is  no  equitable 
consideration  that  puts  a  person  bidding  upon  premises  at  such  a 
sale,  because  he  holds  a  second  mortgage  upon  the  premises,  in  any 
different  position  than  a  person  bidding  who  has  no  second  mort- 
gage or  other  lien  upon  the  premises.'* 

Creditors  of  the  mortgagor,  whether  they  be  all  the  bondholders 
secured  by  the  mortgage  or  a  part  of  such  bondholders,  may  fairly 
combine  to  purchase  the  property  at  the  mortgage  sale.  Other 
creditors  are  not,  by  such  combination,  deprived  of  the  right  to  bid 
at  such  sale.^ 

The  mortgagee's  heirs  or  personal  representatives  may  purchase 
at  the  sale.^  An  executor  or  administrator  of  the  mortgagee  pur- 
chasing at  the  foreclosure  sale   holds  the  title  for  the  benefit  of  the 

1  Lewis  r.  Welch,  47  Minn.  193,  49  N.  W.  if  they  believed  the  property  would  sell  for 
Rep.  665,  affirming  48  N.  W.  Rep.  608.  more  ;  and  it  was  further  stated  that,  where 

2  Holland  Trust  Co.  v.  Hogan,  17  N.  Y.  the  director  himself  was  the  judgment  credi- 
Supp.  919  ;  McCotter  v.  Jay,  30  N.  Y.  80.  tor,  he  had  a  clear  right  to  sell  the  property 

3  Preston  y.  Loughran,  12  N.  Y.  Supp.  of  the  corporation,  and  it  was  not  decided 
313.  SeeTwin-LickOilCo.  j;.  Marbury,  91  that  he  might  not  then  purchase  in  his  own 
U.  S.  587,  589.     In  Hoyle  v.  Railroad  Co.  right. 

54  N.  Y.  314,  the  Commission  of   Appeals  *  Watson  v.  Grand  Rapids  &  I.  R.  Co. 

stated  that  a   director  of  a  railroad    com-  91  Mich.  198,  51  N.  W.  Rep.  990. 

pany  could  not  become  a  purchaser  of  prop-  5  Kropholler  v.  St.  Paul,  Minn.  &  Mani- 

erty  of  the  corporation,  except  subject  to  toba  Ry.   Co.    1   McCrary,  299;   Marie   v. 

the  right  of  the  corporation  to  elect  to  dis-  Garrison,  83  N.   Y.  14;  Santa   Marina   v. 

affirm  the  sale  and  have  a  resale.     But  it  Connolly,  79  Cal.  517,  21  Pac.  Rep.  1093. 

was  not  said  that  the  sale  was  void,  only  6  Briant  v.  Jackson,  99  Mo.  585,  13  S.  W. 

that  the  corporation  might  ask  for  a  resale  Rep.  91. 


VOL.  II.  34 


629 


§  1636.]        FORECLOSURE   SALES   UNDER  DECREE   OF   COURT. 

estate,  and  the  land  is  treated  as  personal  property .^  An  appraiser 
of  the  property  may  purchase  at  the  sale  where  it  appears  that  he 
had  no  idea  of  making  the  purchase  at  the  time  he  made  the  ap- 
praisement, and  that  he  appraised  the  property  at  as  high  a  price  as 
it  should  have  been  appraised. ^ 

The  relation  of  the  life-tenant  to  the  remainder-men  is  not  of 
such  a  fiduciary  nature  that  he  cannot  purchase  the  property  at  a 
foreclosure  sale  ;  and  his  vendee,  for  valuable  consideration,  and 
without  knowledge  of  any  fraud,  takes  a  good,  fee-simple  title.^ 

A  mortgagee  who  becomes  a  purchaser  under  a  decree  made  upon 
his  own  complaint  is  not  allowed  to  object  to  the  title  on  the  ground 
that  persons  in  possession  of  the  property  without  title  were  not 
made  parties.*  And  even  if  there  be  a  defect  in  the  proceedings 
he  is  supposed  to  have  full  notice  of  it,  though  actual  notice  be  not 
shown,  and  is  not  allowed  to  object  on  account  of  it.^  The  plain- 
tiff's attorney  may  bid  off  the  property,  and  the  presumption  is  that 
he  is  making  the  purchase  on  his  own  account.*^ 

If  the  foreclosure  jjroceedings  are  for  any  cause  ineffectual,  and  a 
mortgagee  purchases  and  enters  into  possession  under  such  void  pro- 
ceedings, his  relation  to  the  mortgaged  premises  is  that  of  a  mort- 
gagee in  possession.'^  He  is  accountable  to  one  who  establishes  a 
right  to  the  property  for  rents  and  profits,  and  may  be  allowed  for 
payments  for  taxes  and  repairs.^ 

When  the  mortgagee  has  the  right  to  purchase,  the  mortgage 
debt  is  not  extinguished  for  any  unsatisfied  balance,  any  more  than 
it  is  in  case  a  stranger  becomes  the  purchaser.^ 

A  purchaser  of  land  subject  to  a  mortgage  which  he  has  agreed 
to  assume  and  pay  is  not  precluded  from  purchasing  at  a  sale  under 
the  mortgage  within  the  rule  against  mortgagees  buying.^*' 

The  usual  provision  in  a  decree  of  foreclosure,  that  any  of  the 
parties  to  the  suit  may  purchase  on  the  sale,  does  not  authorize  one 
defendant  to  bid  in  property  belonging  to  another,  and  to  hold  it 
against  the  latter  contrary  to  equity. ^^ 

The  mortgage   debtor  may  purchase  at   the  foreclosure  sale ;  ^^ 

1  Valentine  v.  Belden,  20  Hun,  537.  '  Cooke  v.  Cooper,  18  Oreg.  142,  22  Pac. 

-  Barlow  v.  McClintock  (Ky.),  11  S.  W.  Kep.  945. 

Rep.  29.  8  Wood  v.  Kroll,  4  N.  Y.  Supp.  678. 

3  German-American  Deposit  Co.  v.  Deitz,  ^  Edwards  v.  Sanders,  6  S.  C.  316. 

132  Pa.  St.  36,  18  Atl.  Kep.  1090.  1°  McNeill  v.  McNeill,  36  Ala.  109,  76  Am. 

*  Ostrom  V.  McCann,  21  How.  Pr.  431.  Dec.  320. 

5  Boyd  V.  Ellis,  11  Iowa,  97.  ii  Bennett  v.  Austin,  81  N.  Y.  308, 

^  Chappel  V.  Dann,  21  Barb.  17.     And  12  Toliver  f.  Morgan,  75  Iowa,  619,  34  N. 

see  Squier  v.  Norris,  1  Lans.  282.     But  see  W.  Rep.  858;  Bensieck  v.  Cook,  110  Mo. 

§§1878,1879.  173,  19  S.  W.  Rep.  646. 
530 


CONFIRMATION   OF   SALE.  [§  1637. 

and  his  wife  has  the  same  right  as  any  person  to  purchase  at  such 
sale,  and  to  hold  tlie  property  free  from  liability  on  account  of  her 
liusband's  debts,  provided  she  does  so  in  good  faith  and  with  her 
own  money. ^ 

A  life  tenant  stands  in  no  such  fiduciary  relation  to  the  remainder- 
men that  he  cannot  purchase  the  property  at  a  foreclosure  sale.  He 
owes  them  no  duty,  and  is  not  charged  with  any  trust.^ 

V.   Confirmation  of  Sale. 

1637.  Until  confirmed  by  the  court  the  sale  is  incomplete. 
The  acceptance  of  the  bid  confers  no  title  upon  the  purchaser,  and 
not  even  any  absolute  right  to  have  the  purchase  completed.  He  is 
nothing  more  than  a  preferred  bidder,  or  proposer  for  the  purchase, 
subject  to  the  sanction  of  the  court  afterwards.^  When  this  is 
given,  it  relates  back  to  the  time  of  sale,  and  carries  the  legal  title 
from  the  delivery  of  the  deed  and  the  equitable  title  without  a 
deed.*  In  a  few  States  the  foreclosure  sale  is  made  by  a  special 
writ  of  execution  issued  to  the  sheriff,  and  no  report  of  the  sale  or 
confirmation  of  it  is  required.  Such  a  sale  is  not  purely  a  judicial 
sale,  which  is  founded  upon  proceedings  in  equity,  or  upon  an  equi- 
table action.  In  those  States  in  which  foreclosure  is  obtained  by  a 
suit  at  law,  as  by  scire  facias,  or  by  proceedings  of  a  mixed  nature, 
the  sale  is  either  ministerial  or  only  ^'Z^asi  judicial. 

The  confirmation  cures  all  mere  irregularities  in  the  proceed- 
ings to  obtain  the  sale,  and  in  the  conduct  of  it,^  but  does  not 
make  good  a  defect  arising  from  want  of  jurisdiction  of  the  court 
either  of  the  case  or  of  any  party  interested  ;  and,  moreover,  fraud, 
accident,  or  mistake,  which  will  invalidate  a  contract  generally,  are 
grounds  for  setting  aside  the  sale  after  confirmation.''     If,  however, 

1  Houston  I'.  Nord,  39  Minn.  490,  40  N.  Savings  &  Commercial  Bank  v.  Harrigan, 

W,  Rep.  568;  Mooring  v.  Little,  98  N.  C.  53  Cal.  229. 

472,  4  S.  E.  Kep.  485.  *  Stang  v.  Keddtn,  28  Fed.  Rep.  11. 

■^  German-American  Deposit  Co.  u.  Deitz,  ^  Cross  y.  Knox,  32  Kaus.  725, 5  Pac.  Rep. 

132  Pa.  St.  36,  18  Atl.  Rej).  1090.  32.     It  is  binding  on   all   parties  in  court, 

^  Daniell's  Cli.  1454;  Busey  v.  Hardin,  2  thongli  the  commissioner  failed  to  sell  the 
B.  Mon.  407;  Hay's  Appeal,  51  Pa.  St.  58,  parcels  in  the  order  directed  Uy  the  decree. 
61;  Young  v.  Keogh,  11  III.  642;  Gowan  Beard  v.  Morris  (Ky.)  19  S.  W.  Rep,  598. 
V.  Jones,  18  Miss.  164  ;  Mills  v.  Ralston,  10  **  The  statement  in  the  text  is  fully  illus- 
Kans.  206;  Allen  v.  Poole,  54  Miss.  323;  trated  by  Mr.  Justice  Beckwith,  in  Dills  v. 
Wells  V.  Rice,  34  Ark.  346;  Mebane  v.  Me-  Jasper,  33  111.262;  though  Mr.  Justice  Ca- 
bane,  80  N.  C.  34,  44  Am.  Dec.  102  ;  Har-  ton,  in  the  previous  case  of  Jackson  v.  War- 
wood  V.  Cox,  26  111.  App.  374.  An  order  ren,  32  111.  331,  had  asserted  that  a  valid 
of  confirmation  not  appealed  from  cuts  off  and  binding  contract  is  made  when  the 
the    right   of    redemption.     Odd    Fellows'  hammer  falls,  and  that   the    purchaser   is 

entitled  to  a  deed. 

531 


§  1638.]        FORECLOSURE   SALES   UNDER   DECREE   OF   COURT. 

the  deed  be  delivered  without  confirmation,  long  continued  posses- 
sion under  it  will  make  the  title  valid. ^ 

Even  the  question  of  the  validity  of  a  mortgage  may  be  deter- 
mined under  exceptions  to  the  ratification  of  the  sale ;  and  after 
such  exceptions  have  been  overruled,  and  the  sale  has  been  ratified, 
no  action  can  be  brought  to  test  its  validity .^ 

Confirmation  cannot  be  objected  to  on  the  ground  that  there 
would  be  no  default  in  the  payment  of  interest  if  the  sum  retained 
as  a  bonus  by  the  mortgagee  at  the  time  of  the  loan  were  applied 
to  the  payment  of  the  legal  interest  upon  the  sum  actually  ad- 
vanced. Usury  cannot  be  taken  advantage  of  in  this  way.  "  In 
determining  whether  there  has  been  a  default  the  court  must  be 
governed  by  the  terms  of  the  mortgage  itself,  irrespective  of  the 
question  of  usury.  After  a  default  thus  made,  a  sale  or  its  ratifica- 
tion can  be  prevented  on  this  ground  only  by  paying,  or  at  least 
offering  to  pay,  the  sum  actually  loaned,  with  legal  interest. ^  The 
usurious  interest,  when  once  paid,  may  be  recovered  back  by  an 
action  at  law,  or  in  equity  may  be  eliminated  from  the  claim,  upon 
'the  objection  of  others  whose  rights  its  allowance  would  injuriously 
:affect.4 

An  erroneous  or  imperfect  description  of  the  premises  in  any  of 
the  proceedings  is  not  a  sufficient  ground  of  objection  to  confirma- 
tion, unless  it  be  alleged  and  shown  that  the  party  objecting  will  be 
.prejudiced.^ 

Tlie  usual  order  7i{si,  that  the  sale  stand  confirmed  unless  cause 
to  the  contrary  be  shown  within  a  specified  time,  is  a  sufficient  order 
of  confirmation  of  a  sale.*^  An  appeal  may  be  taken  from  such 
order.'' 

1638.  It  rests  -wholly  in  the  discretion  of  the  court  whether 
the  sale  shall  be  confirmed  or  not,  and  this  power  will  be  exercised 
prudently  and  fairly  in  the  interest  of  all  concerned.  An  order 
directing  or  refusing  a  resale  is  not  subject  to  review  or  appeal.^ 

1  Gowan  v.  Jones,  18  Mis?.  164.  against  the  objectors.     Lambert  v.  Living- 

2  Alberti!.  Hamilton,  76  Md.  304,  25  Atl.    ston,  131  IlL  161,  23  N.  E.  Rep.  352. 

JRep.  341.  "  Detroit  F.   &  M.  Ins.  Co.  v.  Renz,  33 

3  Smith  V.  Myers,  41  Md.  425,  434,  Mich.  298  ;  Koehler  v.  Ball,  2  Kans.  160,  83 
*  Smith  V.  Myers,  41  Md.  42.5,  434.               Am.  Dec.  451  ;  Trilling  v.  Schumitsch,  67 

5  Cooper  V.  Foss,  15  Neb.  515.  Wis.  186,  30  N.  W.  Rep.  222. 

6  Torrans  v.  Hicks,  32  Mich.  307.  If  it  »  Goodell  v.  Harrington,  76  N.  Y.  547  ; 
be  ordered  that  a  foreclosure  sale  be  con-  Hale  v.  Clauson,  60  N.  Y.  339 ;  Crane  v. 
firmed  unless  objections  are  filed,  and  such  Stiger,  58  N.  Y.  625;  State  Bank  v.  Green, 
objections  are  filed  for  the  sole  purjiose  of  8  Neb.  297,  2  N.  W.  Rep.  228;  Berkley  r. 
deciding  who  is  entitled  to  the  surplus  Lamb,  8  Neb.  392,  1  N.  W.  Rep.  320;  State 
money,  an  order  disposing  of  the  surplus  v.  Doane,  35  Neb.  707,  53  N.  W.  Rep.  611. 
amounts  to  a  confirmation  of    the  sale  as 

632 


CONFIRMATION   OF   SALE.  [§  1639. 

The  court  should  be  satisfied  that  the  sale  has  been  made  in  accord- 
ance with  the  requirements  of  the  decree,^  and  especially  that  no- 
tice of  the  sale  vKiS  given  as  required.^  If  the  sale  has  been  regular 
in  all  respects,  the  motion  to  confirm  should  be  allowed.^  The  mort- 
gagee is  entitled  to  a  confirmation  of  the  sale,  and  satisfaction  of  his 
decree,  without  regard  to  the  equities  acquired  in  the  mortgaged 
premises  by  a  purchaser  from  the  mortgagor  pendente  lite.^ 

Confirmation  of  the  sale  can  only  be  regular!}^  made  after  notice 
of  the  motion  for  it  to  the  parties  adversely  interested  that  they 
may  show  cause  against  it.^  "  Notice  of  the  motion  is  given  to  the 
solicitors  in  the  cause,  and  confirmation  nisi  is  ordered  by  the  court, 
—  to  become  absolute  in  a  time  stated,  unless  cause  is  shown  against 
it.  Then,  unless  the  purchaser  calls  for  an  investigation  of  the 
title  by  the  master,  it  is  the  master's  privilege  and  duty  to  draw  the 
title  for  the  purchaser,  reciting  in  it  the  decree  for  sale,  his  approval 
of  it,  and  the  confirmation  by  the  court  of  the  sale,  in  the  manner 
that  such  confirmation  has  been  ordered."  ^  An  order  of  confirma- 
tion cannot  be  properly  made  before  the  coming  in  of  the  report.' 

The  confirmation  is  usually  made  by  a  formal  order.  It  is  the 
practice,  generally,  for  the  master  or  other  officer  who  makes  the 
sale  to  fully  complete  it  so  far  as  he  can,  by  delivery  of  the  deed 
and  payment  of  the  proceeds,  before  obtaining  the  order  of  court ; 
but  confirmation  may  be  made  in  the  first  place  of  the  sale,  and 
afterwards  of  the  deed.  In  England  it  is  the  practice  to  with- 
hold the  deed  until  the  final  order  confirming  the  sale  is  made  abso- 
lute.^ One  whose  bid  is  not  accepted  by  the  officer,  though  it  is 
the  highest  made,  cannot  insist  upon  a  confirmation  to  himself  of 
the  sale.^ 

One  who  was  a  party  to  the  deed,  and  was  duly  served  with  pro- 
cess but  failed  to  appear,  and  allowed  a  decree  of  foreclosure  to  be 
entered  and  a  sale  to  be  made,  will  not  be  allowed  to  object  to  the 
confirmation,  and  to  set  up  his  lien,  unless  he  can  show  sufficient 
cause  for  his  delay  and  default.^*^ 

1639.  A  resale  may  be  asked  for  by  any  one  whose  rights  are 
injuriously  affected  by  the  sale,  although  he  be  not  a  party  to  the 

1  Moore  v.  Titman,  33  111.  358.  «  Williamson  v.  Berry,  8  How.  495-546, 

'■^  Perrien  v.  Fetters,  35  Mich.  233.  per  Wayne,  Justice. 

^  New  England  Mortgage  Security  Co.  v.  "^  Citizens'  Savings  Bank  v.  Bauer,  I  N. 

Smith,  25  Kans.  622.  Y.  Supp.  450,  49  Hun,  238. 

*  Pendleton  v.  Spear,  56  Ark.  194,  19  S.  ^  Ex  parte  Minor,  11  Ves.  559. 

W.  Rep.  578.  3  Blossom  v.  K.  \\.  Co.  3  Wall.  196. 

5  Branch  Bank  at  Mobile  v.  Hunt,  8  Ala.  w  Graves  v.  Fritz,  24  Neb.  375,  38  N.  W. 

876.  Rep.  819;  Albert  v.  Hamilton,  76  Md.  304, 

25  Atl.  Kep.  341. 

533 


§  1639,]        FORECLOSURE   SALES  UNDER  DECREE   OF   COURT. 

suit,^  and  tliongli  he  have  no  specific  lien,  provided  his  rights  are 
affected.^  The  circumstances  of  each  particular  case  must  be  in- 
quired into  and  acted  upon.^  The  most  general  prhiciple  on  which 
the  courts  act  in  setting  aside  the  sale  and  ordering  a  new  one  is 
that  equity  will  not  allow  any  unfairness  or  fraud,  either  on  the 
part  of  the  purchaser,*  or  of  any  other  person  connected  with  the 
sale.^  Thus  where  prior  to  a  foreclosure  sale  the  mortgagee's  agent 
agreed  to  bid  off  the  property  for  the  mortgagors  for  two  thousand 
and  fifty  dollars,  but  instead  of  doing  so  bid  it  off  for  himself  for 
fifteen  hundred  dollars,  an  order  refusing  to  confirm  the  sale,  and 
granting  a  resale  on  the  filing  of  a  bond  by  the  mortgagors  condi- 
tioned that  on  a  resale  the  property  should  bring  two  thousand  dol- 
lars, was  properly  granted.^ 

It  is  no  ground  for  refusing  to  order  a  resale  that  the  purchaser, 
before  confirmation,  has  conveyed  the  land,  or  that  there  is  a  sur- 
plus which  is  claimed  by  judgment  creditors  J  Neither  the  pur- 
chaser nor  aii}^  one  else  has  any  right  to  regard  the  sale  as  concluded 
until  it  is  confirmed. 

The  application  may  be  made  by  motion  to  the  court,  at  any 
time  before  the  report  of  the  sale  has  been  confirmed,  notice  of 
which  should  be  given  to  every  person  who  has  appeared  in  the 
cause,  or  who  has  any  interest  in  the  sale,  as  well  as  to  the  pur- 
chaser.^ A  sale  may  be  set  aside,  under  an  order  upon  the  pur- 
chaser to  show  cause,  procured  by  the  mortgagor  or  other  defend- 
ant.^ A  sale  may,  however,  under  special  circumstances,  be  set 
aside  after  confirmation,  although  more  and  stronger  evidence  of 
fraud  or  misconduct,  or  other  grounds  for  invalidating  the  sale,  is 
then  required. ^'^ 

It  is  not  proper  for  the  master  or  other  officer  who  has  made  the 
sale  to  resell  the  property  without  an  order  of  court,  on  the  failure 
of  the  purchaser  to  comply  with  the  terms  of  sale  ;  but  if  he  does 
resell  upon  his  own  responsibility,  there  is  not  necessarily  sufficient 
ground  for  holding  the  second  sale  void.^^ 

The  court  will  generally  impose  terms  and  conditions  upon  the 

1  Kellopg  V.  Howell,  62  Barb.  280.  John   v.  jNIayor  &   Aldermen  of   N.  Y.   6 

2  Goodell  !'.  Harrington,  76  N.  Y.  1547.  Diier,  31.5,  13  How.  Pr.  527;  Tyer  v. 
8  Lefevre  v.  Laraway,  22  Barb.  167.  Charleston  Rice  Milling  Co.  32  S.  C.  598, 
*  Murdock  v.  F.mpie,  19  How.  Pr.  79.  10  S.  E.  Rep.  1067. 

5  Stahl  V.  Charles,  5  Abb.  Pr.  348.  9  Hubhard    v.  Taylor,  49  Wis.  68,4  N. 

^  New  York  Missionary  Soc.  v.  Bishop,  W.  Rep.  1066. 

8  N.  Y.  Supp.  60.               "  w  Lansing  u.McPherson,  3  Johns.  Ch.  424. 

■^  Wolcott  y.  Schenck,  23  How.  Pr.  385.  "Augustine    v.   Doud,  1  Bradw.    588; 

8  Robinson  i'.  Mei-s,  10  Paige,  41  ;  St.  Dills  v.  Jasper,  33  HI.  262. 

534 


CONFIRMATION  OF  SALE.       [§§  1640,  1641. 

mortgagor  upon  directing  a  resale,  especially  if  the  occasion  for  it 
is  in  any  way  attributable  to  his  own  negligence. ^ 

The  purchaser,  ma}'  object  to  the  confirmation  of  the  sale,  and 
it  will  not  be  confirmed  when  it  appears  that  the  title  is  bad,  or  of 
doubtful  validity.^ 

1640.  Before  confirmation  of  the  sale  the  court  may  open  the 
biddings  at  the  instance  of  one  who  is  bound  to  make  good  any  defi- 
ciency, on  his  offering  a  large  advance  upon  the  bid  of  the  mortga- 
gee, who  was  the  purchaser,  and  paying  the  costs  of  the  former 
sale.^  It  has  been  the  practice  in  England  to  open  biddings  upon 
the  offer  of  a  reasonable  advance  beyond  the  last  bid;*^  but  this 
practice  has  not  prevailed  very  much  here,^  and  its  utility  has  been 
doubted  or  denied  quite  generally.^  The  opening  of  biddings,  in- 
stead of  being  a  practice  here,  is  rather  something  that  is  allowed  in 
special  cases  ;  and  generally  something  more  than  inadequacy  of 
price  must  be  shown,  unless  this  be  very  gross.  The  opening  of 
biddings  is  a  matter  of  discretion  for  the  court  in  which  the  action 
is  pending.  The  appellate  court  will  not  interfere  with  the  action 
of  that  court  in  refusing  to  open  a  mortgage  sale,  except  for  an 
abuse  of  its  discretion,  which  cannot  be  presumed  because  the  appli- 
cant offers  a  substantial  advance  on  the  price  at  which  the  property 
was  sold." 

In  Alabama,  when  the  property  has  been  purchased  by  the  mort- 
gagee, a  resale  will  be  ordered  before  confirmation  if  an  advance  of 
not  less  than  ten  per  cent,  on  the  former  sale  is  offered  and  the 
money  deposited  in  court. ^ 

1641.  Great  inadequacy  of  price  may  be  urged  with  force 
against  a  confirmation  of  the  sale,  because  this  is  incomplete  and 
depends  upon  the  equitable  discretion  of  the  court  for  completion.^ 

1  Miller  v.  Kendrick  (N.  J),  15  Atl.  Rep.  v.  Whipple,  13  Wend.  224  ;  Adams  v.  Has- 
259.  keli,  10  Wis.  12.3. 

2  Trapier  v.  Waldo,  16  S.  C.  276.  ■?  Gurmer  v.  Ensign,  155  Pa.  St.  4G4,  26 

3  Lansing    v.    M'Pherson,  3   Johns.  Ch.  Atl.  Rep.  657. 

424.     la  this  case  the  offer  was  an  advance  *  Littell  v.  Zuntz,  2  Ala.  256. 
of  fifty  per  cent.     See,  also,  Mott  v.  Walk-  For  statutory  provision  in  regard  to  con- 
ley,  3  Edw.  590.  firniation  of  sales  in  New  Jersey,  see  §  1350. 

*  Garstone   i\  Edwards,    1    S.    &.  S.  20.  ^  See  Chapter  xl.,  division  14;  Vanbus- 

Vice-Chancellor  Leach    said  :  "  The  court  sum   v.  Maloney,  2   Mete.  550 ;    Busey  c. 

does  not  confine  itself  to  a  particular  per  Hardin,  2  B.  Mon.  407,  411;  Williams  v. 

cent.,  although  £10  per  cent,  is  a  sort  of  Woodruff,  1  Duval,  257;  Taylor  y.  Gilpin, 

general   rule."      The  advance  must  be   at  3  Mete.  544;  Horsey  v.  Hough,  38  Md.  130. 

least  £40   to  cover  expenses.     Farlow  v.  An  offer  to  bid  $2,400  at  a  resale,  when 

Weildon,  4  Madd.  460.  the  premises  brought  $2,000  at  the  original 

^  Williamson  y.  Dale,  3  Johns.  Ch.  290,  sale,  is  no  ground  for  refusing  to  confirm. 

292;  Lefevre  v.  LMraway,22  Barb.  167, 173.  AUis  v.  Sabin,  17  Wis.  626.    See,  also,  Bul- 

6  Duncan  v.  Dodd,  2  Paige,  99;  Collier  lard  v.  Green,  10  Mich.  268. 

535 


§  1642.]        FORECLOSURE   SALES   UNDER   DECREE   OF   COURT. 

Until  the  sale  is  approved  by  court,  the  purchaser  does  not  acquire 
any  independent  right  by  his  purchase ;  he  may  be  regarded  merely 
as  an  accepted  or  preferred  bidder.  The  inadequacy  of  price  may 
be  such  as  to  be  of  itself  an  indication  of  fraud  or  unfairness ;  and 
if  not  so  gross  as  to  indicate  fraud,  when  taken  in  connection  with 
other  circumstances,  it  is  ground  for  setting  the  sale  aside  and  order- 
ing a  resale ;  as,  for  instance,  when  a  party  wliose  interests  are  inju- 
riously affected  by  the  sale  has  been  prevented  from  attending  it 
through  mistake  or  misapprehension.^  But  generally  an  objection 
to  confirmation  on  account  of  the  price  obtained  will  be  overruled, 
unless  it  be  shown  that  upon  a  resale  a  larger  price  would  be  ob- 
tained.^ 

In  general  a  resale  may  be  had  for  any  cause  which  would  be  a 
ground  for  setting  aside  the  sale  after  confirmation  ;  and  causes  of 
like  nature,  which  might  not  be  regarded  as  sufficient  for  setting 
aside  the  sale  after  it  has  been  completed,  will  be  sufficient  to  pre- 
vent confirmation  and  subject  the  property  to  a  resale.^ 

A  sale  was  confirmed  against  the  objection  of  the  mortgagee 
where  the  sale  was  regularly  and  fairly  conducted,  but  the  mortga- 
gee's agent  failed  to  attend  the  sale  and  bid  upon  the  property,  and 
it  sold  for  much  less  than  its  value.^ 

VI.  Enforcement  of  Sale  against  Purchaser. 

1642.  One  who  bids  off  property  at  a  foreclosure  sale  be- 
comes a  quasi  party  to  the  suit,  so  that  he  subjects  himself  to  the 
jurisdiction  of  the  court,  and  may  be  compelled  to  pay  the  amount 
bid,^  by  its  process  for  contempt,  if  necessary.^  He  becomes  a 
party  by  signing  the  bid.''  Such  sale  is  not  within  the  statute  of 
frauds.^  The  fact  that  the  purchaser  acts  for  another  person  will 
not  relieve  him  if  he  makes  the  bid  in  his  own  name.^  Neither 
lapse  of  time,  nor  the  death  of  the  original  parties  to  the  suit,  will 
bar  the  right  of  the  court  to  compel  his  compliance  with  the  condi- 

1  Wetzler  v.  Schaumann,  24  N.  J.  Eq.  341  ;  Cazet  v.  Hiibbell,  36  N.  Y.  677  ;  Mil- 
60.  In  this  case  property  worth  $4,500  was  ler  v.  Collyer,  36  Barb.  250;  Goodwin  v. 
sold  for  $2,000.  Simonson,  74  N.  Y.  133;  Coulter  v.  Her- 

2  Farmers'  Bank  v.  Quick,  71  Mich.  534,  rod,  27  Miss.  685. 

39  N.W.  Rep.  752.  ^  Andrews  v.  O'Mahoney,  112  N.  Y.  567, 

3  See  §  1640.  20  N.  E.  Rep.  374. 

*  Babcock  v.  Canfield,  36  Kans.  437,  13  ''  Booruni  v.  Tucker  (N.  J.  Eq.),  26  Atl. 

Pac,  Rep.  787.  Rep.  456. 

5  Kneeland  v.  American  L.  &  T.  Co.  136  8  Andrews  v.  O'Mahoney,  112  N.  Y.  567, 

U.  S.  89,  10  Sup.  Ct.  Rep.  950;  Blossom  v.  20  N.  E.  Rep.  374. 

Railroad  Co.   1  Wall.  655;  Wood  v.  Mann,  9  Atkinson  v.  Richardson,  14  Wis.  157. 

3    Sumn.  318  ;  Requa  v.  Rea,  2  Paige.  339,  And  see  Lyon  v.  Elliott,  3  Ala.  654. 

536 


ENFORCEMENT  OF  SALE  AGAINST  PURCHASER.     [§  1642. 

tions  of  sale.^  If,  however,  the  delay  be  unreasonable,  and  in  the 
mean  time  there  has  been  a  material  change  detrimental  to  his 
interests,  the  purchase  will  not  be  enforced.  On  the  failure  of 
the  purchaser  without  good  cause  to  comply  with  the  terras  of 
sale,  if  it  appears  that  he  is  unable  to  perform  his  contract,  the 
parties  interested  in  the  sale  may,  upon  motion,  obtain  an  order 
discharging  the  sale  and  directing  a  resale ;  but  if  he  is  respon- 
sible the  court  may  order  him  to  pay  the  money  into  court,  and 
may  enforce  his  submission  by  attachment,  or  order  to  stand  com- 
mitted ;  or  may  order  a  resale  of  the  estate,  and  that  the  default- 
ing purchaser  pay  the  expenses  of  it,  and  any  deficiency  in  price 
arising  from  it.^ 

If,  after  a  purchaser  has  made  default  in  making  payment,  the 
court  without  notice  to  hira  orders  a  resale,  he  is  discharged  from 
any  liability  to  make  good  the  deficiency  arising  from  the  last  sale.^ 
The  holder  of  the  mortgage  by  obtaining  such  resale  is  deemed  to 
have  elected  to  waive  the  first  sale,  and  to  have  taken  the  risk  of 
obtaining  a  better  price.* 

A  mortgagor  cannot  defend  against  a  claim  for  a  deficiency  on 
the  ground  that  the  premises  were  at  first  sold  for  a  sum  sufficient 
to  pa}'^  the  mortgage  debt;  but  the  purchaser  failing  to  complete 
the  purchase,  an  order  was  granted  directing  a  resale,  whereupon 
there  was  a  deficiency,  unless  it  appear  that  payment  could  have 
been  enforced  against  the  first  purchaser,  that  the  mortgagor  re- 
quested the  mortgagee  to  enforce  such  payment,  or  that  the  mort- 
gagee acted  fraudulently  in  the  matter.  Moreover,  the  mortgagor 
cannot  defend  in  such  case,  because  the  mortgagee  has  the  light 
to  elect  either  to  proceed  against  the  purchaser  to  enforce  his  lia- 
bility upon  his  bid,  or  to  apply  for  a  resale  ;  and  having  chosen 
the  latter  remedy,  and  the  court  having  ordered  a  resale,  the  order 
is  conclusive,  and  releases  the  mortgagee  from  any  obligation  to 
institute  proceedings  to  recover  the  deficiency  of  the  purchaser.'''  If, 
upon  the  first  sale  only  one  of  two  lots  embraced  in  the  mortgage  is 
sold,  and  the  bidder  makes  default,  the  court  may  order  a  sale  of 

1  Cazet  V.  Hubbell,  36  N.  Y.  677  ;  Mer-  the  purchaser.  Savile  v.  Savile,  1  P.  Wins, 
chants'  Bank  v.  Thomson,  55  N.  Y.  7.  "45. 

2  2  Daniell's  Ch.  Pr.  1460-1462 ;  Hard-        3  Anthon    v.  Batchelor,  22  Abb.  N.  C. 
ing  V.  Harding,  4  Myl.   &  Cr.  514;  Lans-  423,  16  Civ.  Proc.  304,  5  N.  Y.  Supp.  798. 
downy.  Elderton,  14  Ves.  512;  Camden  v.        *  Riggs  v.  Pursell,  74  N.  Y.  370;  Miller 
Mayhew,  129U.  S.  73,  9  Sup.  Ct.  Rep.  246  ;  ,..  Collyer,  36    Barb.  250;  Home  Ins.  Co. 
Goodwin  v.  Simonson,  74  N.  Y.  133.  v.  Jones,  45  How.  Pr.  498. 

It  was  formerly  the  rule  that  a  forfeiture        5  Goodwin  v.  Simonson,  74  N.  Y.  133. 
of  the  deposit  was  the  only  redress  against 

537 


§  1G43.]         FORECLOSURE   SALES   UNDER  DECREE   OF   COURT. 

the  second  lot  witb.out  either  confirming  the  sale  to  the  first  bidder, 
or  ordering  a  resale  of  the  first  lot  at  his  risk.^ 

Subsequent  mortgagees,  and  others  interested  in  property  about 
to  be  sold  under  a  first  mortgage,  may  agree  that,  instead  of  selling 
sufficient  of  the  property  only  to  satisfy  the  first  mortgage,  the  en- 
tire premises  shall  be  sold  in  different  parcels,  so  as  to  raise  a  suffi- 
cient sum  to  pay  the  second  mortgage,  and  any  other  liens  that 
might  exist.  If  in  such  case,  owing  to  the  refusal  of  some  of  the 
bidders  to  complete  their  purchase,  tlie  amount  received  by  the  sale 
is  insufficient  to  pay  the  whole  amount  due  on  the  second  mortgage, 
the  holder  of  such  second  mortgage  is  not  estopped  by  reason  of 
such  stipulation  from  bringing  an  action  to  foreclose  his  mortgage 
for  the  balance  due  thereon,  and  he  is  not  bound  to  proceed  in  the 
former  suit  in  which  he  was  a  defendant  to  compel  the  bidders  to 
complete  their  purchase;  that  duty  devolves  either  upon  the  first 
mortgagee  or  the  owner  of  the  equity  of  redemption.  While  the 
second  mortgagee  might  have  taken  upon  himself  that  labor,  he  was 
not  so  compelled,  either  by  force  of  the  judgment  itself  or  the  stipu- 
lation for  the  sale  of  the  entire  property.^ 

A  mortgagee  who  has  bid  a  much  larger  sum  than  the  amount  of 
the  decree  of  sale  cannot  be  relieved  from  his  bid  on  the  ground 
that  he  had  been  advised  that  he  would  not  be  required  to  pay  over 
the  surplus  to  the  mortgagor  ;  the  mistake  alleged  being  one  of  law 
and  not  one  of  fact.^ 

1643.  Performance  is  enforced  by  attachment.*  The  proper 
tribunal  to  enforce  the  purchaser's  undertaking  is  that  in  which 
the  decree  of  sale  was  made,  and  the  application  may  be  by  motion.^ 
The  mode  of  enforcing  compliance  with  the  order  of  court  is  by 
attachment  against  the  person.^  The  fact  that  upon  the  purchaser's 
default  remedy  may  be  had  by  a  resale  of  the  lands,  or  by  suit 
against  him  for  damages,  does  not  deprive  the  court  of  the  right  to 
enforce  performance  in  this  summary  way ;  the  option  as  to  remedy 
lies  with  the  court  or  the  party  selling,  and  not  with  the  purchaser." 
Even  after  the  purchaser  has  complied  with  the  terms  of  sale,  by 
paying  part  cash  and  giving  a  bond  and  security  for  the  balance, 

1  Keishaw  I'.  Dyer,  6  Utah,  239,  24  Pac.  163,22  Am.  Dec.  293;  Gordon  v.  Saun- 
Rep.  621.  ders,  2  McCord  Ch.  151  ;  Brasher  v.  Cort- 

2  Jarvis  v.  Chapin,  13  N.  Y.  Supp.  693.  landr,  2  Johns.  (N.  Y.)  Ch.  505. 

3  §§  1650,  1929;  Shear  v.  Robiuson,  IS  ■'''  Wood  r.  Mann, 3  Sumn.  318,  326. 
Fla.  379.  6  Graham  v.  Bleakie,  2  Daly,  55;  Miller 

*  Clarkson  v.  Read,  15   Gratt.  288;  An-  v.  Collyer,  36  Barb.  250. 

derson  v.  Foulke,  2  Har.  &  Gill  (Md  ),346  ;  ■?  Wood  v.  Mann,  3  Sumn.  318  ;  Cazct  v. 

Richardson  ?-.  Jones,  3  Gill  &  Johns.  (Md.)  Hubbcll,  36  N.  Y.  677. 
638 


ENFORCEMENT   OF   SALE   AGAINST   PURCHASER.  [§  1644. 

and  tlie  sale  has  been  confirmed  b}^  court,  he  may  upon  his  failure 
to  pay  the  bond  be  proceeded  against  by  a  rule  made  upon  him  to 
show  cause  why  the  land  should  not  be  sold  for  the  payment  of  the 
purchase-money  ;  and  upon  that  proceeding  a  decree  may  be  made 
for  the  sale  of  the  land.^ 

In  a  case  where  the  purchaser  refused  to  complete  the  purchase 
after  having  made  a  small  deposit,  he  was  ordered  to  show  cause 
why  an  attachment  should  not  issue  against  him.  The  Chancellor 
said  that  he  had  no  doubt  of  the  power  of  the  court  to  coerce  a 
purchaser  where  the  conditions  of  sale  had  not  given  an  alterna- 
tive ;  and  that  in  this  case  the  forfeiture  of  the  deposit  would  not 
be  sufhcient,  either  as  punishment  to  the  one  party  or  a  satisfaction 
to  the  other.  He  was  ordered  to  pay  the  money  in  six  days,  or  that 
an  attachment  issue.^ 

The  fact  that  the  purchaser  has  been  ordered  to  complete  the 
purchase,  after  a  specific  objection  to  the  title  or  to  the  parties, 
does  not  decide  a  question  of  title  not  brought  to  the  considera- 
tion of  the  court  by  objection,  and  is  no  protection  to  the  pur- 
chaser against  persons  having  vested  interests  in  the  equity  of  re- 
demption, who  ought  to  have  been,  but  were  not,  made  parties  to 
the  suit.^ 

In  order  to  hold  a  purchaser  for  a  deficiency  upon  a  resale,  the 
terms  of  the  resale  should  be  substantially  the  same  as  the  terms 
upon  which  the  first  sale  was  made.  A  resale  under  different 
terms  would  not  afford  a  just  measure  of  the  liability  of  a  default- 
ing purchaser.  If  the  terms  of  the  resale  differ  materially  from 
those  of  the  original  sale,  the  mortgagee  cannot  collect  from  the 
former  purchaser  a  deficiency  arising  under  the  second  sale ;  and 
the  court  may  order  that  the  purchaser  be  relieved  from  his  pur- 
chase and  from  paying  any  deficiency.* 

1644.  Forfeiture  of  deposit.  —  If  the  purchaser  without  good 
cause  does  not  complete  the  purchase,  he  forfeits  the  deposit 
made  at  the  time  of  sale,  so  far  as  it  may  be  needed  to  make  up 
a  deficiency  in  price  on  a  resale.^  He  is  also  chargeable  with  the 
expenses  of  the  resale.^     A  resale  is  ordered  ;  and  if  there  is  a  loss 

1  Clarkson  v.   Read,  15  Gratt.  288.     In  ^  Brasher  r.  Cortlaudt,  2  Johns.  Ch.  505. 

Richardson  y.  Jones,  3  Gill  &  Johns.  163,22  »  Williamson  v.  Field,  2  Sandf.  Ch.  533. 

Am.  Dec.  293,  it  was  held,  contrary  to  the  *  Kipgs  v.  Pursell,  74  N.  Y.  370. 

decision  above,  that  the  power  of  the  court  "  Willets  v.  Van  Alst,  26  How.  Pr.  325. 

does  not  extend  to  enforcing'  sales  on  credit,  *^  Knight  v.  Moloney,  4  Hun,  33.   But  he 

after  the  purchaser  has  once  complied  with  is  not  chargeable  with  the  expense  of  cur- 

the  terms  of  sale  by  giving  security;  that  ing  a  formal  irregularity  in  the  foreclosure, 

the  remedy  is  at  law  on  the  security.  2  N.  Y.  Weekly  Dig.  40. 

539 


§  1645.]        FORECLOSURE   SALES   UNDER   DECREE  OF   COURT. 

in  price  from  the  former  sale,  judgment  may  be  had  against  the 
purchaser  for  the  difference,  towards  which  the  deposit  will  be  ap- 
plied.^ When  it  is  desired  to  hold  a  third  person  responsible  for 
the  loss  as  the  real  purchaser,  instead  of  the  person  who  bid  at 
the  sale,  the  order  for  resale  should  require  the  payment  to  be 
made  by  him,  and  the  suit  cannot  be  maintained  against  him 
when  the  order  requires  the  payment  to  be  made  by  the  bidder.^ 
If  on  the  purchaser's  default  a  resale  be  made,  without  any  applica- 
tion to  the  court,  to  the  same  purchaser,  he  is  liable  only  on  his  bid 
at  the  second  sale.^ 

1645.  If  there  be  a  defect  in  the  title,  unknown  to  the  pur- 
chaser at  the  time  of  sale,  and  of  which  he  had  neither  actual  nor 
constructive  notice,  the  court  will  not  ordinarily  compel  him  to  take 
a  deed  and  complete  the  purchase.*  The  decisions  upon  this  point 
are  not,  however,  in  harmony,  and  the  rule  more  generally  adopted 
is  stated  in  the  following  section. 

If  there  be  a  defect  in  the  title  to  a  part  of  the  land,  the  court 
will  not  allow  the  purchaser  to  reject  that  part  alone  and  have  a 
deduction  from  the  purchase-price  and  take  title  to  the  remainder ; 
though  he  may  refuse  to  complete  the  purchase,  and  move  for  re- 
turn of  the  deposit  made.^ 

The  innocent  bidder  is  entitled  to  be  repaid  his  proper  ex- 
penses. These  include  the  deposit  paid  by  him  on  the  sale,  the 
expenses  of  the  examination  of  the  title,  and  the  costs  of  the  mo- 
tion for  repayment.^  The  repayment  is  made  out  of  the  funds 
in  the  case,  if  there  are  any  ;  and  if  not,  the  plaintiff  must  pay 
the  expenses  in  the  first  instance,  but  may  recover  them  over  in  a 
suit  or  upon  a  resale.  If,  however,  the  defect  in  the  proceedings 
results  from  the  plaintiff's  negligence  in  omitting  to  make  some  one 
interested  under  the  mortgage  a  party  to  the  suit,  as,  for  instance, 
tiie  owner  of  the  equity  of  redemption,  such  expenses  cannot  be 
deducted  from  the  surplus  moneys  arising  from  the  second  sale,  as 
these  belong  to  the  owner  of  the  equity,  and  he  is  not  responsible 
for  the  irregularit}^  in  the  sale.' 

1  Graham  v.  Bleakie,  2  Daly,  55.  20  N.  Y.  412  ;  Hirsch  v.  Livingston,  3  Hun, 

-  Paine  v.  Smith,  2  Duer,  298.  9,  48  How.  Pr.  243;  Veeder  v.  Fonda,  3 

^  Home  Ins.  Co.  v.  Jones,  45  How.  Pr.  Paige,  94 ;  Seaman  v.  Hicks,  8  Paige,  655 ; 

498.  Shiveley  v.  Jones,  6  B.  Mon.  274. 

*  People  V.  Knickerbocker  L.  Ins.  Co.  66        ^  Thompson  v.  Schmieder,  38  Hun,  504. 

How.  Pr.   115  ;  Fryer  v.  Rockefeller,  63  N.        ^  Morris  v.  Mo  watt,  2  Paige,  586,  22  Am. 

Y.  268;  Merchants'  Bank  v.  Thomson,  55  Dec.  661. 

N.  Y.  7 ;  Simar  v.  Canaday,  53   N.  Y.  298,         '  Raynor  v.  Selmes,  52  N.  Y.  579,  revers- 

13  Am.  Rep.  523;  Mills  v.  Van  Voorhies,  ing  7  Lans.  440. 

640 


ENFORCEMENT   OF   SALE   AGAINST   PURCHASER.  [§  1G46. 

1646.  Defects  in  the  title  prior  to  the  mortgage  do  not  excuse 
the  piircliaser  from  carrying  out  his  purchase.  He  is  bound  to  take 
such  title  as  an  examination  of  the  foreclosure  proceedings  will 
show  that  he  will  get.^  He  buys  the  title  of  the  mortgagor  as  it 
existed  at  the  time  of  the  making  of  the  mortgage,  and  nothing 
more.  The  foreclosure  cuts  off  the  equity  of  redemption,  and  by 
the  sale  he  gets  the  mortgage  title  divested  of  all  rights  of  the 
mortgagor,  and  those  claiming  under  him  subsequent  to  the  mort- 
gage. He  takes  the  risk  of  the  mortgagor's  having  any  title  that 
passed  by  the  mortgage.^  It  is  the  duty  of  the  purchaser  to  ascer- 
tain for  himself  by  an  examination  of  the  records  what  title  he  is 
about  to  acquire.-^  If  the  title  by  the  mortgage  purports  to  be  an 
estate  in  fee,  when  it  is  in  fact  only  a  leasehold  interest,  although 
the  judgment,  following  the  terms  of  the  mortgage,  erroneously 
directs  a  sale  of  the  premises  as  in  fee,  the  purchaser  is  bound  by 
the  sale,  if  he  has  notice  at  the  time  of  the  facts,  and  of  the  lease- 
hold title  of  the  mortgagor.  The  sale  under  the  judgment  trans- 
fers whatever  title  the  mortgagor  had.*  The  purchaser  cannot  be 
relieved  on  account  of  defects  in  the  property,  or  in  the  title  to  it, 
of  which  he  had  notice,  and  in  reference  to  which  he  may  be  sup- 
posed to  have  bid.^  He  is  not  entitled  to  get  what  is  called  a  mer- 
chantable title.^ 

A  purchaser  at  a  foreclosure  sale  is  presumed  to  know  the  con- 
dition of  the  title  which  he  purchases.  If  the  mortgage  contains 
no  covenant  of  warranty,  and  the  title  proves  defective,  the  pur- 
chaser has  no  claim  upon  the  mortgagor  to  make  it  good  ;  nor  will 
any  outstanding  and  paramount  title  subsequently  acquired  by  the 
mortgagor  inure  to  the  benefit  of  the  purchaser ;  although,  while 
the  relation  of  mortgagor  and  mortgagee  existed,  a  title  acquired 

1  Boorumj;.  Tucker  (N.  J.),  26  Atl.  Rep.  ing,  18  Pa.  St.  199,  57  Am.  Dec.  .599; 
456;  Campbell  v.  Gardner,  11    N.   J.  Eq.    Lyuch  ?;.  Baxter,  4  Tex.  431. 

423  ;  Cool  V.  Higgins,  23  N.  J.  Eq.  308,  25  3  Norton  r.  Taylor  (Neb.),  53  N.  W.  Rep. 

N.  J.  Eq.  117.  481 ;  Roberts  v.  Hnghes,  81  III.  130;  Vans- 

2  Fryer  u.  Rockefeller,  4  Hun,  800,63  N.  coyocr.  Kimler,  77  111.  151  ;  Riggs  v.  Pur- 
Y.  268;  Riggs  v.  Pursell,*66  N.  Y.  193;  sell,  66  N.  Y.  193;  Preston  v.  Breckinridge, 
Holden  v.  Sackett,  12  Abb.  Pr.  473  ;  Boggs  86  Ky.  619,  6  S.  W.  Rep.  641  ;  White  v. 
V.  Fowler,  16  Cal.  559,  76  Am.  Dec.  561 ;  Seaver,  25  Barb.  235  ;  Eccles  v.  Timmons, 
Strong  V.  Waddell,  56  Ala.  471  ;  Osterberg  95  N.  C.  540  ;  Weber  r.  Herrick  (III.)  26  N. 
V.  Union  Trust  Co.  93  U.  S.  424;  Norton  t?.  E.  Rep.  300;  Dennerlein  v.  Dennerleiu,  111 
Taylor  (Neb.),  .53  N.  W.  Rep.  481  ;  Miller  N.  Y.  518,  19  N.  E.  Rep.  85,  46  Ilun,  561. 
V.  Finn,  1  Neb.  254 ;   Smith  v.  Painter,  5  *  Graham  v.  Bleakie,  2  Daly,  55. 

Serg.  &  R.  223  ;  Vattier  v.  Lytle,  6  Ohio,  ^  ijjggs  y.  Pnrsell,  66  N.  Y.  193,  74  N.  Y. 

477  ;  Lewark  v.  Carter,  117  Ind.  206,  20  N.  371  ;  Van  Rensselaer  v.  Bull,  17  N.  Y.  Supp. 

E.  Rep.  119;  Corwin  v.  Benliam,  2  Ohio  117. 

St.  36  ;  Mason  v.  Wait,  5  111.  127  ;  Bishop  «  Boorum  v.  Tucker  (N.  J.),  26  Atl.  Rep. 

V.  O'Connor,  69  111.  431  ;  Sackett  v.  Twin-  456. 

541 


§  1646  a.]      FORECLOSURE   SALES   UNDER  DECREE   OF   COURT. 

subsequent  to  the  mortgage  would  go  to  strengthen  the  mortgage 
secufity.  When  that  relation  is  extinguished  by  foreclosure,  the 
mortgagor  is  under  no  obligation  to  protect  the  purcliaser's  title. ^ 
So  also  the  purchaser  is  affected  with  notice  of  all  tlie  defects  and 
irregularities  of  the  foreclosure  and  sale  that  appear  of  record,  and 
is  bound  to  take  notice  that  a  junior  mortgagee,  or  other  incum- 
brancer of  record,  was  not  made  a  party  to  the  suit,  and  therefore 
may  redeem.^ 

1646  a.  A  purchaser  wiU  not  be  relieved  by  reason  of  his 
own  mistake,  though  he  will  be  when  misled  by  false  represen- 
tations. The  application  of  a  purchaser  at  a  foreclosure  sale  to  be 
relieved  from  his  bid,  on  the  ground  that  the  wife  of  the  mortgagee 
and  owner  of  the  equity  of  redemption  had  not  been  cut  off  by  the 
foreclosure  proceedings,  was  denied,  although  it  was  admitted  that  the 
latter  would  be  burdened  with  the  wife's  inchoate  right  of  dower.^ 
The  court  said  "that,  although  the  purchaser  acted  under  a  mis- 
take, he  alone  was  responsible  for  it.  He  neither  sought  informa- 
tion nor  examination  by  inquiry.  His  misapprehension  was  entirely 
the  result  of  his  own  carelessness  and  inattention  to  his  interests." 

But  where  a  bill  to  foreclose  was  based  upon  a  mortgage  which 
was  alleged  in  the  bill  to  be  signed  and  acknowledged  by  the  wife, 
and  was  in  fact  signed  by  her,  but  not  effectually  acknowledged, 
though  the  decree  recited  that  the  mortgage  was  not  acknowledged 
by  her,  but  nevertheless  contained  the  usual  clause  of  foreclosure 
against  her,  it  was  held  that  such  a  decree  did  not  bar  her  dower ; 
but  as  it  was  calculated  to  mislead  the  purchaser,  the  sale  would  not 
be  specifically  enforced.^ 

The  purchaser  is  not,  however,  bound  by  his  bid  if  he  was  in- 
duced to  make  it  through  the  false  representations  of  persons  having 
an  interest  in  the  property  ;  as  where  at  a  sale  under  a  junior  mort- 
gage the  purchaser  was  induced  to  buy  the  property  through  the 
false  representations  of  the  attorneys  of  both  the  plaintiff  and  the 
senior  mortgagee  that  the  prior  mortgage  would  be  paid  off  out  of 
the  proceeds  of  the  sale,  and  that  he  would  take  the  property  dis- 
charged of  such  lien.  It  was  held  that  said  false  representations  of 
the  parties  were  sufficient  grounds  for  vacating  the  sale.^ 

1  Jackson  v.  Littell,  56  N.  Y.  108.  van  v.  Jennings,  44  N.  J.   Eq.  11,  14  Atl. 

•2  McKeriian  v.  Neff,  43  Ind.  503  ;  Piel  v.  Kep.    104,  and  Boorum  v.  Tucker  (N.  J.), 

Brayer,  30  Ind.  332,  95  Am.  Dec.  699;  Al-  26  Atl.  Kep.  456,  which  is  the  latest  judi- 

exander  v.  Greenwood,  24  Cal.  505.  cial  expression  on  this  topic. 

3  Hayes    v.    Stiger,    29    N.   J.    Eq.    196.  «  Ely  y.  Perrine,  2  N.  J.  Kq.  396. 

The  same  principle  was  adopted  in  Twin-  ^  Paulett    v.    I'eabody,     3     iSfeh.     196; 

ing  V.  Neil,  38  N.  J.  Eq.  470,  and  in  Sulli-  Frasher  y.  Ingham,  4  ISIeb.  531 ;  Norton  v. 

542 


ENFORCEMENT   OF   SALE   AGAINST   PURCHASER.  [§  1647. 

The  purchaser,  after  having  completed  the  sale  and  paid  over 
the  money,  cannot  call  upon  the  mortgagee  to  make  restitution  of 
any  part  of  it  on  the  ground  that  the  title  has  proved  defective, 
and  the  purchaser  has  been  forced  to  pay  a  further  sum  to  per- 
fect it.  His  only  remedy  is  to  avail  himself  of  the  covenants  of 
the  several  conveyances  preceding  the  conveyance  to  the  mort- 
gagee.i 

1647.  Errors  in  the  decree  or  in  the  proceedings  under  it 
afford  no  ground  for  relieving  the  purchaser  from  the  sale  after 
its  confirmation.^  Of  course  the  purchaser  may  take  objection, 
even  after  confirmation,  to  a  defect  arising  from  a  want  of  juris- 
diction in  the  court ;  ^  but  he  need  not  look  further  tiian  to  the 
judgment,  and  the  deed  given  in  execution  of  it,  so  long  as  they 
stand  unimpeached.  Erroneous  rulings  in  the  case  upon  ques- 
tions of  law  do  not  concern  him.^  Even  if  the  decree  be  erro- 
neous, it  cannot  be  attacked  collaterally.^  After  a  decree,  and  sale 
under  it,  the  validity  of  the  mortgage  cannot  again  be  called  in 
question.^  If  the  decree  was  valid,  and  the  execution  and  deed 
are  regular,  a  purchaser  in  good  faith  acquires  a  good  title  to  the 
property,  although,  as  against  the  mortgagor,  the  decree  was  erro- 
neous.'^ 

A  purchaser,  however,  under  the  foreclosure  of  an  unregistered 
mortgage,  is  not  such  a  bond  fide  purchaser  as  to  acquire  any 
rights  against  one  who  had  taken  a  conveyance  from  the  mort- 
gagor after  the  mortgage  and  before  foreclosure,  and  who  was  in 

Taylor  (Neb.),  53  N.  W.  Rep.  481.  Max-  Sowles  v.  Harvey,  20  Ind.217;  Hutchinson 
well,  C.  J.,  delivering  a  dissenting  opinion  v.  Wall,  24  J.  &  S.  104,  4  N.  Y.  Supp.  717. 
on  other  points,  upon  tiiis  point  says:  One  of  the  defendants  in  a  foreclosure  suit, 
"  Misrepresentations  which,  if  made  by  the  after  default  had  Ijeen  entered  and  a  sale 
landowner  himself  to  a  purchaser,  would  be  advertised,  moved  to  open  the  default ;  but 
good  ground  to  set  a  sale  aside,  are  equally  it  was  subsequently  agreed  that  tlie  sale 
so  when  made  by  the  person  appointed  by  should  proceed,  and  that  this  defendant 
tlie  court  to  conduct  a  sale  under  a  decree;  might  make  claim  against  the  proceeds, 
and  experience  has  shown  that  the  estab-  The  sale  was  accordingly  made,  and  the  de- 
lishment  of  this  rule  has  induced  competi-  fault  was  afterwards  opened  to  alluw  the 
tion  in  bidding  at  such  sales."  Citing  Mc-  defendant  to  set  up  his  claim  to  the  pro- 
Gown  V,  Wilkins,  1  Paige,  120;  Morris  v.  ceeds.  It  was  held  that  this  order  did  not 
Mowatt,  2  Paige,  586;  Veeder  i;.  Fonda,  3  affect  the  sale  or  relieve  the  purchaser  there- 
Paige,  94 ;  Seaman  v.  Hicks,  8  Paige,  655 ;  from.  Waugh  v.  Bailey,  4  N.  Y.  ISupp. 
Kauffman  v.  Walker,  9  Md.  229  ;  Tooley  v.  817. 
Kane,  Sniede  &  M.  (Miss.)  Ch.  518.  3  Boggs  v.  Fowler,  16  Cal.  559,  76  Am. 

1  McMurray  v.  Brasfitld,  10  Heisk.  529.  Dec.  561. 

2  Worsham  i;.  Hardaway,  5    Gratt.  60;  *  Mills  y.  Ralston,  10  Ivans.  206. 
Threlkelds   v.  Campbell,  2  Gratt.   198,  44  ^  Qgden  v.  Walters,  12  Kaiis.  282. 
Am.  Dec.  384;  Daniel  v.  Leitch,  13   Gratt.  6  Gest  v.  Flock,  2  N.  J.  Kq.  108. 
195;    Splahn  v.   Gillespie,   48     Ind.    397;  ^  Splahn  t>.  Gillespie,  48  lud.  397. 

643 


§  1648.]        FORECLOSURE   SALES   UNDER   DEGREE   OF   COURT. 

possession  at  the  time  of  the  foreclosure  sale.^  Although  the 
mortgage  has  been  paid  but  left  undischarged  of  record,  one  pur- 
chasing in  good  faith  at  a  foreclosure  sale  under  the  mortgage 
acquires  a  good  title  as  against  the  mortgagor  and  those  claiming 
under  him.^ 

1648.  Reference  as  to  title.  —  While  the  purchaser  under  a 
judicial  sale  submits  himself  to  the  jurisdiction  of  the  court,  and 
may  be  compelled  to  carry  out  his  contract,  he  is  also  entitled  to 
the  protection  of  the  court  in  respect  to  the  avoidance  of  the  pur- 
chase, if  by  reason  of  imperfections  in  the  title  or  otherwise  he 
is  freed  from  his  agreement.^  He  may  apply  for  a  reference  to 
inquire  into  the  title.  The  abstract  of  title  and  deeds  and  the 
statement  of  facts  being  laid  before  the  referee,  the  purchaser  may 
examine  them  and  file  objections.  If  the  report  be  against  the 
title,  the  purchaser  may  move  to  be  discharged,  and  for  a  return  of 
his  deposit  and  for  costs.'*  It  is  well  settled  that,  if  there  be  a  rea- 
sonable doubt  as  to  the  soundness  of  the  title,  the  court  will  not 
compel  the  purchaser  to  complete  the  purchase,  even  if  the  better 
opinion  be  that  the  title  is  good.^ 

If  the  master,  upon  examination  of  the  abstract  of  title,  and 
the  facts  bearing  upon  it,  reports  that  the  title  is  defective  or  doubt- 
ful, the  purchaser  may  upon  motion  be  discharged,  and  have  an 
order  for  the  repayment  of  his  deposit  and  for  the  costs  of  the  ref- 
erence.^ He  will  not,  of  course,  be  compelled  to  complete  the  pur- 
chase if  the  proceedings  for  any  reason  were  void,  as  for  want  of 
jurisdiction  in  the  court  to  entertain  the  case ;  or  if  a  party  in  in- 
terest, as,  for  instance,  one  tenant  in  common  of  the  premises,  has 
not  been  served  with  process  ; "  or  if  an  incumbrancer  is  not  made 
a  party  to  the  suit.^  A  bidder's  liability  is  terminated  if  the  sale 
is  not  reported  to  the  court,  or  approved  when  reported ;  or  if  the 
master  sells  the  property  again  on  his  own  responsibility,  and  this 
sale  is  approved  by  tiie  court.^ 

If  the  defect  in  the  title  be  such  that  it  may  be  cured,  and 
within  a  reasonable  time  releases  are  obtained  or  other  acts  done 
to  remedy  the  defect,  the  purchaser  cannot  refuse  to  complete 
the  purchase.^o     On  the  other  hand,  delay  in   taking  the  deed  on 

1  Hawley  v.  Bennett,  5  Paige,  104.  "  Graham  v.  Bleakie,  2  Daly,  55.     Ami 

2  Atwater  v.  Sevmour,  Biajt.  209.  see  Ormsby  r.  Terry,  6  Bush,  553. 

3  Hoffman's  Referees,  240.  '  Cook  v.  Farnham,  21   How.  Pr.  280,  .34 
•i  Hoffman's  Referees,  241,  242.  Barb.  95, 12  Abb.  Pr.  359. 

5  Abel    V.    Heathcote,    2  Ves.,  98,  100;  ^  Verdin  v.  Slocum,  71  N.  Y.  345. 

Siapvlton  V.   Scott,    16  Ves.  272  ;  Piser  v.  ^  Dills  t;.  Jasper,  33  111.  262. 

Lockwood,  30  Hun,  6.  ^"  Graham  v.  Bleakie,  2  Daly,  55.  In  Cof- 
644 


ENFORCEMENT   OF   SALE   AGAINST   PURCHASER.       [§§  1G49,  1650. 

account  of  defects  in  the  title,  all  the  parties  apparently  acquies- 
cing and  the  purchaser  liolding  possession,  is  no  ground  for  the 
mortgagor's  claiming  a  right  to  redeem,  and  to  have  an  accounting 
by  the  purchaser  for  the  rents  received  by  him.^ 

If,  however,  a  party  in  interest  has  not  been  made  a  party  to  the 
suit,  though  this  is  a  ground  upon  which  the  purchaser  may  be 
relieved  from  his  purchase,  he  cannot  hold  on  to  it,  and  insist  upon 
having  his  title  perfected  by  the  application  of  the  proceeds  of  the 
sale  to  the  payment  of  the  outstanding  claim.^ 

1649.  Taxes.  —  Neither  will  a  purchaser  be  required  to  com- 
plete the  purchase  when  he  will  not  obtain  such  an  interest  in 
the  property  as  he  had  a  right  to  suppose  from  the  terms  of  sale 
he  was  buying.^  Where  by  the  terms  of  sale  the  premises  are 
sold  free  from  incumbrances,  the  taxes  and  assessments  to  be  paid 
out  of  the  purchase-mone}^  and  there  is  a  large  assessment  still 
unconfirmed  by  the  municipal  authorities,  and  which  cannot  be 
paid,  the  purchaser  is  not  bound  to  complete  the  purchase  and 
take  the  property  subject  to  the  assessment.'*  If,  liowever,  the 
property  can  be  relieved  of  incumbrance  by  payment  of  the  tax, 
the  court  may  direct  the  master  to  satisfy  the  claim  out  of  the 
proceeds  of  sale,  and  thus  relieve  the  title  from  the  objection.^ 

The  purchaser  himself  cannot  retain  from  his  bid  a  sum  sufficient 
to  pay  the  taxes.^ 

1650.  A  purchaser  may  by  his  conduct  preclude  the  open- 
ing of  the  sale.  If,  during  the  progress  of  a  foreclosure  sale,  he 
has  announced  to  the  other  bidders  that  he  had  prior  incumbrances 
on  the  property,  and  that  the  sale  would  be  made  subject  to  these, 
he  cannot  consistently  ask  to  be  relieved  from  his  own  bid,  on  the 
ground  that  he  supposed  he  would  be  entitled  to  have  the  surplus 
money  applied  to  the  payment  of  his  prior  incumbrances.  He 
must  be  presumed  to  understand  that  if  others  on  his  own  an- 
nouncement were  bidding  for  the  property,  subject  to  the  incum- 
brances, he  was  competing  with  them  on  equal  terms. ^ 

A  purchaser  may  also  by  his  own  conduct  with  reference  to  the 
property  practically  confirm  a  sale,  so  as  to  preclude  himself  from 

fin  V.  Cooper,  14  Vesey,  205,  Lord  Chan-        ^  Seaman  v.  Hicks,  8  Paige,  655. 

cellor  Eldon  said  :  "  Where  the  master's  re-        *  Post  v.  Leet,  8  Paige,  337.  See,  also, 

port  is,  that  the  vendor,  getting  in  a  term,  Easton  v.  Pickersgill,  55  N.  Y.  310. 

or  getting  administration,  will  have  a  title,        ^  Lawrence  v.  Cornell,  4  Johns.  Ch.  542. 

the  court  will  put  him  under  terms  to  pro-        *  Osterherg  v.  Union  Trust  Co.  93  U.  S. 

cure  that  speedily."  424. 

1  Belter  y.Lyon,  13  Daly,  422.  ^  §§  1643,  1929;  Ledyard  v.  Phillips,  32 

2  Duvall  V.  Speed,  1  Md.  Ch.  Dec.  229,  Mich.  13. 
235. 

VOL.  II.  35  545 


§§  1651-1653.]       FORECLOSURE   SALES   UNDER    DECREE    OF   COURT. 

having  the  sale  opened ;  as  where  he  has  taken  possession  of  the 
premises  under  a  claim  of  title  derived  from  the  sale,  paid  laborers 
for  vrork  upon  them,  and  made  arrangements  for  planting  crops  for 
the  following  year.^ 

1651.  An  irregularity  in  the  foreclosure  proceedings  which 
is  merely  formal,  and  cannot  result  in  injury  to  the  purchaser,  is 
no  ground  for  his  refusing  to  complete  the  purchase  ;  and  if  on  his 
refusal  to  complete  the  purchase  a  resale  is  ordered,  he  is  chargeable 
with  the  expenses  of  it.^  The  purchaser  has  a  right  to  insist  upon 
the  terms  of  his  purchase  being  complied  with.  Where  by  figree- 
ment  of  the  parties  the  referee  sold  the  premises  on  time,  the  pur- 
chaser cannot  be  compelled  to  pay  cash.^ 

Judicial  sales  must  be  conducted  with  the  utmost  fairness  and 
good  faith  ;  and  if  a  purchaser  at  a  sale  under  a  decree  of  fore- 
closure of  a  junior  mortgage  is  by  false  representations  induced  to 
believe  that  the  proceeds  of  the  sale  will  be  applied  to  payment  of 
the  prior  mortgage,  and  that  he  would  take  a  clear  title,  the  sale 
will  be  set  aside ;  "*  and  so  also  it  will  be  set  aside  where  the  pur- 
chaser thought  he  was  buying  an  absolute  title  to  the  land,  and  not 
one  subject  to  the  first  mortgage.^ 

VII.   The  Deed,  and  passing  of  Title. 

1652.  It  is  a  recognized  practice  to  allow  another  person  to 
be  substituted  for  the  purchaser,  and  to  take  the  deed  directly  to 
himself.^  Any  equitable  rights  or  liens  acquired  by  third  persons 
against  the  original  purchaser  before  the  assignment  are  protected. 
Where  the  original  purchaser  had  entered  into  a  contract  of  sale  of 
the  premises  with  another,  and  had  died,  in  the  absence  of  his  heir 
the  court  ordered  a  conveyance  to  the  substituted  purchaser,  and 
the  payment  of  the  money  into  court.'' 

If  the  purchase  be  made  by  a  third  person  for  the  mortgagor, 
who  pays  the  price,  the  mortgagor  is  entitled  to  a  release  of  the 
mortgage  upon  tendering  the  deed  to  be  signed.^ 

1653.  Delivery  of  deed.  —  The   master's  deed   passes   the  title 

1  Ledyard  v.  Phillips,  32  Mich.  13.  on  Jud.  Sales,  145  ;  Ehleringer  i\  Moriartv, 

2  Knight  V.  Moloney,  4  Ilun,  33;  Far-  10  Iowa,  78;  McCluie  v.  Englehardt,  17 
mers'  Loan  &  Trust  Co.  v.  Bankers'  &  Mer-  111.  47 ;  Splahn  v.  Gillespie,  48  Ind.  397  ; 
chants'  Tel.  Co.  119  N.  Y.  1.5,  23  N.  E.  Rep.  Cnlver  v.  McKeown,  43  Mich.  322,  5  N.  W. 
173.  Eep.  422;  Bensieck  v.  Cook,  110  Mo.  173, 

3  Rhodes  v.  Dutcher,  6  Hun,  453.  19  S.  W.  Rep.  642 ;  Massey  v.  Young,  73 
*  Paulett  V.  Peabody,  3  Neb.  196.                  Mo.  260. 

5  Shiveley  v.  Jones,  6  B.  Mon.  274.     See        ''  Pearce  v.  Pearce,  7  Sim.  138. 
Vandcrkemp  v.  Shelton,  11  Paige,  28.  »  gush  v.  Macklin,  87  Ky.  482,  9  S.  W. 

6  Proctor  V.  Farnam,  5  Paige,  619  :  Rorcr    Rep.  420. 

546 


THE   DEED,    AND   PASSING    OF    TITLE.  [§  1653. 

to  the  purchaser  at  the  moment  of  delivery,  though  the  sale  has 
not  been  confirmed.^  From  that  time  the  property  is  at  his  risk, 
and  having  accepted  the  deed  he  cannot  repudiate  the  contract.^ 
From  that  time,  and  from  that  time  only,  the  co-tenancy  of  a  pur- 
chaser of  the  interest  of  a  tenant  in  common  sold  on  foreclosure 
commences,  with  the  liability  of  accounting  for  rents  and  profits, 
repairs  and  improvements.^  The  holder  of  the  deed  has  prima 
facie  a  valid  title  to  the  land  described  in  it.*  In  England  the 
practice  is  to  withhold  the  deed  until  the  final  order  confirming 
the  sale  is  made  absolute,  but  the  confirmation  relates  back  to 
the  delivery  of  the  deed,  and  gives  it  effect  from  that  time.°  The 
practice  in  this  country  in  this  regard  is  not  uniform.  The  better 
practice  is  to  i*eport  the  sale  and  obtain  a  confirmation  of  it  before 
the  delivery  of  the  deed  ;  but  in  some  States,  and  especially  in 
those  in  which  a  time  for  redemption  is  allowed  after  the  sale,  it 
is  the  practice  to  delay  the  report  until  the  deed  is  executed  and 
delivered.*^  If  in  such  case  the  mortgagor  delays  to  move  for  the 
filing  of  the  report  and  the  setting  aside  of  the  sale  until  the  deed 
is  delivered,  he  is  regarded  as  waiving  all  objections  to  the  sale 
which  are  merely  formal.'' 

When  a  judgment  in  foreclosure  provides  that  the  purchaser 
shall  be  let  into  possession  upon  production  of  the  referee's  deed, 
the  purchaser  acquires  no  title  or  right  of  possession  until  the  de- 
livery of  the  deed  to  him,  and  therefore  he  is  not  entitled  to  the 
rents  from  the  time  of  sale  by  relation  back,  although  he  is  charged 
with  interest  on  the  purchase-money  from  that  time  ;  until  the  deed 
is  given,  the  owner  of  the  equity  is  entitled  to  the  possession  of  the 
land  and  to  the  rents. ^  Upon  the  delivery  of  the  deed  the  pur- 
chaser is  entitled  to  the  proper  process  of  court  for  the  delivery  of 
possession  to  him  as  against  all  the  defendants  who  were  before  the 
court.^  When  consummated  by  the  deed,  the  sale  passes  as  against 
them  the  entire  estate  held  by  the  mortgagor,  whatever  it  may  have 

^  Fuller  V.  Von  Geeseu,  4  Hill,  171,  4  nois  this  was  the  practice  before  the  enact 
How.  Pr.  182;  Fort  v.  Burch,  6  Barb.  60;  ment  allowing  redemption  after  the  sale. 
Mitchell  V.  Bartlett,  51  N.  Y.  447,  52  Barb.  But  since  this  statute  the  report  is  not 
319.  For  form  of  sheriff 's  or  referee's  deed  generally  made  until  after  the  deed  is  exc- 
used in  New  York,  see  5  Wait's  Prac.  225,  cuted  and  delivered,  and  sometimes  it  is 
226.  never  reported  and  confirmed  at  all. 

2  Jones  );.  Burden,  20  Ala.  382.  '^  Walker  v.  Schum,  42  HI.  462;  Fergus 

"  Davis  V.  Chapman,  36  Fed.  Rep.  42.  v.  Woodworth,  44  111.  374,  379. 

*  Jackson  v.  Warren,  32  111.  331  ;  Simer-  «  Mitchell  y.  Bartlett,  51  N.  Y.  447.     See, 

son  ?;.  Branch  Bank,  12  Ala.  205.  to  the  contrary,  however,  Lathrop  v.  Nelson, 

^  Ex  parte  Minor,  11  Vcs.  559.  4  Dill.  194. 

*>  Walker  v.  Schum,  42  111.  462.     In  Illi-  «  P'risbie  v.  Fogarty,  34  Cal.  II. 

647 


§  1654.]        FORECLOSURE   SALES   UNDER  DECREE   OF   COURT. 

been  at  the  date  of  the  mortgage ;  and  the  purchaser  is  entitled  upon 
the  receipt  of  his  deed  to  the  possession  of  the  premises,  even  though 
the  plaintiff  pending  the  action  has  conveyed  the  property  to  one 
of  the  defendants.^  If  the  mortgagee  be  the  purchaser,  and  before 
a  deed  is  made  receives  from  the  mortgagor  the  amount  of  the  de- 
cree, the  sale  and  confirmation  under  it  are  rendered  void.^ 

Whether  the  death  of  the  mortgagor,  a  party  to  the  foreclosure 
suit,  after  the  decree  and  sale  under  it,  but  before  the  officer  charged 
with  the  execution  of  the  decree  has  executed  and  delivered  the 
deed,  affects  the  title  under  the  sale,  is  a  question  upon  which  the 
Supreme  Court  of  Michigan  was  equally  divided.  It  would  seem, 
however,  that  the  death  of  the  mortgagor  at  that  stage  of  the  pro- 
ceedings would  not  affect  the  subsequent  confirmation  of  the  offi- 
cer's report  and  his  delivery  of  the  deed.^ 

1654.  As  the  title  of  the  purchaser  relates  back  to  the  time 
of  the  execution  of  the  mortgage,  it  does  not  matter  to  him  what 
disposition  the  mortgagor  may  afterwards  have  made  of  the  prop- 
erty if  the  foreclosure  is  perfect.  All  conditions  and  reservations 
and  easements,  as  well  as  all  incumbrances  or  liens,  he  may  have 
afterwards  imposed  upon  the  property,  are  extinguished.*  A  pur- 
chaser at  a  foreclosure  sale  takes  title  free  of  an  easement  upon  a 
part  of  the  mortgaged  land  used  by  the  mortgagor  at  the  time  the 
mortgage  was  executed,  but  not  reserved  in  the  mortgage.  It  may  be 
presumed  that  the  easement  was  abandoned  by  the  mortgagor  when 
he  omitted  to  mention  or  reserve  it  from  the  operation  of  the  mort- 
gage.^ In  this  respect  the  purchaser's  rights  are  the  same  whether 
the  sale  be  under  a  decree  of  a  court  of  equity,  under  a  judgment 
in  scire  facias,  or  under  a  power  in  the  mortgage  or  trust  deed. 
The  title  takes  effect  by  virtue  of  the  original  deed  ;  the  sale  car- 
ries that  title,  and  cuts  off  all  liens  and  interests  created  subsequent 
to  the  mortgage.^  The  mortgagee  is  not  bound  by  judgments  or 
decrees  affecting  the  mortgaged  property  rendered  in  suits  begun  by 
third  persons  after  the  execution  of  the  mortgage,  unless  the  mort- 
gagee is  made  a  party  to  it,  and  the  rights  of  a  purchaser  at  a  fore- 
closure sale  are  the  same  as  those  of  the  mortgagee,  and  relate  back 

1  Montgomery  2;.Middlemiss,  21  Cal.  103;  First  Nat.  Bank,  43  Mich.  192;  Gamble  v. 
Belloc  V.  Rogers,  9  Cal.  123,  125.  Horr,  40  Mich.  .561 ;  Bull's  petition,  15  R.  L 

2  Applegate  v.  Kingman,  17  Neb.  338,  22    534,  10  Atl.  Rep.  484. 

N.  W.  Rep.  765.  »  Wells  v.  Garbuit,  132  N.  Y.  430,  30  N. 

3  Hochgraef  v.  Hendrie,  66  Mich.  556,34    E.  Rep.  978. 

N.  W.  Rep.  15.  c  Champion  v.  Hinkle,  45  N.  J.  Eq.  162, 

1  King  V.  McCuUy,  38  Pa.  St.  76  ;  Davis  16  Atl.  Rep.  701  ;   Rector  v.  Mack,  93  N.  Y. 

V.  Conn.  Mat.  Life   Ins.    Co.  84  111.  508;  488;  Pardee  u.  Steward,  37  Hun,  259. 
Shaw  V.  Heisey,  84  Iowa,  468  ;  Ruggles  v. 

548 


THE   DEED,   AND   PASSING   OF   TITLE.  [§  1654. 

• 

to  the  mortgage.  The  purchaser  becomes  privy  in  estate  with  tlie 
mortgagee  and  not  with  the  mortgagor,  except  in  respect  to  the 
estate  as  it  existed  when  the  mortgage  was  executed.^ 

Title  acquired  by  foreclosure  relates  back  to  the  date  of  the  mort- 
gage, so  as  to  cut  off  intervening  equities  and  rights.  If  all  subse- 
quent purchasers  and  incumbrancers  are  made  parties  to  the  bill, 
the  title  under  the  mortgage  foreclosed  is  perfected  to  an  absolute 
one.  In  such  case  the  purchaser  acquires  the  title  of  the  mortga- 
gee, and  also  the  title  of  the  mortgagor  as  it  stood  at  the  time  of 
the  making  of  the  mortgage.^  If  the  mortgage  was  of  an  undivided 
interest  in  common  with  others,  the  purchaser  acquires  the  same 
interest.^  He  obtains  the  title  of  all  the  parties  to  the  suit,  whether 
their  title  be  that  which  is  set  forth  in  the  bill  or  not.  Whatever 
the  title  of  the  parties  to  the  suit  may  be,  that  is  what  the  court 
undertakes  to  sell,  and  what  the  purchaser  is  entitled  to  have  con- 
veyed to  him.^  The  fact  that  the  purchaser  at  a  foreclosure  sale 
under  a  first  mortgage  had  previously  bought  the  equity  subject  to 
a  second  mortgage,  which  he  did  not  expressly  stipulate  to  pay,  does 
not  prevent  his  acquiring  a  perfect  title  against  that  mortgage  by 
the  purchase,^  The  mortgagor  is  estopped  from  denying  the  title 
he  has  set  forth  in  his  mortgage,^  and  all  the  parties  to  the  foreclos- 
ure suit  are  estopped  from  disputing  the  title  acquired  by  the  pur- 
chaser under  the  sale.''^  The  purchaser  occupies  the  same  position, 
as  to  the  priority  of  claims  or  liens  on  the  property,  that  the  mort- 
gagee did.^ 

If  the  mortgage  was  a  forgery,  and   the  persons  purporting  to 

1  Secor  V.  Singleton,  41  Ted.  Rep.  725;  &  T.  I.  Co.  12  Oreg.  474;  Baldwin  v.  IIow- 

Mathes  r.  Cover,  43  Iowa,  512.  ell,   45   N.  J.   Eq.  519,  15  All.  Rep.  236; 

-  Ritger  v.  Parker,  8  Cush.  Mass.   145;  Tant  v.  Guess,  37  S.  C.  489,  16  S.  E.  Rep. 

Brown  v.  Tyler,  8  Gra}',  135,  69  Am.  Dec.  474. 

239;    Marston    v.    Marston,   45    Me.   412;  3  Mahoney  v.  Middleton,  41  Cal.  41. 

Haynes  v.  Wellington,  25  Me.  458  ;  Taylor  «  Zollman  v.  Moore,  21  Gratt.  (Va.)  313; 

V.  Kearn,  68  111.  339;  Vroom  i;.  Ditnias,  4  Gillett  v.  Eaton,    6   Wis.   30;  Tallman    v. 

Paige,  526,  531  ;  Christ  Church  j;.  Mack,  93  Ely,   6    Wis.   244;    Dutro    v.   Kennedy,    9 

N.   Y.   488;  Slattery   v.   Schwannecke,  44  Mont.  101,  22    Pac.    Rep.  763;   Mount  v. 

Hun,  75  ;  Wells  v.  Garbutt,  1 32  N.  Y.  430, 30  Manhattan  Co.  43  N.  J.  Eq.  25,  9  Atl.  Rep. 

N.  E.  Rep.  978  ;  McMillan  v.  Richards,  9  Cal.  114;  Young  i'.. Brand,  15  Neb.  601,  quoting 

365,  70  Am.  Dec.  655;   Poweshiek    Co.  v.  text. 

Dennison,  36  Iowa,  244,  14  Am.  Rep.  521  ;  ^  Brown  v.  Winter,  14  Cal.  31. 

Carter  v.  Walker,  2  Ohio  St.  339  ;  Frische  ^  Vallejo  Land  Asso.  v.  Viera,   48  Cal. 

V.  Kramer,  16  Ohio,-125,  47  Am.  Dec.  368  ;  572. 

Hodson  j;.  Treat,  7  Wis.  2G3  ;  De  Haven  y.  ^  McGee   v.  Smith,    16  N.  J.   Eq.  462; 

Landell,  31  Pa.  St.  120;  West  Branch  Bank  White  v.  Evans,  47  Barb.  179;  Holden  v. 

V.  Chester,  11  Pa.  St.  282,  51  Am.  Dec.  547 ;  Sackett,  12  Abb.  Pr.  473. 

Hamilton  v.  State,  1   Ind.  128;  Sellwood  v.  ^  Davis  v.  Conn.  Mut.  Life  Ins.  Co.  84 

Gray,  11  Greg.  534;  Watson  v.  Dundee  M.  111.  508. 

549 


§§  1655, 1656.]      FORECLOSURE  SALES   UNDER   DECREE   OF   COURT. 

have  executed  the  same  were  not  served  by  process  in  the  foreclosure 
suit,  the  purchaser  at  the  foreclosure  sale  acquired  no  title,  and  the 
land  may  be  recovered  from  him  in  an  action  of  ejectment  by  the 
rightful  owners. 1 

After  a  foreclosure  sale  a  mortgagee  has  no  such  ownership  of 
the  property  as  will  enable  him  to  charge  the  premises  with  a  lien 
for  labor  done  and  materials  furnished.^ 

The  purchaser  acquires  the  benefit  of  a  covenant  of  warranty 
contained  in  the  deed  conveying  the  property  to  the  mortgagor, 
and  may  recover  for  a  breach  of  it.^ 

1655.  Errors  in  deed.  —  If  the  master's  deed  by  inadvertence 
embraces  the  whole  mortgaged  premises,  of  which  a  portion  had 
been  released  from  the  operation  of  the  mortgage  and  was  excepted 
from  the  operation  of  the  decree,  no  title  to  the  released  portion 
passes  to  tlie  purchaser.^  Even  if  this  portion  of  the  premises  had 
been  embraced  in  the  decree,  but  were  not  offered  at  the  sale,  the 
title  would  not  pass  by  the  conveyance.^ 

Where  a  mortgage,  by  reason  of  an  error  in  the  description, 
did  not  cover  the  entire  tract  intended  to  be  mortgaged,  and  the 
error  was  first  discovered  after  a  foreclosure  sale  and  conveyance 
to  a  purchaser  who  supposed  he  was  buying  the  whole  tract,  he 
was  protected  in  the  possession  of  the  whole.^  Usually,  however, 
the  property  to  which  the  purchaser  acquires  title  is  coextensive 
with  the  description  contained  in  the  mortgage,  the  bill  to  fore- 
close, and  the  order  or  writ  under  which  the  sale  is  made.'^ 

After  the  sale  is  completed  and  the  money  paid  over  by  the 
purchaser,  he  cannot  have  the  sale  set  aside  and  the  money  re- 
paid by  reason  of  a  mistake  in  the  mortgage  deed,  whereby  land 
not  belonging  to  the  mortgagor  was  described  instead  of  his  own 
land.^ 

1656.  After-acquired  title.  —  Ordinarily  the  title  ordered  to  be 
sold  is  only  the  title  which  was  held  by  the  mortgagor  at  the  date 
of  the  mortgage.^  But  a  title  subsequently  acquired  by  the  mort- 
gagor will  generally  be  subjected  to  the  lien  of  the  mortgage  when 
that  contains  full  covenants  of  warranty,^"  even  if  it  was  given  to 

1  Pray  v.  Jenkins,  47  Kans.  599,  28  Pac.        ^  Waldron  v.  Letson,  15  N.  J.  Eq.  126. 
Rep.  716.  ■?  McGee  v.  Smith,  16  N.  J.  Eq.  462. 

2  Davis  V.  Conn.  Mut.  Life  Ins.  Co.  84  ^  Nealr.  Gillaspy,  56  Ind.  451,  26  Am. 
111.  508.  Kep.  37. 

3  Mygatt  V.  Coe,  44  Hun,  31.  ^  San  Francisco  i;.  Lawton,  18  Cal.  465, 
*  Laverty  v.  Moore,  32  Barb.  347.                 79  Am.  Dee.  187. 

5  Laverty  v.  Moore,  33  N.  Y.  658,  affirm-  "  Bybee  v.  Hageman,  66  111.  519  ;  Hag- 
ing  the  above.  gerty  v.   Byrne,  75   lud.  499;  Bray  ton  v. 

550 


THE   DEED,    AND   PASSING    OF   TITLE.  [§  1657. 

secure  the  pnrcbase-money  of  land,  the  title  of  which  proves  defec- 
tive and  the  mortgagor  makes  it  good  from  another  source,  the 
mortgagee  having  conveyed  to  him  without  covenants  and  without 
fraud  ;  ^  and  even  a  title  acquired  by  a  purchaser  from  the  mortga- 
gor after  his  purchase  may,  under  equitable  circumstances,  be  sub- 
jected to  the  lien  in  the  same  manner.  But  in  order  to  subject 
such  after-acquired  title  to  sale,  the  facts  should  be  set  forth  in 
the  complaint,  and  the  decree  should  expressly  cover  the  after- 
acquii'ed  title.^ 

A  title  acquired  by  the  owner  under  a  tax  sale  before  the  sale 
under  the  mortgage  passes  to  the  purchaser.  This  rule  holds  good 
even  in  case  the  assessment  on  which  the  taxes  were  levied  was 
made  after  the  decree  of  foreclosure,  where  the  foreclosure  sale  was 
made  after  the  tax  sale  ;  for  it  is  the  duty  of  the  person  who  was 
the  owner  at  the  time  the  taxes  were  levied,  and  became  payable,  to 
pay  them.^ 

1657.  Fixtures.  —  The  purchaser's  deed  taking  effect  by  rela- 
tion at  the  date  of  the  mortgage  passes  the  property  as  it  then 
was,  with  all  fixtures  subsequently  annexed  by  the  mortgagor,  such 
as  an  engine  and  boilers  used  in  a  flour-mill  and  permanently  at- 
tached to  the  premises.'*  The  rule,  that  whatever  is  fixed  to  the 
freehold  becomes  a  part  of  it,  applies  as  strictly  between  the  mort- 
gagor and  mortgagee  as  between  vendor  and  vendee.^  The  court 
may  in  the  foreclosure  suit,  before  entering  a  decree  of  sale,  deter- 
mine whether  a  building,  removed  from  the  mortgaged  land  and 
sold,  is  still  subject  to  the  lien.*^  The  purchaser  acquires  title  to 
the  fixtures  as  a  part  of  the  realty.  If  they  are  wrongfully  severed 
by  any  one  after  the  sale,  though  before  the  execution  of  a  deed  to 
the  purchaser,  he  may  sue  for  them  in  trover,  take  them  by  replevin,'^ 
may  recover  damages  in  an  action  of  waste,^  or  may  enjoin  their 
removal.^  A  mortgagee  who  comes  into  possession  of  the  premises, 
by  virtue  of  a  decree  of  strict  foreclosure,  acquires  title  to  a  barn 

Merithew,  50  Midi.  166,22  N.  W.  Rep.  2.59;  *  See  §§  428-452;  Sands  v.  Pfeiffer,  10 

Rice  V.   Kelso,  57  Iowa,  115,  7  N.  W.  Rep.  Cal.  258. 

3,  10  N.  W.  Rep.  335  ;  Laud  Asso.  i'.  Viera,  ^  Gardner  v.  Finley,  19  Barb.  317  ;  Du- 

48  Cal.  572.  tro  v.  Kennedy,  9  Mont.  101,  22  Pac.  Rep. 

1  Hitchcock  f.Fortier,  65  111.  239.  Other-  763. 

wise  where  the  mortgage  contained  no  cove-  ^g   1446;    Partridge    v.  Henienway,   89 

nants  of    warranty.     Smith  v.  De    Ru.ssy,  Mich.  454,  50  N.  W.  Rep.  1034. 

29  N.  J.  Eq.  407.  ''  §§  453-455. 

2  Kreichbaum  v.  Melton,  49  Cal.  .50.  ^  Lackas  v.  Bahl,  43  Wis.  53. 

2  Barnard  u.  Wilson,  74  Cal.  512,  16  Pac.        ^  Dutro   v.    Kennedy,  9    Mout.  101,    22 
Rep.  307.  Pac.  Rep.  763. 

551 


§  1658.]         FORECLOSURE   SALES   UNDER   DECREE   OF   COURT. 


erected  on  the  premises  during  the  pendency  of  the  foreclosure  suit 
by  a  stranger  with  permission  of  the  mortgagor,^ 

1658.  The  purchaser  is  entitled  to  the  crops  growing  at  the 
time  of  the  sale  to  him,  in  preference  to  the  mortgagor  or  any  one 
claiming  under  him  whose  claim  originated  subsequently  to  the 
mortgage ;  ^  and  he  is  entitled  in  preference  to  one  who  bids  off 
the  property  at  a  sale  subsequently  made  by  the  assignee  in  bank- 
ruptcy of  the  mortgagor.^  After  the  sale,  while  awaiting  confirma- 
tion thereof,  and  a  delivery  of  the  deed  and  possession,  the  purchaser 
may,  it  seems,  upon  application  to  the  court,  have  an  injunction 
restraining  the  mortgagor  and  others  claiming  under  him  from  med- 
dling with  the  crops.*  Before  confirmation  the  purchaser's  title  is 
not  sufficient  to  enable  him  to  maintain  replevin  for  crops  that  have 
been  severed  by  the  person  in  possession.^  The  confirmation  of  the 
sale  relates  back  to  the  sale,  and  entitles  the  purchaser  to  the  crops 
from  that  time  if  no  equities  prevent  and  due  notice  has  been  given 
to  interested  parties.^  If,  however,  the  growing  crop  be  expressly 
reserved  at  the  sale,  it  having  been  previously  sold  by  the  mortga- 
gee as  administrator  of  the  mortgagor,  the  purchaser  acquires  no 


1  Preston  v.  Briggs,  16  Vt.  124. 

2  §697;  Shepard  v.  Philbrick,  2  Den, 
174  ;  Jones  v.  Thomas,  8  Blackf.  428  ;  Lane 
V.  King,  8  Wend.  584,24  Am.  Dec.  105; 
Batterman  v.  Albright,  122  N.  Y.  484,  25 
N.  E.  Rep.  856;  Crews  v.  Pendleton,  1 
Leigh  (Va.)  297,  19  Am.  Dec.  750;  Parker 
V.  Storts,  15  Ohio  St.  351  ;  Anderson  v. 
Strauss,  98  111.  485 ;  Rankin  v.  Kinsey,  7 
Bradw.  215;  Sugden  v.  Beasley,  7  Bradw. 
71,  quoting  text;  Scriven  v.  Moote,  36 
Mich,  64  ;  Calvin  v.  Shimer  (N.  J.),  15 
Atl.  Rep.  255  ;  Beckman  v.  Sikes,  35  Kaus. 
120;  Missouri  Val.  Land  Co.  v.  Barwick, 
50  Kans.  57,  31  Pac.  Rep.  685  ;  Smith  v. 
Hague,  25  Kans.  246;  Chapman  y.  Veach, 
32  Kans.  167,  4  Pac.  Rep.  100;  Garanflo 
V.  Cooley,  33  Kans.  137,  5  Pac.  Rep.  766; 
Goodwin  v.  Smith,  49  Kans.  351,  31  Pac. 
Rep.  153;  Perley  v.  Cha.^e,  79  Me.  519,  11 
Atl.  Rep.  418;  Montgomery  v.  Merrill,  65 
Cal.  432,  4  Pac.  Rep.  414;  Kerr  v.  Hill, 
27  W.  Va.  576 ;  Hayden  v.  Burkemper, 
101  Mo.  644,  14  S.  W.  Rep.  767;  Down- 
ard  V.  Groff,  40  Iowa,  597  ;  Sherman  v. 
Willett,  42  N.  Y.  146.  In  Batterman  v. 
Albright,  122  N.  Y.  484,  25  N.  E.  Rep.  856, 
Judge  Bradley,  delivering  the  judgment, 
said:  "The  doctrine  peculiar  to  growing 
crops,  originating  in  considerations  deemed 

552 


beneficial  to  the  interests  of  agriculture, 
has  remained  substantially  unchanged,  and 
the  rule  as  stated  in  Lane  v.  King,  8  Wend. 
584,  24  Am.  Dec.  105,  was  not  only  fallowed 
in  some  of  the  cases  before  cited,  but  that 
case  and  its  doctrine  have  more  recently 
been  judicially  cited  and  referred  to  with 
approval  in  this  State."  Citing  Harris  v. 
Prink,  24  N.  Y.  31  ;  Samson  v.  Rose,  65  N. 
Y.  411. 

In  Cassilly  v.  Rhodes,  12  Ohio,  88,  it  was 
held  that  a  tenant  of  the  mortgagor  was 
entitled  to  the  annual  crops. 

8  Gillett  V.  Balcom,  6  Barb.  370. 

*  Ruggles  V.  First  Nat.  Bank  of  Centre- 
ville,  43  Mich.  192,  5  N.  W.  Rep.  257  ;  Mut. 
Life  Ins.  Co.  v.  Bigler,  79  N.  Y.  568  ;  Mis- 
souri Land  Co.  v.  Barwick,  50  Kans.  57,  31 
Pac.  Rep.  685  ;  Galbreath  v.  Drought,  29 
Kans.  711  ;  Farlin  v.  Sook,  30  Kans.  402,  1 
Pac.  Rep.  123;  Emerson  v.  Sansome,  41 
Cal.  552  ;  Frink  v.  Roe,  70  Cal.  296,  11  Pac. 
Rep.  820 ;  Walker  v.  Hill,  22  N.  J.  Eq.  513  ; 
Morse  v.  Bank,  47  N.  J.  Eq.  279,  20  Atl. 
Rep.  961. 

5  Woehler  v.  Endter,  46  Wis.  301,  50  N. 
W.  Rep.  1099. 

6  Ruggles  V.  First  Nat.  Bank,  43  Mich. 
192,  5N.  W.  Rep.  257. 


THE  DEED,    AND   PASSING   OF   TITLE.  [§  1658. 

title  to  it.^  But  the  sheriff  or  other  officer  in  selling  has  no  author- 
ity to  reserve  the  way-going  crops.  If  he  does  so,  but  does  not 
make  the  reservation  in  the  deed,  it  will  pass  the  crops  to  the  pur- 
chaser.2 

This  rule  in  regard  to  crops  applies  as  well  to  trees  and  shrubs 
growing  in  a  nursery.  "  The  rule,  as  between  mortgagor  and  mort- 
gagee, as  to  crops  growing  on  mortgaged  premises,  is  no  less  favor- 
able to  the  claim  of  the  plaintiff  than  that  relating  to  nursery 
trees,  which  partake  of  the  same  character,  and  the  principle  appli- 
cable to  both  in  such  case  may  be  treated  as  the  same."^ 

This  rule  uniformly  prevails  where  the  common  law  on  the  sub- 
ject of  mortgages  remains  in  force.  Even  in  some  States  in  which 
a  mortgage  is  regarded  as  a  security  merely,  the  title  remaining  in 
the  mortgagor,  the  rule  is  the  same.  In  a  recent  important  case  on 
this  subject  in  New  York  the  court  say  :  "  Our  attention  is  called  to 
no  reason  why  the  considerations  upon  which  the  doctrine  relating  to 
emblements  was  founded,  and  has  since  been  observed,  are  now  any 
less  entitled  to  sanction  than  formerly.  The  fact  that  the  right  to 
ejectment  is  taken  away  from  the  mortgagee  by  the  statute,  and  the 
mortgage  reduced  to  a  mere  chose  in  action,  secured  by  lien  upon 
the  land  while  the  defeasance  remains  effectual,  does  not  seem  to 
have  any  essential  bearing  upon  the  question,  inasmuch  as  the  per- 
fecting of  title  under  it  has  relation  to  the  time  it  became  a  lien."  ^ 

But  in  some  other  States  where  a  mortgage  creates  no  estate  in 
tlie  mortgagee,  but  confers  on  him  only  a  lien,  the  mortgagor  or  his 
tenant  may  claim  the  crops  which  have  matured  at  the  time  of  the 
foreclosure.^     In  such  States  the  mortgagor  is  entitled  to  the  pos- 

1  Sherman  v.  Willett,  42  N.  Y.  146.  have  taken  the  nursery  trees  from  the  prem- 

2  Howell  V.  Schenck,  24  N.  J.L.  89.  ises  prior  to  the  time  of  the  foreclosure  of 

3  Batterman  v.  Albright,  122  N.  Y.  484,  the  mortgage,  he  had  no  such  right  as 
25  N.  E.  Rep.  856.  Bradley,  J.,  said :  "  It  against  the  purchase  or  his  grantee,  who 
may  be  observed  that  the  doctrine  applica-  had  entered  under  the  title  perfected  by 
ble  to  growing  crops  is  distinguishable  from  the  sale  on  foreclosure,  and  the  convey- 
that  relating  to  other  personal  property  on  ance  made  pursuant  to  it."  Citing  Lane  v. 
land,  as  between  grantor  and  grantee  and  King,  8  Wend.  584  ;  Shepard  v.  Philbrick,  2 
mortgagor  and  mortgagee.  The  theory  on  Deuio,  174;  Giliett  v.  Balcom,  6  Barb.  370; 
which  it  rests  is  that  they  in  some  sense  ap-  Jewett  v.  Keenholts,  16  Barb.  193  ;  Sherman 
pertain  to  the  realty;  and  the  general  rule,  v.  Willett,  42  N.  Y.  146;  Aldrich  v.  Eey- 
as  declared  from  an  early  day  by  text  and  nolds,  1  Barb.  Ch.  613;  Adams  v.  Beadle, 
judicial    writers,    is  that  a  j)arty  entering  47  Iowa,  439. 

into  possession  by  title  paramount   to  the  *  Batterman  v.  Albright,  122  N.  Y.  484, 

right  of  the  tenant   takes  them.  .  .  .  And  25  N.  E.  Rep.  856. 

while  the  plaintiff  (a  purchaser  upon  cxe-  ^  Richards  v.    Knight,   78  Iowa,  69,  42 

cution  against  the  mortgagor,  prior  to  the  N.   W.   Rep.   584 ;  Heclit   v.  Dettman,   56 

foreclosure  sale),  as  against  the  mortgagor,  Iowa,  679,  7  N.  W.  Rep.  495, 10  N.  W.  Rep. 
and  without  liabilitv  to  the  mortgagee,  may 

553 


§  1659.]    FORECLOSURE  SALES  UNDER  DECREE  OF  COURT. 

session  and  use  of  the  land,  and  to  the  crops  grown  thereon,  until 
his  right  is  divested  by  appropriate  judicial  proceedings.  The  title 
to  the  land  remains  in  the  mortgagor,  and  his  right  to  control  and 
dispose  of  the  annual  crops  remains  in  him,  at  least  until  a  receiver 
is  appointed  and  obtains  possession.  The  fact  that  the  mortgage 
debt  is  due,  and  tliat  the  mortgagor  is  in  default,  does  not  of  itself 
divest  him  of  the  right  to  control  and  dispose  of  the  crops.  The 
crojT  is  chattel  property,  which  the  mortgagor  has  a  right  to  sell, 
and,  if  he  sells  the  same  prior  to  the  appoinfment  of  a  receiver,  the 
purchaser  obtains  a  good  title. ^ 

1659.  The  rents  accruing  between  the  day  of  sale  and  the  de- 
livery of  tlie  deed  belong  to  the  owner  of  the  equity  of  redemp- 
tion, and  not  to  the  purchaser,  as  they  go  with  the  possession,  or 
the  right  of  possession ;  and  generally  the  purchaser  is  not  entitled 
to  possession,  or  to  the  rents,  until  he  has  made  a  demand  for  posses- 
sion under  his  deed.^  If,  however,  the  purchaser  is  already  in  pos- 
session under  a  former  purchase  at  a  sale  not  confirmed,  he  is  enti- 
tled to  the  rents  from  the  date  of  the  confirmation  of  the  last  report 
of  sale.3 

The  purchaser  is  entitled  to  rents  from  the  tenants  notwithstand- 
ing they  have  paid  the  rent  in  advance  to  the  mortgagor  for  a  pe- 
riod extending  beyond  the  time  of  the  delivery  of  tlie  deed  to  the 
purchaser.*  Rents  payable  in  advance,  and  collected  in  advance  by 
a  receiver  appointed  in  the  action,  for  a  period  extending  beyond 
tiie  date  of  delivery  of  the  deed  to  the  purchaser  at  the  foreclosure 
sale,  may  be  apportioned  to  such  purcliaser.*^      One  who  has   pur- 

'241  ;  Caldwell  v.  Alsop,  48  Kans.  571,   29  But  a  mortgage  sale  does  not  affect  the 

Pac.  Rep.  1150.  right  of  a  tenant  of  the  mortgagor  to  crops 

Heavilon  y.  Farmers' Bank,  81  Ind.  249,  growing  on  the  mortgaged  land,  where  such 

reversing  Jones  v.  Thomas,  8  Blackf.  428,  tenant  was  not  made  a  party  to  the  fore- 

which  was  decided  when  the  rule  in  Indiana  closure   proceeedings.     St.  John  v.  Swain, 

was  that  a  mortgage  creates  an  estate  in  the  14  N.  Y.  Supp.  743. 

mortgagee.    Allen  v.  Elderkiu,  62  Wis.  627,  2  §  ngQ ;   Taliaferro  v.  Gay,  78  Ky.  496  ; 

22  N.  W.  Rep.  842;  Gregory  v.  Ro.senkrans,  Clason  v.  Corley,  5  Saudf.  447  ;   Astor  v. 

72  Wis.  220,39N.  W.  Rep.  378.  Turner,  11  Paige,  436,  43  Am.  Dec.  766; 

In  Beckman   v.  Sikes,  35  Kans.  120,  10  Mitchell  r.  Bartlett,  52  Barh.  319. 

Pac.  Rep.   592,  the   mortgagor   planted  a  ^  Taliaferro  v.  Gay,  78  Ky.  49G. 

crop   of  corn  after    the  foreclosure  of  the  *  Hatch  i'.  Sykes,  64  Miss.  307, 1  So.  Rep. 

mortgage,  and  it  was  immature  and  grow-  248;  Patton  v.  Varga,  75  Iowa,  368,  39  N. 

ing  when  the  land  was  .sold  pursuant  to  the  W.  Rep,  647  ;  Harris  v.  Foster,  97  ChI.  292, 

decree  of  foreclosure,  and  it  was  held  that  32  Pac.  Rep.  246  ;  McDevitt    v.  Sullivan, 

the  crop  passed  by  the  sale  to  the  purchaser.  8  Cal.  592  ;  Clement  v.  Shipley  (N.  D.),  51 

1  §  1522;  Caldwell    v.  Alsop,  48  Kans.  N.  W.  Rep.  414. 

571,  29  Pac.  Rep.  1150,  per  Johnson,   J.;  ^  Cowen  y.  Arnold,  12  N.  Y.  Supp.  601. 
Hecht  V.  Dettman,  56  Iowa,  679,  7  N.   W. 
Rep.  495,  10  N.  W.  Rep.  241. 

654 


THE   DEED,    AND   PASSING    OF   TITLE,       [§§  1660,  1661. 

'cluised  the  mortgaged  property  at  a  foreclosure  sale  under  a  junior 
mortgage,  and  lias  received  tlie  deed,  is  entitled  to  the  rents  as 
against  a  prior  mortgagee  who  has  bought  the  premises  at  a  sale 
under  his  mortgage,  but  tlie  year  for  redemption  has  not  expired, 
although  he  holds  an  assignment  from  the  mortgagor  of  all  rents 
due  or  to  become  due.^  The  senior  mortgagee  acquired  no  rights 
to  the  rents  other  than  those  the  mortgagor  had,  and  these  rights 
were  cut  off  by  the  passing  of  the  title  under  the  first  foreclosure. 

By  statute  the  judgment  debtor  not  redeeming  may  be  made 
liable  to  the  purchaser  for  the  rent  of  the  premises,  or  for  use  and 
occupation  of  the  same  after  the  sale;^  or  the  purchaser  may  be 
entitled  to  receive  the  rents  of  the  property,  or  the  value  of  the 
use  and  occupation.'^ 

1660.  When  a  mortgagee  purchases  at  a  sale  of  the  premises 
under  a  decree  of  court,  no  deed  from  the  trustee  appointed  to  make 
the  sale  is  requisite  to  invest  him  with  the  legal  title.  The  decree 
of  sale  does  not  of  course  operate  as  a  conveyance  of  the  legal 
title,  but  the  purchaser,  though  a  stranger,  becomes  the  substantial 
owner  of  the  property  from  the  moment  the  sale  is  ratified.  He  is 
entitled  to  possession,  and  no  one  can  eject  him.  But  when  the 
mortgagee  purchases  the  title,  according  to  the  doctrine  of  the  com- 
mon law  the  legal  title  is  already  in  him,  and  the  sale  confirms  him 
in  the  possession  of  the  property  ;  and  without  a  deed  from  the 
trustee  he  can  maintain  ejectment  for  the  property.'* 

1661.  The  purchaser  has  no  legal  title  until  the  time  allowed 
for  redemption  has  expired.^  He  cannot  on  his  certificate  of  pur- 
chase maintain  ejectment  or  other  possessory  action.  He  is  not 
entitled  to  possession  until  a  deed  has  been  executed  to  him  by  the 
officer  selling.^  He  acquires  only  a  lien  ;  no  new  title  vests  till  the 
period  of  redemption  has  passed.  His  deed  will  relate  back,  it  is 
true,  to  the  beginning  of  his  lien,  in  order  to  cut  off  intervening 
incumbrances  ;  but  it  will  not  carry  back  the  absolute  divestiture 
of  title,  as  is  evident  from  the  fact  that  neither  judgment  debtor 
nor  mortgagor  can  be  called  to  account  for  rents  and  profits.  His 
title  becomes  absolute  only  when  his  right  to  a  deed  accrues.     The 

1  Patton   V.  Varga,  75  Iowa,  368,  39  N.  *  Lannay  v.  Wilson,  30  Md.    536.     See 
W.  Rep.  647.  §§  1892,  1893. 

2  As  in  Indiana:  2  R.  S.  1876,  p.  720;  ^  Rockwell  v.  Servant,  63  111.  424;  De- 
Gale  V.   Parks,    58  Ind.  117;  Clenieuts  v.  lahay  v.  McConnel,  5  111.  156. 
Robinson,  54  Ind.  599.  ^  benuett  v.  Matsou,  41  111.332;  O'Brian 

3  As  in    California  :  Code  of    Civ.  Proc.  v.  Fry,  82  111.  87,  274. 
§  707  ;  Walker  v.  McCusker,  71  Cal.  594,  12 

Pac.  Rep.  723;  Page  v.  Rogers,  31  Cal.  293. 

555 


§§  1662,  1663.]       FORECLOSURE   SALES   UNDER   DECREE   OF   COURT. 

mortgagor  still  has  the  estate  of  a  mortgagor,  with  this  qualifica- 
tion, that  the  amount  and  time  of  redemption  have  become  abso- 
lutely fixed  by  the  decree  of  sale,  and  his  estate  will  be  absolutely 
divested  if  he  fails  to  redeem  within  the  allotted  time.^ 

But  the  mortgagor,  though  entitled  to  the  possession  until  the 
period  of  redemption  has  expired,  is  liable  for  any  injury  he  may 
do  to  the  premises  by  cutting  and  carrying  away  growing  tim- 
ber.2  He  might  be  restrained  from  committing  waste  by  injunc- 
tion.^ 

1662.  An  appeal  does  not  affect  a  sale  previously  made. 
The  judgment  of  the  court  being  conclusive  so  long  as  it  stands  un- 
reversed and  without  appeal,  a  sale  made  under  it  before  any  appeal 
is  taken  and  the  execution  of  the  judgment  stayed  is  not  affected 
by  any  appeal  afterwards  taken,  though  that  part  of  the  decree 
directing  the  sale  to  be  made  by  a  referee,  instead  of  the  sheriff, 
be  set  aside  as  erroneous.* 

The  rule  is  the  same  although  the  purchaser  was  one  of  the  par- 
ties to  the  suit ;  ^  or  even  if  he  had  notice  at  the  time  of  the  sale 
that  an  effort  would  be  made  to  obtain  a  reversal  of  the  decree.^ 
The  law  does  not  require  a  purchaser  to  inspect  the  record  and  to 
see  that  it  is  free  from  error.  All  that  is  required  of  him  is  to  see 
that  there  is  a  subsisting  judgment  by  a  court  having  jurisdiction 
of  the  case.  '  "  If  such  was  not  the  rule,  no  one  would  become  a 
purchaser  at  a  judicial  sale,  and  all  competition  would  cease,  and 
plaintiffs  would  become  purchasers  at  their  own  price."  " 

VIII.   The  Delivery  of  Possession  to  Purchaser. 

1663.  Possession  delivered  to  purchaser.  —  It  has  long  been 
the  practice  of  courts  of  chancery  in  England,  adopted  also  in  this 
country,  wherever  a  sale  and  conveyance  of   real  estate  has  been 

1  Stephens  v.  111.  Mat.  F.  Ins.  Co.  43  634,  Mr.  Jnstice  Davis  stated  the  rule  to 
111.  327;  Sweezy  v.  Chandler,  11  111.  445;  be,  that  "although  the  judgment  or  decree 
Johnson  v.  Baker,  38  111.  98,  87  Am.  Dec.  may  be  reversed,  yet  all  rights  acquired  at 
293.  a  judicial  sale  while  the  decree  or  judgment 

2  Stout  V.  Keyes,  2  Dougl.^(Mich.),  184,  were  in  full  force,  and  which  they  author- 
43  Am.  Dec.  465.  ized,  will  be  protected.     It  is  sufficient  for 

3  Phoenix  v.  Clark,  6  N.  J.  Eq.  447.  See  the  buyer  to  know  that  the  court  had  juris- 
§§  684-698.  diction  and  exercised  it,  and  that  the  order, 

*  Armstrongs.  Humphreys,  5  S.  C.  128;  on   the  faith   of  which   he  purchased,  was 

Breese  v.   Bange,   2    E.    D.    Smith,    474 ;  made,  and  authorized  the  sale."     And  see 

Blakeley  iJ.  Calder,  15  N.  Y.  617  ;  Buckmas-  Bank  v.  Voorhees,  1  McLean,  221. 

ter  V.  Jackson,  4  111.  104;  Holden  v.  Sack-  ^  Gossom  v.  Donaldson,  18  B.  Mon.  230, 

ett,  12  Abb.  Pr.  473  ;  Bailey  v.  Fanning  Or-  68  Am.  Dec.  723. 

phan  School  (Ky.),  14  S.  W.  Rep.  908.  «  Irwin  v.  Jeffers,  3  Ohio  St.  389. 

In   Gray  v.    Brignardello,   1   Wall.    627,  '  Fergus  v.  Woodworth,  44  111.  374,  384. 

556 


THE   DELIVERY    OF   POSSESSION   TO   PURCHASER.         [§  1663. 

decreed,  to  compel  the  person  in  possession  of  tlie  property  to  sur- 
render it  to  the  purchaser,  by  an  order,  or  by  injunction,  or  by  a 
writ  of  assistance.  Lord  Hardwicke  said  that  this  practice  had  its 
origin  in  the  reign  of  James  I.  ;  ^  but  Mr.  Eden  says  that  this  state- 
ment is  a  mistake,  as  many  precedents  for  injunctions  to  deliver 
possession  after  a  decree,  and  a  commission  or  writ  of  assistance  to 
the  sheriff,  are  in  the  printed  reports  as  early  as  the  reign  of  Queen 
Elizabeth,  and  are  also  found  in  a  manuscript  book  of  orders  in  the 
time  of  Henry  VIII.,  Edward  VI,,  and  Mary.^  But  whenever  the 
practice  was  begun,  it  has  long  been  fully  established  both  in  Eng- 
land and  in  this  country,'^  and  is  applied  to  sales  under  decrees  in 
foreclosure  suits. 

Accordingly,  after  a  sale  has  been  made  under  a  decree  in  a 
foreclosure  suit,  the  court  has  power  to  give  possession  to  the 
purchaser,  though  the  delivery  of  possession  is  not  made  part  of 
the  decree.  He  is  not  driven  to  an  action  of  ejectment  at  law  to 
obtain  possession."^     But  if  the  person  in  possession  was  not  a  party 


1  Roberdeau  v.  Rous,  1  Atk.  543  ;  Penn 
V.  Baltimore,  1  Ves.  Sen.  444. 

2  Eden  on  Injunctions,  261,  Waterman's 
ed.  2d  vol.  425. 

3  Dove  V.  Dove,  2  Dick.  617,  1  Bro.  Ch. 
375;  Huguenin  v.  Baseley,  15  Ves.  180; 
Dorscy  v.  Campbell,  1  Eland,  356,  363  ; 
Garretson  v.  Cole,  1  Har.  &  John.  370,  387  ; 
Buttum's  case,  13  N.  H.  14. 

*  Illinois :  Jackson  v.  Warren,  32  111. 
331 ;  Williams  v.  Waldo,  4  111.  264  ;  Lam- 
bert y.  Livingston,  131  III.  161,  23  N.  E. 
Rep.  352.  New  York :  Sutfern  v.  Johnson, 
1  Paige,  450,  19  Am.  Dec.  440;  Freling- 
huysen  v.  Colden,  4  Paige,  204 ;  Van  Hook 
V.  Throckmorton,  8  Paige,  33  ;  McGown  v. 
Wilkins,  1  Paige,  120;  Kershaw  v.  Thomp- 
son, 4  Johns.  Ch.  609  ;  Bolles  v.  Duff,  43 
N.  Y.  469;  Ludlow  v.  Lansing,  Hopk.  231 ; 
Valentine  v.  Teller,  Hopk.  422.  California: 
Skinner  v.  Beatty,  16  Cal.  156;  Horn  v. 
Volcano  Water  Co.  18  Cal.  141,  73  Am. 
Dec.  569.  Alabama  :  Creighton  v.  Paine,  2 
Ala.  138.  Arkansas :  Bright  v.  Pennywit, 
21  Ark.  130.  Kentucky:  Trabue  v.  Ingles, 
6  B.  Mon.  82. 

Chancellor  Kent,  in  Kershaw  v.  Thomp- 
son, 4  Johns.  Ch.  609,  fully  examines  the 
question  of  the  power  of  a  court  of  equity 
to  give  possession  of  property  sold  under 
its  decree,  and  in  his  luminous  opinion 
says  :  — 


"  It  does  not'  appear  to  consist  with 
sound  principle  that  the  court  which  has 
exclusive  authority  to  foreclose  the  equity 
of  redemption  of  a  mortgagor,  and  can  call 
all  the  parties  in  interest  before  it  and 
decree  a  sale  of  the  mortgaged  premises, 
should  not  be  able  even  to  put  the  pur- 
chaser into  possession  against  one  of  the 
very  parlies  to  the  suit,  and  who  is  bound 
by  the  decree.  When  the  court  has  ob- 
tained lawful  jurisdiction  of  a' case,  and  has 
investigated  and  decided  it  upon  its  merits, 
it  is  not  sufficient  for  the  ends  of  justice 
merely  to  declare  the  right  without  aftbrd- 
ing  the  remedy.  If  it  was  to  be  understood 
that,  after  a  decree  and  sale  of  mortgaged 
premises,  the  mortgagor,  or  other  party  to 
the  suit,  or  perliaps  those  who  have  been 
let  into  the  possession  by  the  mortgagor 
pendente  lite,  could  withhold  the  possession 
in  defiance  of  the  authority  of  this  court, 
and  compel  the  purchaser  to  resort  to  a 
court  of  law,  I  apprehend  that  the  delay 
and  expense  and  inconvenience  of  such  a 
course  of  proceeding  would  greatly  impair 
the  value  and  diminish  the  results  of  sales 
under  a  decree.  .  .  .  The  distribution  of 
power  among  the  courts  would  be  inju- 
dicious, and  the  administration  of  justice 
exceedingly  defective,  and  chargeable  with 
much  useless  delay  and  expense,  if  it  were 
necessary  to  resort,  in  the  first  instance,  to 

557 


§  1663.]         FORECLOSURE    SALES    UNDER   DECREE   OF    COURT. 

to  the  suit,  and  is  a  mere  stranger  who  entered  into  possession  be- 
fore the  suit  was  begun,  he  cannot  be  turned  out  of  possession  by 
an  execution  on  the  decree.^  Had  he  come  into  possession  2:>6'ndente 
lite,  he  would  be  bound  by  the  decree  in  the  same  manner  as  the 
defendant  is.^  So  long  as  the  owner  of  the  premises  is  in  posses- 
sion, and  has  tlie  right  to  redeem  under  a  prior  mortgage,  a  pur- 
chaser under  a  foreclosure  sale  of  a  subsequent  mortgage  cannot 
recover  possession  from  him.  He  has  the  legal  right  to  retain  pos- 
session until  such  equity  has  been  foreclosed  and  sold  under  the 
prior  mortgage  ;  and  it  does  not  matter  that  he  is  barred  by  the 
statute  of  limitations  from  bringing  his  suit  to  redeem  it.'^ 

The  remedy  for  obtaining  possession,  when  this  is  wrongfully  with- 
held from  the  purchaser,  is  an  order  of  court,  which,  if  not  obeyed, 
may  be  followed  by  an  injunction,  or  if  need  be  by  a  writ  of  assist- 
ance.^ If  the  order  for  the  delivery  of  possession  be  not  included 
in  the  decree,  a  special  order  may  be  entered;  but  the  writ  of  as- 
sistance may  follow  after  a  refusal  to  obey  the  order.^  A  motion 
and  order  for  a  writ  of  assistance  may  be  made  at  the  time  of  the 
confirmation  of  the  sale,  without  actual  notice  to  the  defendant  of 
the  motion ,s     It  will  be  granted  also   at  the  instance   of  the  pur- 

a  court  of  equity,  aud  afterwards  to  a  court  ^  Wells  v.  Pierce,  3  Keyes  (N.  Y.),  102. 

of  law,  to  obtain  a  perfect  foreclosure  of  a  *  Illinois :    O'Brian  v.  Fry,    82    111.    87  ; 

mortgage.    It  seems  to  be  absurd  to  require  Aldrich  v.  Sharp,  4  III.  261.     New  York: 

the  assistance  of  two  distinct  and  separate  Kershaw  v.  Thompson,  4  Johns.  Ch.  609  ; 

jurisdictions  for  one  and  the  same  remedy.  Van  Hook  v.  Throckmorton,  8  Paige,  .33  ; 

viz.,  the  foreclosure  and  possession  of  the  Frelinghuysen   v.    Golden,   4    Paige,    204. 

forfeited  pledge.     But  this  does  not,  upon  California:    Montgomery  i-.  Tutt,   11  Cal. 

due  examination,  appear   to  be   the   case;  190.      South    Carolina:    Trenholm  v.   Wil- 

and  it  may  be  safely  laid  down  as  a  general  son,  13  S.  C.  174.     Kansas  :    Bird  v.  Belz, 

rule,  that  the  power  to  apply  the  remedy  is  33   Kans.  391,  6  Pac.  Rep.  627.     Florida: 

coextensive  with  the  jurisdiction  over  the  Gorton  v.  Paine,  18  Fla.  117. 

subject  matter."  In  South  Carolina,  under  the  recent  Code, 

In  New  Jersey  the  practice  is   of  recent  the  remedy  is   an  order  of  the  court,  and 
adoption  ;  but  the  propriety  of  it,  aud  the  a  writ  of  habere  facias  possessionem  is  not 
power  of  the  court  to  apply  it,  are  fully  necessary  or  proper.     Armstrong  v.  Hum- 
established  in  the  case  of  Schenck  v.  Con-  phreys,  .5  S.  C.  128. 
over,  13  N.  J.  Eq.  220,  78  Am.  Dec.  95.  In  Alabama  an   appeal   from   the  order 

In  New  York  it  is  now  provided  by  stat-  directing  a  writ  of  assistance  to  issue  may 
ute  that,  where  any  person  shall  continue  in  be  taken  by  the  tenant  against  the  pur- 
possession  of  any  real  estate  sold  pursuant  chaser,  though  a  writ  of  error  will  also  lie. 
to  the  foreclosure  of  a  mortgage,  possession  Creighton  v.  Planters'  &  Merchants'  Bank, 
may  be  recovered  by  summary  proceedings.  3  Ala.  156. 
2  Bliss  Annot.  Code,  §  1675.  &  O'Brian  v.  Fry,  82  111.  87  ;    Oglesby  r. 

1  Benhard   v.   Darrow,   Walker    (Mich),  Pearce,  68  IlL  220;    Kessinger  v.  Whitta- 

519;  Thompson  v.  Smith,  1  Dill.  458;  Ttr-  ker,  82  III.  22. 

reli  V.  Allison,  21  Wall.  289;   Anderson    v.  6  Coor  r.  Smith,  101   N.  C.  261,  11  S.  K. 

Tliompsou  (Ariz  ),  20  Pac.  Rep.  803.  Rep.  1089. 

-  Kessinger  v.  Whittaker,  82  111.  22. 
558 


THE  DELIVERY   OF   POSSESSION   TO   PURCHASER.         [§  1664. 

chaser,  or  of  the  complainant ;  and  it  may  be  issued  not  only 
against  the  defendant,  but  as  well  against  any  person  in  possession 
under  him,  or  holding  by  any  title  not  paramount  to  the  mortgage,^ 
wlio  was  a  party  to  the  foreclosure  suit.^  If  a  tenant  is  in  posses- 
sion, the  deed  should  be  shown  him  by  the  purchaser  when  he 
makes  demand  of  possession,  and,  upon  his  refusal  to  comply,  notice 
of  the  application  to  court  should  be  given. ^  As  against  a  party 
to  the  suit  the  writ  will  be  granted  upon  a  motion  ex  i^ arte. ^  but  it 
would  seem  that  one  who  has  come  into  possession  'pendente  lite 
would  be  entitled  to  notice  of  the  motion.*  The  writ  of  assistance 
is  the  only  process  necessary  for  giving  possession,  and  should  issue 
in  the  first  instance  without  a  prior  injunction,  upon  proof  of  the 
service  of  the  order  to  deliver  possession  and  of  refusal  to  comply 
with  it.^  The  vendee  of  the  purchaser  at  the  sale  is  entitled  to  this 
remedy  against  the  mortgagor  in  possession  ;  ^  and  the  assignee  of 
the  purchaser's  bid  may  also  have  it.'^ 

1664.  Possession  will  be  given  to  the  purchaser  not  only  as 
against  all  the  parties  to  the  suit,  but  also  as  against  any  persons 
who  have  come  into  possession  under  them  pending  the  suit.^  But 
possession  acquired  by  any  one  after  the  purchaser  has  received  his 
deed  and  conveyed  the  premises  to  another  will  not  be  interfered 
^with.  Neither  is  one  who  enters  fifteen  months  after  the  sale 
deemed  as  having  entered  pending  the  suit,  and  therefore  he  cannot 
be  removed  by  a  writ  of  assistance,  though  he  entered  under  a  party 
to  the  suit.^  Though  one  enter  pending  the  suit,  if  he  did  not  enter 
under  a  party  to   the   suit,  or  under  ^\\^  who  had  derived  title  to 

1  Schenck  v.  Conover,  13  N.  J.  Eq.  Rep.  823  ;  Ketchum  v.  RoLinson,  48  Mich. 
220,  78  Am.  Dec.  95;  Watkins  v.  Jerman,    618,  12  N.  W.  Rep.  877. 

36  Kans.  464,  13  Pac.   Rep.   798 ;   Bird  i'.  '^  Ekings  v.  Murray,  29  N.  J.  Eq.  388 ; 

Belz,  33  Kans.  391,  6  Pac.  Rep.  627.  Keil  i-.  West,  21  Fla.  508. 

2  Anderson y.  Thompson  (Aiiz.),  20  Pac.  8  Bell  v.  Birdsall,  19  How.  Pr.  491; 
Rep.  803;  Gerald  y.  Gerald,  31  S.  C.  171,  Kessinger  v.  Whittaker,  82  111.  22.  If, 
9  S.  E.  Rep.  792.  however,    the    interest    of    the    mortgagor 

3  Fackler  v.  Worth,  13  N.  J.  Eq.  395;  which  is  the  subject  of  foreclosure  and  sale 
New  York  Life  Ins.  &  Trust  Co.  v.  Rand,  is  merely  the  net  income  in  land,  without 
8  How.  Pr.  35,  39.  any  interest  in  or  title  to  the  land  itself, 

*  Benhard  v.   Darrow,    Walker  (Mich),  the  title  and  the  right  of  possession   being 

519;  Commonwealth  V.  Ragsdale,  2  Hen.  &  vested  in  trustees,  a  direction  to  put  the 

Mun.  8 ;   Lynde  y.  O'Donneli,  12  Abb.  Pr.  purchaser    in    possession    is    not    proper. 

286,  21  How.  Pr.  34.  There  should  be  in  such  case  an  order  that 

"»  2  Daniell's   Ch.  Pr.    1280;  Schenck  v.  the  trustee  apply    the   net   income  to   the 

Conover,  13  N.  J.  Eq.  395,  78  Am.  Dec.  payment  of  the  mortgage  debt.     Wilson  v. 

95;  Hart  v.  Lindsay,  Walker  (Mich.),  144;  Russ,  17  Fla.  691. 

Valentine  v.  Teller,  Hopk.  422;  Ballinger  '•»  Belts  v.  Birdsall,  11   Abb.  Pr.  222,  19 

V.  Waller,9  B.  Mon.  67.  How.  Pr.  491. 

•=  McLane  v.  Piaggio,  24  Fla.   71,  3  So. 

559 


§§  1665,  1666.J   FORECLOSURE  SALES  UNDER  DECREE  OF  COURT. 

the  premises,  or  had  gone  into  possession  of  them  under  a  party 
pending  the  suit,  he  cannot  be  turned  out  of  possession  under  the 
decree;^  as,  for  instance,  if  he  purchased  after  the  commencement 
of  the  suit,  at  a  sale  under  a  judgment  against  the  mortgagor  re- 
covered before  that  time.^ 

1665.  If  the  person  in  possession  shows  a  right  paramount 
to  the  mortgage,  of  course  the  court  will  not  attempt  to  decide 
any  question  of  legal  title,  and  the  possession  must  then  be  sought 
for  by  proceedings  at  law.^  Such  would  be  the  case  when  the  jjarty 
in  possession  claims  under  a  lease  made  before  the  mortgage  under 
which  the  sale  has  been  made.^  If  the  purchaser  allows  the  mort- 
gagor to  remain  in  possession  under  an  agreement  to  redeem,  he  is 
after  that  in  possession  under  this  contract,  and  not  as  defendant  in 
the  foreclosure  suit ;  and  therefore  he  cannot  be  removed  under  a 
writ  of  assistance.^  The  exercise  of  the  power  of  the  court  to  de- 
liver possession  in  any  case  rests  in  the  sound  discretion  of  the 
court,  and  in  cases  of  doubtful  right  the  possession  will  be  left  to 
legal  adjudication.'' 

Where  a  wife  is  a  necessary  party  to  a  foreclosure  suit  by  reason 
of  a  prior  homestead  right,  but  has  not  been  joined  with  her  hus- 
band as  a  defendant,  and  she  is  in  possession  of  the  mortgaged 
premises  with  her  husband,  a  purchaser  at  the  foreclosure  sale  will 
not  be  entitled  to  a  writ  of  assistance  against  the  husband.'  But 
the  fact  that  the  wife  is  entitled  to  one  third  of  the  proceeds 
arising  from  the  sale  does  not  defeat  the  purchaser's  right  of  pos- 
session.^ 

1666.  Until  the  purchaser  has  complied  with  the  terms  of 
sale,^  and  a  deed  has  been  executed  to  him  by  the  selling  officer, 
and  confirmed  by  the  court,  he  is  not  entitled  to  an  order  of  court 
to  be  let  into  possession.!^  He  is  not  entitled  to  a  deed  until  he 
has  paid  the  whole  of  the  purchase-money.  Even  if  the  purchaser 
be  a  junior  mortgagee,  and  is  entitled  to  a  portion  of  the  surplus 
money,  he  will  be  required  to  pay  in  the  whole  of  it,  especially  if 

1  Van  Hook  v.  Throckmorton,  8  Paige,  "  Hefner  v.  Urton,  71  Cal.  479,  12  Pac. 
33.  Rep.  486. 

2  Frelinghuysen  v.  Golden,  4  Paige,  204.  ^  Dill  v.  Vincent,  78  Ind.  321. 

3  Wade  V.  Miller,  92  N.  J.  L.  296;  Kirk-  ^  Armstrong  v.  Humphreys,  b  S.  C.  128. 
patrick  v.  Corning,  38  N.  J.  Eq.  234  ;  i'^  Clason  v.  Corley,  5  Sandf.  447  ;  Bennett 
Chadwick  v.  Island  Beach  Co.  42  N.  J.  Eq.  v.  Matson,  41  111.  332 ;  Myers  v.  Manny,  63 
602,  8  Atl.  Rep.  6.50.  111.  211  ;  Howard  v.  Bond,  42  Mich.  131,  3 

4  Thomas  v.  De  Baum,  14  N.  J.  Eq.  37.  N.  W.  Rep.  289.     In  Wisconsin,  by  rule  of 

5  Toll  V.  Hiller,  11  Paige,  228.  court  (1857),  the  purchaser  was  entitled  to 

6  McKomb  V.  Kankey,  1  Bland,  363,  note  be  let  into  possession  before  confirmation  of 
c. ;  Thomas  v.  De  Baum,  14  N.  J.  Eq.  37.  the  sale.     Loomis  v.  Wheeler,  18  Wis.  524. 

560 


SETTING   ASIDE   OF   SALE.  [§§  1667,  1668. 

there  are  other  incumbrancers  who  might,  perhaps,  have  claims 
upon  the  surplus  superior  to  his.^ 

The  purchaser  before  obtaining  a  deed  cannot  maintain  an  ac- 
tion of  forcible  detainer  against  one  in  possession  ;  and  a  judgment 
against  the  purchaser  in  such  suit  is  no  bar  to  an  application  by 
him  for  a  writ  of  assistance  to  put  him  in  possession.^ 

As  already  noticed,  a  purchaser  is  not  generally  entitled  to  the 
rents  until  he  receives  a  deed  of  the  property  ;  but  after  this  has 
been  delivered  to  him,  and  he  has  demanded  possession  under  it,  he 
is  entitled  to  the  accruing  rents.^  If  he  is  put  into  possession  of 
the  land  immediately  upon  the  sale  and  before  the  payment  of  the 
purchase-money,  he  is  chargeable  with  interest  upon  this  to  the  time 
of  payment.* 

A  purchaser  may,  upon  petition  pending  confirmation  of  the  sale, 
obtain  an  injunction  against  the  mortgagor  restraining  him  from 
committing  waste. ^ 

1667.  These  summary  proceedings  do  not  preclude  remedy 
by  suit  at  law  in  ejectment/^  In  such  case  the  plaintiff  must  in 
the  first  place  show  a  valid  foreclosure.''  The  validity  and  execution 
of  the  mortgage  cannot,  however,  be  inquired  into.^  The  decree  in 
the  foreclosure  suit,  and  the  sale  under  it,  are  conclusive  if  regular ; 
and  therefore  a  mortgagor  cannot  defend  the  action  on  the  ground 
that  the  premises  are  his  homestead ;  that  defence  is  available  onl}'^ 
in  the  foreclosure  suit.^ 

IX.  Settijig  aside  of  Sale. 

1668.  A  sale  under  a  decree  of  foreclosure  may  be  set  aside 
by  a  bill  in  equity  brought  for  the  purpose,  when  the  sale  has 
been  fraudulently  conducted  to  the  prejudice  of  the  plaintiiT,  even 
when  he  might  have  a  remedy  by  motion  in  the  original  suit.^^  He 
then  has  a  legal  and  absolute  right  independent  of  the  discretion  of 
the  court.i^     When  the  rights  of  third  persons  have  accrued,  some 

1  Battershall  v.  Davis,  23  How.  Pr.  383.  "  Dwight  v.  Phillips,  48  Barb.  116.     See 

2  Cochran  v.  Fogler,  116  111.  194.  Hey  man  v.  Babcock,  30  Cal.  367. 

■'  Castleman    v.   Belt,    2   B.   Men.    157;  »  Hayes  ?;.  Shattuck,  21  Cal.  51. 

Clason  V.  Corley,  5  Sandf.  447.  9  Haynes  v.  Meek,  14  Iowa,  320. 

*  Haven  v.  Grand  June.  R.  R.  &  Depot  i"  Vandercook  v.  Cohoes  Suv.  Inst.  5  Hun, 

Co.  109  Mass.  88.  641 ;   McMurray  v.  McMurray,    66  N.    Y. 

"  Mutual  L.  Ins.  Co.  v,  Bigler,  79  N.  Y.  175;     Mc Williams   v.  Witiiington,  7  Fed. 

568.  Rep.  326;    Sanger  v.  Nightingale,  122  U. 

6  Kessinger    v.    Whittaker,   82    111.   22;  S.  176,  7  Sup.  Ct.  Rep.   1109;   Tucker  v. 

Cook  V.  Wiles,  42  Mich.  439,  4  N.  W.  Rep.  Jackson,  60  N.  H.  214. 

169;  Trope  v.  Kerns,  83  Cal.  553,  23  Pac.  "  See   Gould  v.  Mortimer,  26  How.  Pr. 

Rep.  691,  20  Pac.  Rep.  82.  167. 

VOL.  II.               36  55][ 


§  1668.]    FORECLOSURE  SALES  UNDER  DECREE  OF  COURT. 

original  proceeding  is  necessary  in  which  these  rights  may  be  tried  in 
the  ordinary  way:  they  cannot  be  adjudicated  in  a  summary  man- 
ner upon  motion. 1  They  must  in  some  way  be  brought  into  court, 
and  given  an  opportunity  to  be  heard.^  But  ordinarily,  if  there  is 
nothing  to  prevent  an  application  in  the  original  suit,  an  original 
bill  for  this  purpose  cannot  be  sustained  ;3  and  when  the  proceed- 
ings are  regular  and  free  from  fraud,  and  the  party  is  only  equita- 
bly entitled  to  relief,  his  only  remedy  is  by  motion  in  the  foreclosure 
suit,  addressed  to  the  discretion  of  the  court,  to  open  the  biddings 
or  set  aside  the  sale.*  In  allowing  him  to  come  in,  the  court  may 
impose  such  terms  as  may  seem  proper.  This  application  may  be 
made  by  any  one  injured  by  the  proceedings  under  the  decree,  al- 
though he  is  not  a  party  to  the  suit.^ 

An  original  suit  to  set  aside  a  sale  by  a  party  to  the  foreclosure 
suit  should  only  be  sanctioned  in  exceptional  cases,  where  relief 
cannot  be  obtained  by  a  summary  application  in  the  foreclosure  suit. 
Ordinarily  it  is  only  the  court  in  the  foreclosure  suit  which  is  com- 
petent to  protect  all  parties  interested  in  the  sale,  because  protection 
for  all  can  be  given  only  by  ordering  a  resale  upon  conditions.*' 

An  original  suit  cannot  be  maintained  without  making  parties  to 
;the  action  not  only  the  parties  to  the  foreclosure  suit,  but  as  well 
.the  purchaser  at  the  sale  which  is  called  in  question.^ 

A  purchaser  at  a  foreclosure  sale  submits  hiqiself  to  the  jurisdic- 
tion of  the  court  in  the  foreclosure  suit  as  to  all  matters  connected 
with  the  sale  ;  and  he  moreover  acquires  a  sufficient  status  to  enable 
him  to  apply  to  that  court  to  vacate  a  resale  of  the  same  property.^ 

The  sale  may  be  set  aside  by  an  order  made  upon  a  motion  in  the 
original  suit,  even  after  the  deed  has  been  delivered,  either  for  im- 
propriety in  the  sale,  or  for  the  purpose  of  letting  in  a  defence  to 
the  action.^  This  course  is  clearly  proper  if  the  purchaser  has 
made  no  payment,  and  no  certificate  of  purchase  has  been  filed  for 
record.i*^  The  motion  for  resale,  when  founded  on  facts  not  apparent 
upon  the  record,  should  properly  be  heard  and  determined  upon  affi- 
davit.^^    The  purchaser  under  the  sale  sought  to  be  set  aside  should 

1  Crawford  v.  Tiiller,  35  Mich.  57.  10  Paige,  243;  KiclioU  v.  Niclioll,  8  Paige, 

■-  Jewett  V.  Murris,  41  Mich.  689.  349. 

3  Brown  v.  Frost,  10  Paige,  243;    Sked  •^  Mut.  Life  Ins.  Co.  v.  Sturges,  33  N.  J. 

V.  Sedgley,  36  Ohio  St.  483.  Eq.  328. 

*  New  York  :  McCotter  v.  Jay,  30  N.  Y.  '   Haiwood  v.  Cox,  26  111.  App.  374. 

80;  Smith  v.  Am.  Life  Ins.  &  Trust  Co.,  »  TerbelU-.  Lee,  40  Fed.  Rep.  40 ;  Brown 

Clarke,  307  ;  AVhite  v.  Coulter,  1  Hun,  357.  v.  Frost,  10  Paige,  243. 

5  New  York :  Gould  v.  Mortimer,  26  How.  ■'  Terbell  v.  Lee,  40  Fed.  Rep.  40. 

Pr.  167  ;  Am.  Ins.  Co.  v.  Oakley,  9  Paige,  ^°  Terbell  v.  Lee,  40  Fed.  Rep.  40. 

259,496,  38  Am.  Dec.  561  ;  Brown  v.  Frost,  "  Savery  v.  Sypher,  6  Wall.  157. 
562 


SETTING   ASIDE    OF   SALE.  [§  1669. 

be  made  a  party  to  the  bill,  or  should  be  notified  of  the  motion 
made  for  that  purpose.  Third  persons  who  have  l/ought  of  the 
first  purchaser  should  in  like  manner  have  an  opportunity  to  be 
heard.i 

Allegations  of  fraud  in  procuring  the  mortgage,  and  allegations 
of  the  payment  of  it,  will  not  support  an  action  against  the  pur- 
chaser to  set  aside  the  foreclosure  sale,  when  no  fraud  or  mala  fides 
on  the  part  of  the  purchaser  is  alleged.^  Such  questions  are  ne- 
cessarily involved  in  the  proceedings  leading  to  the  judgment, 
and,  whether  actually  raised  or  not,  are  concluded  by  the  judg- 
ment. 

After  a  confirmation  of  the  sale  and  final  decree,  an  application 
to  set  aside  the  sale,  decree  of  confirmation  and  final  decree,  reasons 
founded  on  irregularities  in  making  the  sale  are  not  available,  unless 
a  sufficient  excuse  is  shown  for  failure  to  present  such  reasons  in 
opposition  to  the  application  to  confirm  the  sale.^  In  general  it  may 
be  said  that  objections  to  a  sale  based  upon  errors  in  the  proceed- 
ings or  in  the  decree  will  not  be  considered.^ 

1669.  An  application  for  a  resale  can  be  made  only  by  some 
one  who  is  either  interested  in  the  mortgaged  premises,  or  is  under 
personal  liability  for  a  deficiency.^  A  sale  will  not  be  set  aside  at 
the  instance  of  one  who  was  not  a  party  to  the  suit,  when  he  was 
not  made  a  party  through  his  own  negligence  in  having  his  deed 
recorded,  and  his  grantor,  who  appeared  by  the  record  to  be  the 
owner  of  the  property  when  the  suit  was  brought,  was  pi'operly 
made  a  defendant.^  If  the  applicant  be  a  subsequent  mortgagee 
who  holds  his  mortgage  only  as  collateral  security  for  the  debt  of  a 
third  person,  he  should  on  equitable  grounds  be  required  to  exhaust 
his  remedy  against  the  principal  debtor  before  he  can  have  the  sale 
set  aside."  It  must  be  made  without  delay  ;  though  relief  has  been 
granted  even  after  two  or  three  years,  when  the  purchaser  had  not 
parted  with  his  title,  and  there  was  a  reasonable  excuse  for  the 
delay. ^ 

1  Lawrence  v.  Jarvis,  36  Mich.  281  ;  -^  New  York :  Bodine  v.  Edwards,  3  Ch. 
Crawford  v.  Tuller,  35  Mich.  .57.  Dec.  46,  2  N.  Y.  Leg.  Obs.  231  ;  Gould  v. 

2  Ruff  V.  Doty,  26  S.  C.  173,  1  S.  E.  Rep.  Mortimer,  26  How.  Pr.  167  ;  May  v.  May, 
707.  11  Paige,  201. 

»  Coles  V.  Yorks,  36  Minn.  388,  31    N.  «  §1412;  Leonard  f.  N.  Y.  Bay  Co.  28  N. 

W.  Rep.  353  ;  Smith  v.  Valentine,  19  Minn.  J.  Eq.  192. 

452;  Dodge  v.  Allis,  27  Minn.  376;  Marsh  '  New  York:  Soule  v.  Ludlow,  3   Hun, 

V.  Sheriff  (Md.),  14  Atl.  Rep.  664.  503,  6  Thomp.  &  C.  24  ;  Depew  v.  Dewey, 

«  Meyer    v.  Utah  &  Pleasant  Val,  Ry.  2  T.  &  C.  515,  46  How.  Pr.  441. 

Co.   3   Utah,  280;  Holland    Trust   Co.    v.  «  Fergus   v.    Woodworth,    44    111.  374; 

Hogan,  17  N.  Y.  Supp.  919.  NiclioU  v.  Nicholl,  8  Paige,  349. 

563 


§§  1669  a,  1670.]     foreclosure  sales  under  decree  of  court. 

A  wife  having  only  an  inchoate  right  of  dower  in  the  premises 
cannot  sustain  an  application  made  in  the  lifetime  of  her  husband 
to  set  aside  a  foreclosure  sale,  or  the  decree  of  sale,  on  the  ground 
that  she  was  not  made  a  party  to  the  suit,  or  was  not  properly 
served  with  summons.^  If,  instead  of  applying  for  a  resale,  the 
party  interested  agrees  with  the  purchaser  for  a  future  redemption 
of  the  premises,  and  for  the  possession  in  the  mean  time,  the  court 
will  not  afterwards  set  aside  the  sale.- 

If  no  one  applies  for  a  resale,  and  all  parties  are  content  that  the 
sale  shall  stand,  and  justice  can  be  done  without  it,  the  court  will 
not  order  a  resale  of  its  own  motion. ^ 

1669  a.  A  sale  -will  not  be  set  aside  at  the  instance  of  a 
party  whose  own  misconduct  has  been  the  occasion  of  an  ir- 
regularity. Thus,  where  a  notice  of  sale  was  published  to  occur  on 
March  9,  but  as  published  in  certain  issues  of  the  paper  the  figure  9 
was  turned  upside  down,  so  that  it  made  it  appear  that  the  day  of 
sale  was  March  6,  it  was  found  that  tlie  alteration  in  the  notice 
was  caused  or  j)rocured  to  be  made  by  the  mortgagor,  whose  prop- 
erty was  advertised  to  be  sold,  for  the  purpose  of  avoiding  the  sale. 
On  a  motion  of  the  mortgagor  to  set  aside  the  sale  by  reason  of  the 
defective  notice,  it  was  held  that  a  party  guilty  of  such  misconduct 
is  not  in  a  position  to  appeal  to  the  court  for  assistance  in  consum- 
mating the  wrong,  and  that  the  court  will  not  aid  him  in  reaping 
the  anticipated  fruits  of  his  wrongful  conduct.* 

1670.  A  sale  will  not  be  set  aside  on  account  of  mere  inade- 
quacy of  price,  unless  it  be  also  shown  that  the  sale  was  unfairly 
conducted,  or  there  was  fraud  or  surprise  or  mistake,  which  pre- 
vented the  obtaining  of  any  adequate  price,^  or  the  party  had  no 

1  White   V.  Coulter,  1    Hun,  357.     See,  v.  Hoover,  5  AVis.  354,  68    Am.  Dec.    70; 

however,  Cain  v.  Ginion,  36  Ala.  168,  Warren    v.  Foreman,    19    Wis.    35.    Ala- 

-  Toll  V.  Hiller,  1 1  Paige,  228.  bama :  Alexander  v.  Messervey,  35   S.  C. 

3  Eleventh  Ward  Sav.  Bank  v.  Hay,  55  409,  14  S.  E.  Rep.  854;  Mahone  v.  Wil- 
How.  Pr.  444.  Hams,  39  Ala.  202  ;  Littell  v.  Zuntz,  2  Ala. 

4  Green  v.  Corson,  50  Kans.  624,  32  Pac.  256,  36  Am.  Dec.  415.  Tennessee  :  Hender- 
Eep.  380.  son  v.  Lowry,  5  Yerg.  240.     Ohio  :  West  v. 

5  New  York:  Am.  Ins.  Co.  v.  Oakley,  9  Davis,  4  McLean,  241.  Indiana:  Benton 
Paige,  259,  496,  38  Am.  Dec.  561  ;  Tripp  v.  v.  Shreeve,  4  Ind.  66.  New  Jersey :  Boyd 
Cook,  26  Wend.  143  ;  Whitbeck  v.  Rowe,  25  v.  Hudson  City  Academical  Soc.  24  N.  J. 
How.  Pr.  403  ;  Kellogg  v.  Howell,  62  Barb.  Eq.  349  ;  Twining  v.  Neil,  38  N.  J.  Eq.  470. 
280;  Thompson  "y.  Mount,  1  Barb.  Ch.  California:  Haynes  v.  Backman  (Cal.),  31 
607  ;  Gould  v.  Libby,  24  How.  Pr.  440 ;  Le-  Pac.  Rep.  745.  Missouri :  Briant  v.  Jack- 
fevre  v.  Laraway,  22  Barb.  167;  Eleventh  son,  99  Mo.  585,  13  S.  W.  Rep.  91.  Ken- 
Ward  Sav.  Bank  v.  Hay,  55  How.  Pr.  444;  tucky:  Ison  v.  Kinnaird  (Ky.),  17  S.  W. 
Bonnett  v.  Brown,  13  N.  Y.  Supp.  395;  Rep.  634.  Maryland:  Marsh  v.  Sheriff 
Howell  V.  Mills,  53  N.  Y.  322.  Wiscon-  (Md.),  14  Atl.  Rep.  664;  Garritee  v.  Pop- 
sin:    Strong  j;.  Catton,  1    Wis.   471;   Hill  plein,  73  Md.  322,  20  Atl.  Rep.  1070.    Kan- 

664 


SETTING    ASIDE    OF    SALE. 


[§  1670. 


notice  of  the  order  of  sale,  or  of  the  confirmation  thereof.^  The 
fact  that  a  higher  price  may  reasonably  be  expected  on  a  resale  is 
by  itself  no  ground  for  granting  it.^  Great  inadequacy  of  price  is 
a  circumstance  which  will  always  be  regarded,  and  slight  additional 
circumstances  onl}'  are  required  to  authorize  the  setting  aside  of  the 
sale.^  Although  the  inadequacy  of  price  be  such  as  to  afford  ground 
for  setting  aside  the  sale,  this  will  not  be  done  unless  it  be  shown 
that  a  larger  price  will  probably  be  obtained  by  a  resale.*  Any  un- 
fairness or  misrepresentation  on  the  part  of  the  purchaser,  by  which 
a  person  interested  in  the  propert}'^  is  prevented  from  attending  the 
sale  and  bidding,  and  the  purchaser  obtains  the  property  at  a  price 
considerably  below  its  actual  value,  is  a  good  ground  for  setting  the 
sale  aside.^  Thus  a  resale  was  ordered  where,  upon  the  foreclosure 
of  a  first  mortgage  for  $10,000,  property  worth  -$14,000  was  sold  to 
the  first  mortgagee  for  the  amount  of  his  mortgage,  and  the  second 
mortgagee  alleged  that  he  refrained  from  bidding  on  account  of  the 
representations  of  the  first  mortgagee,  and  also  of  a  third  person, 
as  to  the  amount  each  would  bid  for  the  property.  The  petitioner 
was  required  to  give  security  to  obtain  a  bid  of  $13,000,  and  to  re- 
imburse the  purchaser  for  actual  betterments  made  and  taxes  paid 
since  the  sale,  with  interest,  before  applying  any  of  the  proceeds  of 
the  sale  to  the  second  mortgage.^  A  similar  order  was  made  in  a 
case  where  property  worth  $12,000  or  more  was  sold  for  less  than 
$2,500.' 


sas:  Babcock  v.  CanfieUl,  36  Ivans.  437,  13 
Pac.  Rep.  787  ;  Means  v.  Rosevear,  42  Kans. 
377,  22  Pac.  Rep.  319;  Jones  v.  Carr,  41 
Kans.  329,  21  Pac.  Rep.  258. 

In  Kneeland  v.  Smith,  13  Wis.  591,  the 
court  refused  to  set  aside  a  sale  fairly 
made  and  confirmed,  on  a  mere  offer  to  bid 
S8,000,  where  the  former  bid  was  §7,G01  ; 
and  so  in  Allis  v.  Sabin,  17  Wis.  626,  where 
there  was  an  offer  to  bid  $2,400  on  a  resale 
of  premises  which  at  the  former  sale  were 
bid  in  for  S2,000;  and  in  Northrop  v.  Cooper, 
23  Kans.  432,  where  the  sale  was  fair  and 
the  property  brought  only  $100,  the  court 
refused  to  set  aside  the  sale  although  it  ap- 
peared that  its  actual  value  was  from  $565 
to  $933.  For  other  cases  relating  to  inade- 
quacy of  price  see  Miller  v.  Lanham,  35  Neb. 
886,  53  N.  W.  Rep.  1010 ;  New  York  L.  Ins. 
Co.  V.  Murphy  (N.  J.  Eq.),  25  Atl.  Rep.  381 . 

1  Nugent  V.  Nugent,  54  Mich.  557,  20  N. 
W.  Rep.  584. 

2  King  V.  Piatt,  37  N.  Y.  155 ;  Kellogg  v. 


Howell,  62  Barb.  280;  Garriteet'.  Popplein, 
73  Md.  322,  20  Atl.  Rep.  1070. 

3  Means  v.  Rosevear,  42  Kans.  377,  22 
Pac.  Rep.  319  ;  Dewey  v.  Linscott,  20  Kans. 
6?4;  Capital  Bank  v.  Huntoon,  35  Kans. 
577,  11  Pac.  Rep.  369. 

*  Farmers'  Bank  v.  Quick,  71  Mich.  534, 
39  N.  W.  Rep.  752 ;  Means  v.  Rosevear,  42 
Kans.  377,  22  Pac.  Rep.  319. 

5  Murdock  V.  Em{)ie,  9  Abb.  Pr.  283. 
The  conditions  imposed  in  this  case  were 
the  return  of  the  deposit  and  the  payment 
of  the  expenses,  including  the  auctioneer's 
fees,  and  SlOO  for  fees  in  examining  the 
title  ;  and  furthermore  the  giving  of  a  bond 
with  sureties  to  bid  a  certain  sum  at  the 
resale,  and  to  pay  the  expenses  of  it.  And 
see  Hubbard  v.  Taylor,  49  Wis.  68,  4  N.  W. 
Rep.  1066;  Van  Dyke  v.  Van  Dyke,  31  N. 
J.  Eq.  176. 

«  Dawson  v.  Drake,  29  N.  J.  Eq.  383. 

"  Gilbert  v.  Haire,  43  Mich.  283,  5  N.  W. 
Rep.  321. 

565 


§  1670  a.]   FORECLOSURE  SALES  UNDER  DECREE  OF  COURT. 

A  misapprehension  on  the  part  of  a  bidder  as  to  statements  made 
by  the  mortgagor  at  the  time  of  the  sale  whereby  he  ceased  to  bid, 
and  the  premises  were  sold  for  much  less  than  the  bidder  would 
have  paid,  is  ground  for  setting  aside  the  sale.^  So  also  is  a  mis- 
understanding on  the  part  of  a  second  mortgagee  in  making  his  bid 
subject  to  the  first  mortgage,  whereby  property  worth  $2,500  was 
sold  for  $25.2 

A  resale  should  not  be  granted  on  the  ground  of  inadequacy  of 
price  when  the  property,  which  was  not  worth  on  the  day  of  sale 
more  than  140,000,  was  bid  in  by  the  mortgagee  for  $35,000,  the 
mortgagor  having  notice  that  he  would  not  bid  above  that  sum.^ 

An  agreement  between  bondholders  to  bid  a  certain  price  for  the 
property,  and  if  they  obtained  the  property  to  sell  it  to  others  for  a 
certain  advance  price,  if  not  intended  to  suppress  competition  at  the 
sale  and  obtain  the  property  at  a  sacrifice,  is  a  legitimate  one.^  An 
agreement  between  the  mortgagee  and  the  debtor  that  the  former 
should  bid  off  the  property  at  the  foreclosure  sale,  provided  the  bids 
should  not  run  up  above  the  amount  of  the  mortgage  debt,  and  that 
in  such  case  the  mortgagee  would  resell  the  property  to  the  debtor 
at  an  agreed  price,  within  a  time  fixed,  does  not  invalidate  the  sale.-^ 

A  sale  will  not  be  set  aside  on  the  ground  of  mere  assertions 
made  at  the  sale  by  irresponsible  persons  that  the  sale  "  was  a  mere 
formality,"  especially  if  the  person  seeking  to  have  the  sale  set 
aside  was  present  at  the  sale,  and  he  does  not  show  that  he  was  de- 
ceived by  such  assertions.^ 

After  a  foreclosure  sale  the  only  relief  for  one  who  claims  that 
the  sale  was  for  an  inadequate  price  is  an  application  to  have  the 
sale  set  aside.  If  the  mortgagee  has  bought  the  property,  a  suit 
cannot  be  maintained  against  him  for  the  recovery  of  the  difference 
between  the  price  paid  and  the  actual  value.'^ 

1670  a.  A  sale  may  be  set  aside  at  the  instance  of  the  mort- 
gagee. This  was  done  in  a  case  where  the  property  was  sold  for 
about  a  third  only  of  its  value,  which  was  about  the  amount  of 
the  mortgage,  and  the  officer  making  the  sale  was  instructed  to  bid 
for  the  mortgagee  to  the  amount  of  the  mortgage,  but  neglected  to 
do  so.     The  purchaser  knew  of  the  mortgagee's  intention  to  bid  at 

1  Banfa  v.  Brown,  32  N.  J.  Eq.  41.  ^  Davis   v.  Citizens'  Bank,  39  La.  Ann. 

2  Van  Arsdalen  v.  Vail,  32  N.  J.  Eq.  189.  523,  2  So.  Eep.  401. 

3  White  V.  Coulter,  1  Hun,  357.  And  «  Eussell  v.  Pew,  12  Mont.  509,  31  Pac. 
see  New  York  L.  Ins.  Co.  v.  Murpliy  (N.  J.),  Rep.  75. 

25  Atl.  Rep.  381.  '^  Leavitt  v.  Files,  38  Kans.  26,  15  Pac. 

*  Terbeli  t^.Lee,40Fed.  Rep.40;  Wicker    Rep.  891. 
V.  Hoppock,  6  Wall.  94  ;  Kearney  v.  Taylor, 
15  How.  494. 

566 


SETTING   ASIDE   OF   SALE.  [§§  1671,  1672. 

the  sale,  and   the  mortgagee  could   not   collect   any  part  of  the  de- 
ficiency from  the  mortgagor.^ 

A  sale  will  be  set  aside  at  the  instance  of  the  mortgagee  when 
the  mortgagor  has  by  his  acts  prevented  a  free  competition  between 
the  bidders.  Such  acts  have  been  called  chilling  the  bidding.  Thus 
where  a  mortgagor,  a  woman,  at  a  sale  of  the  mortgaged  premises, 
publicly  announces  that  she  intends  to  bid,  that  she  is  a  widow,  de- 
pendent on  such  premises  for  a  support,  and  requests  that  no  one 
bid  against  her,  thus  preventing  free  competition  among  the  bidders, 
a  sale  to  her  for  an  inadequate  price  will  be  set  aside.- 

1671.  When  the  complainant  himself  becomes  the  purchaser, 
the  court  is  always  more  ready  to  open  a  sale  than  where  the  prop- 
erty has  been  purchased  by  a  stranger  to  the  suit  for  the  purpose  of 
investment ;  the  sale  is  set  aside  upon  less  evidence  of  fraud,  sur- 
prise, or  accident,  or  of  the  invalidating  circumstance,  whatever  it 
may  be  ;^  but  the  mere  fact  that  the  mortgagee  purchased  at  the 
sale  for  a  sum  much  below  the  value  of  the  property  is  no  evidence 
of  fraud.'* 

1672.  Neglect  of  oflBcer  selling.  —  The  parties  interested  in  the 
property  have  a  right  to  expect  that  it  will  be  sold  in  the  usual 
manner,  and  in  a  way  to  produce  a  fair  competition  at  the  sale. 
They  will  not  be  relieved  against  their  own  negligence,  however  in- 
adequate may  be  the  price  obtained,  unless  it  be  so  great  as  to  show 
fraud  or  unfairness  in  the  sale.  But  relief  may  be  had  if  the  prop- 
erty was  sacrificed  by  the  neglect  or  mistake  of  the  master  or  officer 
conducting  the  sale,^  as,  for  instance,  in  selling  the  whole  premises 
together,  when  he  should  have  sold  in  separate  parcels.^  The  fact 
that  a  sale  was  made  in  the  city  of  New  York  upon  the  day  of  the 
charter  election,  though  not  for  that  reason  void,  yet,  taken  in  con- 

1  Haynes    v.   Backman    (Cal.),   31    Pac.  143;    Gould  v.  Libby,   24   How.  Pr.  440; 

Hep.  745.  Kellogg!;.  Howell,  62  Barb.  280;  Mott  v. 

-  Herndon  v.  Gibson   (S.  C),  17    S.  E.  Walkley,   3  Edw.  590;  Cain  i-.  Gimon,  36 

Kep.  145.     The  court  cites  Carson  v.  Law,  Ala.  168;  Nugent  y.  Nugent,  54  Mich.  557, 

2  Rich.  Eq.  296,  as  an  apt  illustration  of  20  N.  W.  Rep.  584;  Evans  t'.  English  (Ky.), 

this  principle.     In  this  case  the  bidder  of-  10  S.  W.  Rep.  626. 

fered  $1,000  for  a  lot  of  nine  negro  slaves,  *  Glide    v.  Dwyer,  83  Cal.  477,  23  Pac. 

announcing  when  he  did  so  that  it  was  his  Eep.  706 ;  Briant  v.  Jackson,  99  Mo.  585, 

purpose  to  send  them  as  a  gift  to  the  wife  13  S.  W.  Rep.  91. 

and  children  of^the  defendant  in  execution.  ^  Marsh  v.  Ridgway,  18  Abb.  Pr.    262  ; 

His  bid  was  the  only  bid.     He  paid  the  pur-  Griffith  i;.  Hadley,  10  Bosw.  587;  Minne- 

cliase-muncy,  and  sent  the  slaves   as  pro-  sola  Co.  v.  St.  Paul  Co.  2  Wall.  609. 

posed.     He  therefore  told  the    truth.      He  •^  New  York:  Am.  Ins.  Co.  v.  Oakley,  9 

concealed  nothing.     He  misrepresented  no-  Paige,  259,496,  38  Am.  Dec.  561  ;  Wolcott 

thing.     His   conduct   was    generous.     Yet  v.  Schenck,  23  How.  Pr.  385.     Sec  Whit- 

tlie  court  set  the  sale  aside.  beck  v.  Rowe,  25  How.  Pr.  403. 

"  New  York :  Tripp  v.  Cook,  26  Wend. 

667 


§  1673.]        FORECLOSURE   SALES   UNDER  DECREE   OF   COURT. 

nection  with  the  ch-cumstances  that  a  party  interested  in  obtaining 
the  best  price  possible  for  the  property  objected  to  the  sale  on  that 
day,  and  made  reasonable  requests  for  a  postponement,  and  for  a  sale 
in  a  particular  manner,  was  held  to  justify  the  court  in  setting  aside 
the  sale  and  ordering  the  premises  sold  again. ^ 

If  a  master  has  violated  his  instructions  limiting  the  price  of 
the  property,  of  which  the  purchaser  had  notice,  the  sale  will  be 
set  aside.^  So,  if  a  referee  sell  on  terms  not  authorized  by  the 
decree,  a  resale  will  be  ordered  ;  ^  or  if  the  master  give  the  im- 
pression to  parties  in  interest  that  the  sale  will  not  take  place, 
and  they  in  consequence  do  not  attend ;  *  or  if  a  commissioner 
appointed  to  make  the  sale  does  not  pursue  the  instructions  of 
the  court  in  respect  to  advertising  the  sale  ;  ^  or  if  a  receiver  sells 
several  distinct  parcels  of  land,  greatly  exceeding  in  value  the 
debt,  in  one  mass,  to  the  prejudice  of  the  debtor;^  or  if  the  officer 
requires  payment  of  the  whole  amount  of  the  purchase-money  within 
an  hour  after  the  sale ; '  or  if  he  sell  a  lot  not  equitably  liable  for 
the  debt;^  or  if  the  land  is  not  properly  divided  into  lots.^ 

But  the  neglect  of  a  master  to  give  to  a  person  interested  in 
the  foreclosure  actual  personal  notice  of  the  day  of  sale,  in  accord- 
ance with  a  promise  to  do  so,  is  not  such  an  official  delinquency  as 
would  justify  setting  aside  the  sale.^^ 

The  owner  was  allowed  to  redeem  where  the  sale  was  made  con- 
trary to  the  sheriff's  assurance  that  it  would  be  adjourned.^^ 

1673.  Upon  an  application  for  a  resale  the  rights  of  the  pur- 
chaser will  be  taken  into  account,  and  will  prevail  when  the  sale 
has  been  fair  and  free  from  fraud,  or  other  circumstances,  which 
give  an  undoubted  right  to  have  it  set  aside. ^^  There  must  be  a 
good  reason  for  disturbing  the  sale  ;  and  when  there  is  no  legal 
right  to  relief,  and  the  application  is  addressed  merely  to  the  discre- 
tion of  the  court,  the  court  will  consider  the  equities  of  all  the  par- 
ties, to  the  end  of  giving  substantial  justice.^^ 

1  King  V.  Piatt,  37  N.  Y.  155,  35  How.  see  Wolcott  v.  Schenck,  23  How.  Pr.  385; 

Pr.  23,  3  Abb.  Pr.  N.  S.  434.  Arnold  v.  Gaff,  58  Ind.  543. 

-  Ilequa  v.  Eea,  2  Paige,  339.     The  limit  '^  Goldsmith  v.  Osborne,  1  Edw.  560. 

of  price  was  $2,600,  and  the  master  sold  for  .     ^  Breese  v.  Busby,  13  How.  Pr.  485. 

$1,000.  9  Miller  v.  Kendrick  (N.  J.),  15  Atl.  Rep. 

3  Hotchkiss  V.  Clifton  Air  Cure,  4  Keyes,  259.     See   this  case   as    to  terms  imposed 

170;  Koch  v.  Purcell,  13  J.  &  S.  162.  upon  mortgagor. 

*  Colliery.  Whipple,  13  Wend.  224.  ^  Crumpton  i>.  Baldwin,  42  III.  165. 

*  Vanbussum  v.  Maloney,  2  Mete.  550;  "  Nevius  v.  Egbert,  31  N.  J.  Eq.  460. 
Denning  v.  Smith,  3  Johns.  Ch.  332;  Baily  i-  Gardiner  v.  Schermerhorn,  Clarke  (N. 
V.  Baily,  9  Rich.  Eq.  392.  Y.).  101. 

«  Griffith  V.  Hadley.  10  Bosw.  587.     And        13  Wiley  v.  Angel,    Clarke  (N.  Y.),  217; 
568 


SETTING   ASIDE   OF   SALE.  [§  1674. 

It  Is  no  good  cause  for  setting  aside  a  foreclosure  sale  that  it  was 
advertised  in  a  newspaper  of  small  circulation  ;  ^  nor  that  the  mas- 
ter has  failed  to  report  the  sale  at  the  next  term  of  the  court  ;^  nor 
that  the  judgment  was  entered  for  too  large  an  amount,^  for  the 
court  cannot  inquire  whether  the  judgment  was  too  large  or  too 
small,  or  investigate  the  pi'oceedings  in  the  suit  prior  to  the  decree, 
upon  an  application  to  set  aside  a  foreclosure  sale ;  *  nor  that  the 
original  mortgagee,  who  had  assigned  the  mortgage  and  guaranteed 
the  payment  of  it,  but  was  a  party  to  the  foreclosure  suit,  did  not 
know  of  the  time  and  place  of  sale,  for  he  was  bound  to  use  due 
diligence  in  obtaining  tliis  information,  if  he  wished  to  protect  his 
interests ;  ^  nor  that  a  party  to  the  suit  was  too  blind  to  read  the 
newspapers  and  had  no  notice  of  the  sale,  and  the  property  sold  for 
much  less  than  its  value.^ 

A  sale  should  not  be  set  aside  on  account  of  a  mere  irregularity 
in  the  sale,  as  in  selling  the  homestead,  together  with  other  prem- 
ises, without  inquiring  whether  the  other  lands  cannot  first  be  sold 
separately,  unless  it  be  shown  that  injury  was  done  by  such  irregu- 
larity." A  sale  on  a  decree  of  foreclosure  cannot  be  impeached  col- 
laterally for  any  irregularit}'  in  the  proceedings ;  ^  or  because  the 
decree  was  prematurely  entered ;  ^  or  because  the  mortgage  was 
not  duly  executed.^'' 

1674.  Waived  by  delay.  —  Any  irregularity  in  a  sale  which 
renders  it  voidable  will  be  deemed  to  be  waived  if  it  is  not  taken 
advantage  of  within  a  reasonable  time,  and  before  innocent  parties 
acquire  rights. ^^  After  a  delay  of  seven  or  eight  years,  the  court 
declined  to  inquire  whether  the  price  bid  was  adequate,  or  whether 
the  property  should  have  been  sold  in  smaller  quantities. ^^  After  a 
delay  beyond  the  period  prescribed  by  statute,  within  which  an  ac- 

Tripp  V.  Cook,  26  Wend,  143  ;  Cole  v.  Mil-  bill  to  redeem.     In  Hamilton  r.  Lubukce, 

ler,  60  Ind.  463.  51   111.  415,  it  was  held  that  a  mortgagor, 

1  Wake  r.  Hart,  12  How.  Pr.  444.  after  delaying  four  years  from  the  time  he 

2  Walker  v.  Schum,  42  III.  462.  had  knowledge  of  the  sale  and  proceedings 
2  Young  V.  Bloomer,  22  How.  Pr.  383.  under  it,  could  not  redeem  as  against  re- 
*  Bullard  v.  Green,  10  Mich.  268.  mote  purchasers,  on  the  ground  of  defective 
^  McCotter  v.  Jay,  30  N.  Y.  80.  notice  of  the  sale  and  inadequacy  of  price. 
"  Parkhurst  v.  Cory,  11  N.  J.  Eq.  233.  See  Mc.AIurray  v.  McMurray,  66  N.  Y.  175  ; 
'  Lloyd  V.  Frank,  30  Wis.  306,  Barnard  v.  Wilson,  66  Cal.  251  ;  Bryan  v. 
8  Nagle  V.  Macy,  8  Cal.  426.  Kales  (Ariz.),  20  Pac.  Rep.  311 ;  Diefendorf 
^  Alderson  v.  Bell,  9  Cal.  315.  v.  House,  9  How.  Pr.  243  ;  Ex-Mission  Land 
"  Hayes  v.  Shattuck,  21  Cal.  51.  Co.  v.  Flash,  97  Cal.  610,  32  Pac.  Rep.  600  ; 
"  Harwood  I'.  Railroad  Co.  17  Wall.  78;  Meier  v.  Meier,  105    Mo.  411,    16    S.    W. 

Terbell  v.  Lee,  40  Fed.  Rep.  40  ;  Rigney  v.    Rep.  223. 

Small,  60  111.  416.     In  this  case  the  mort-        12  Roberts  v.  Fleming,  53  111.  196. 

gagor  waited  nine  years  before  bringing  his 

669 


§  1675.]        FORECLOSURE   SALES   UNDER   DECREE   OF   COURT. 

tion  to  redeem  the  mortgage  can  be  brought,  the  court  has  no  power 
to  set  aside  the  sale.^ 

A  mortgagor,  by  inducing  a  person  to  purchase  the  certificate 
under  a  foreclosure  sale,  upon  the  representation  that  he  had  no 
title  to  the  premises,  the  time  of  redemption  having  expired,  is 
thereby  estopped  from  afterwards  questioning  the  regularity  of  the 
foreclosure  and  sale  as  against  such  purchaser.^ 

A  foreclosure  sale  will  not  be  set  aside  at  the  instance  of  the 
mortgagor,  for  the  reason  that  there  was  an  understanding  between 
him  and  the  purchaser,  in  fraud  of  third  persons,  that  the  mortgagor 
might  redeem  from  the  sale,^  especially  if  this  claim  is  wholly  incon- 
sistent with  plaintiff's  previous  acts  regarding  the  sale.^ 

1675.  When  mistake  or  accident  on  the  part  of  any  one  inter- 
ested in  the  property  is  relied  upon  as  a  ground  for  setting  aside  a 
sale,  it  must  be  shown  that  the  consequence  of  it  was  that  the  prop- 
erty sold  for  a  less  price  than  it  would  otherwise  have  sold  for, 
and  that  a  material  advance  may  be  expected  on  a  resale.^  Partic- 
ular emphasis  is  placed  in  such  cases  upon  the  amount  of  the  ad- 
vance that  can  be  obtained,  the  sale  having  been  fairly  conducted.'' 
Wlien  the  principal  defendants  were  prevented  by  unavoidable  acci- 
dent from  reaching  the  place  of  sale  until  after  it  had  been  con- 
cluded, the  court,  in  granting  a  resale,  imposed  as  terms  the  deposit 
of  the  amount  proposed  to  be  bid,  and  the  payment  of  the  costs  of 
the  former  sale.'^ 

A  mistake  in  the  proceedings,  such,  for  instance,  as  a  misdescrip- 
tion in  the  bill  of  the  land  mortgaged,  when  first  discovered  after 
decree  and  sale,  is  ground  for  setting  aside  the  decree  and  sale  either 
wholly  or  as  to  the  land  erroneously  described,  and  for  maintaining  a 
bill  of  review  to  correct  the  error. 

A  sale  may  be  set  aside  on  the  ground  of  surprise ;  and  this  re- 
lief was  granted  in  a  case  where  the  defendant  was  a  German 
woman,  who  understood  little  English,  and  did  not  understand  the 
nature  of  the  proceedings  against  her.  She  lived  upon  the  prop- 
erty, and  thought  that  if  the  house  was  to  be  sold  a  notice  of  sale 
would  be  posted  on  the  house.     She  did  not  know  of  the  decree  or 

1  Depew  I'.  Dewey,  46  How.  Pr.  441.  "  Hudgins  r.  Lanier,  23  Gratt.  494.     For 

-  Curyea  v.  Berry,  84  111.  600.  cases  in  wliich  the  court  refused  to  set  aside 

3  Randall  v.  Howard,  2  Black,  585.  a  sale  for  surprise,  see  Hunt  v.  Ellison,  32 

*  WilliaiDsr.  Watson  (Ky.)  21  S.W.  Rep.  Ala.  173;  Hill   v.  Hoover,  5  Wis.  354-,  67 

349.  Am.  Dec.  70. 

6  Stryker  v.  Storm,  1  Abb.  Pr.  N.  S.  424.  '  Adams  v.  Haskell,  10  Wis.  123. 

See,  also,  Hey  v.  Scliooley,  7  Ohio,  Part  II. 

49.  _ 

670 


SETTING   ASIDE   OF   SALE.  [§§  1675  «,  1676. 

of  the  sale  until  the  property  had  been  sold,  when  she  tendered  to 
the  sheriff  the  amount  of  the  execution,  with  costs,  and  alleged  in 
her  petition  that  she  stood  ready  to  pay  the  same  at  any  time.^ 

A  sale  may  be  set  aside,  upon  the  application  of  the  mortga- 
gee, on  the  ground  of  a  mistake  whereby  the  land  was  sold  at  a 
grossly  inadequate  price ;  as  where  a  mortgagee  instructed  an 
agent  to  attend  the  sale  and  bid  the  amount  of  the  mortgage, 
and  through  his  mistake  or  inadvertence  he  failed  to  do  so,  and 
the  land  was  sold  for  a  small  part  of  the  amount  of  the  mortgage 
debt.2 

1675  a.  The  purchaser  may  have  the  sale  set  aside  on  ac- 
count of  a  mistake  as  to  the  location,  the  boundaries,  or  the  quan- 
tity of  the  land  described  in  the  notice  of  sale.  Thus  a  purchaser 
should  be  relieved  from  his  purchase  where  the  lot  sold  contains  only 
eight  or  nine  acres  instead  of  eighty-nine  acres,  as  described  in  the 
notice  of  sale,  and  he  made' his  bid  in  the  honest  belief  that  it  con- 
tained the  larger  quantity.^  And  so  a  purchaser  was  relieved  from 
his  purchase  where  he  made  a  mistake  as  to  the  location  of  the  lots 
purchased,  he  believing  that  each  lot  had  a  house  upon  it,  when  in 
fact  two  houses  were  upon  one  lot,  and  the  owner  proceeded  to  re- 
deem the  lot  upon  which  both  houses  were  situated  for  the  sum  bid 
for  that  lot.  Had  his  mistake  been  one  merely  as  to  the  value  of 
the  lots,  he  would  not  be  entitled  to  relief.^ 

1676.  A  sale  will  not  be  set  aside  without  some  pressing 
reason.  If  the  mortgagor  is  competent  to  take  care  of  his  inter- 
ests, and  has  the  opportunity  of  attending  the  sale,  and  this  is 
fairly  conducted,  the  court  will  not  interfere.^  A  resale  will  not 
be  granted,  even  at  the  instance  of  infant  defendants,  on  account 
of  the  failure  of  their  guardian  to  attend  the  sale,  unless  it  ap- 
pears that  their  share  of  the  proceeds,  after  indemnifying  the  pur- 
chaser at  the  first  sale,  will  be  materially  increased  by  a  sale  fairly 
conducted  in  all  respects.^  A  resale  will  not  be  ordered  in  favor  of 
a  party  to  the  suit  who  has  been  negligent  or  inattentive,  and  made 

1  Schulliug  V.  Lintner,  43  N.  J.  Eq.  444,  Wend.  224 ;  Hoppock  v.  Conklin,  4  Sandf. 

11  Atl.  Rep.  153.  Ch.  582. 

-  Cole  Co.  V.  Madden,  91  Mo.  585,  4  S.  W.  3  Dunn  v.  Herbs,  10  N.  Y.  Supp.  34. 

Kep.  397  ;  Holdsworthi;.  Shannon  (Mo.),  21  *  Root  v.  King,  91  Mich.  488,  51  N.  W. 

S.  W.  Rep.  85  ;  Williamson  v.  Dale,  3  Johns.  Rep.  1 1 1 8. 

Ch.  290;  Bi.xly  v.  Mead,   18   Wend.  611;  "  Haines  u.  Taylor,  3  How.  Pr.  206. 
Howell  V.  Hester,  4  N.  J.  Eq.  266  ;  Seaman  «  Stryker  v.  Storm,  1  Abb.  Pr.  N.  S.  424. 
I'.  Riggins,  2  N.  J.  Eq.  214  ;  Griffith  v.  Had-  The  guardian  was  kept  from  the  sale  by  de- 
ley,  10  Bosw.  587  ;  Wetzler  v.  Schaumann,  lay'of  the  railway  train  by  which  he  was  to 
24  N,  J.  Eq.  60;    Collier  v.  Whipple,  13  go  to  the  place  of  sale. 

571 


§§  1676  a,  1677.]     foreclosure  sales  under  decree  of  court. 

no  inquiry  in  relation  to  the  sale,  or  the  time  of  it.^  But  if  a  mort- 
gagor is  prevented,  without  negligence  on  his  part,  from  taking  care 
of  his  interests,  as  by  his  illness,  which  the  purchaser  took  advantage 
of  by  preventing  a  postponement  of  the  sale  and  purchasing  for  one 
third  of  the  real  value  ;  ^  or,  being  absent  from  the  State,  his  agent 
in  charge  of  the  property  became  insane  ;  ^  or,  having  appealed  from 
the  decree  and  supposing  the  sale  was  stayed,  the  plaintiff  without 
his  knowledge  proceeds  to  sell ;  "*  or  a  subsequent  incumbrancer  is 
prevented  from  attending  the  sale  by  accident,  and  the  premises  are 
sold  for  an  inadequate  price,  —  in  all  these  cases  the  sale  will  be  set 
aside.^ 

If  the  mortgagor  and  others  interested  in  the  property  have  been 
misled  by  the  mortgagee,  or  even  by  a  third  person,  in  reference 
to  the  foreclosure,  and  in  consequence  did  not  attend  the  sale,  and 
the  property  was  bought  by  the  mortgagee  for  a  price  greatly  less 
than  its  value,  a  resale  will  be  granted.^  The  petitioner  may 
properly  be  required  to  guarantee  a  bid  of  a  certain  sum  at  the 
resale.''  A  resale  was  granted  where  a  party  to  the  suit  persuaded 
the  plaintiff  to  withdraw  his  consent  to  a  postponement  of  the 
sale,  knowing  that  the  mortgagor  was  sick  and  unable  to  attend, 
and  himself  became  the  purchaser  at  a  price  wholly  inadequate.^ 
A  sale  will  be  set  aside  whenever  the  debtor  has  been  misled  in  any 
way  by  the  mortgagee  or  the  purchaser,  and  thereby  prevented  from 
protecting  his  interests  at  the  sale,  and  the  property  has  been  sold 
greatly  below  its  value.^ 

1676  a.  The  insanity  of  the  mortgagor  at  the  time  of  the 
sale  would  be  a  ground  for  setting  it  aside,  especially  if  any  un- 
fair advantage  was  taken  of  his  condition.  But  the  insanity  must 
be  well  established.  A  sale  will  not  be  set  aside  on  this  ground 
where  the  affidavits  fail  to  show  with  any  definite  particularity 
when  the  insanity  commenced,  and  it  appears  that  the  mortgagor 
did  not  give  up  business  until  two  years  after  the  sale.^*' 

1677.  Few  bidders.  —  It  is  no  good  cause  for  setting  aside  a 
judicial  sale  that  only  a  few  bidders  were  present.  If  the  terms 
of  the    decree    have  been  pursued,  and  the  property    sold    for  an 

1  Francis  v.  Church,  Clarke  (N.  Y.),  475.        6  Campbell  v.  Gardner,  11  N.  J.  Eq.  423, 

2  May   V.  May,  11    Paige,  201  ;  Billing-    69  Am.  Dec.  598. 

ton  V.  Forbes,  10  Paige,  487  ;  Carpenter  v.  '  Hazard  v.  Hodges,  17  N.  J.  Eq.  123. 

Smith,  30  N.J.  Eq.  4G3.  «  Billington  v.  Forbes,  10  Paige,  487. 

3  Thompson  v.  Mount,  1  Barb.  Ch.  607.  ^  Collier  v.  Whipple,  13  Wend.  224,  226  ; 
*  Gould  w.  Libby,  24  How.  Pr.   440,*  18  Hoppock  w.  Conklin,  4  Sandf.  Ch.  582. 

Abb.  Pr.  32.  i°  Provost  v.  Roedieger,  10  N.  Y.  Supp. 

5  Howell  V.  Hester,  4N.  J.  Eq.  266.  812. 

572 


SETTING   ASIDE   OF   SALE.  [§  1678. 

adequate  price,  the  sale  must  stand.  But  a  sale  at  which  no 
bidders  were  present  except  the  auctioneer,  who  bid  in  the  prop- 
erty for  the  mortgagee,  was  held  void.^  And  so,  without  deter- 
mining whether  the  price  obtained  at  a  sale  was  adequate,  the 
court  set  it  aside  on  its  appearing  that  only  one  bidder  was  pres- 
ent, and  that  others  intending  to  be  present  and  bid  for  a  part 
of  the  land  were  deterred  from  doing  so  by  the  inclemency  of  the 
weather.^ 

A  combination  of  bidders  not  to  bid  against  each  other  and  to 
share  in  the  profits  of  a  purchase  might  invalidate  a  sale.  But  if 
there  are  two  mortgagees  who  have  separate  liens  on  mortgaged 
land,  which  each  claims  to  be  superior  to  the  other,  they  may  agree 
to  purchase  the  land  for  their  joint  benefit,  and  are  not  obliged  to 
bid  against  each  other.-^  It  is  now  settled  that  agreements  be- 
tween two  or  more  persons  that  all  but  one  shall  refrain  from  bid- 
ding, and  permitting  that  one  to  become  the  purchaser,  are  not 
necessarily,  and  under  all  circumstances,  void.* 

1678.  "When  a  foreclosure  sale  is  invalid  by  reason  that  in 
making  it  the  requirements  of  statute  have  not  been  followed,  the 
purchaser  is  subrogated  to  the  rights  of  the  mortgagee.  When  the 
proper  parties  to  the  suit  are  omitted,  and  therefore  are  not  bound 
by  it,  or  there  is  any  other  irregularity  in  the  proceedings,  the  sale 
operates  as  a  voluntary  assignment  by  the  mortgagee  of  his  interest 

1  Campbell  v.  Swan,  48  Barb.  109.  other  hand,  if  the  arrangement  is  entered 

-^Roberts  v.  Roberts,  13  Gratt.  639.  into  for  no  such  fraudulent  purpose,  but  for 

3  Huber  v.  Crosland,  140  Pa.  St.  575,  21  the  mutual  convenience  of  the  parties  .  .  . 

Atl.  Rep.  404.  and  for  a  reasonable  and  honest  purpo.se, 

*  Hopkins  v.  Ensign,  122  N.  Y.  144,  25  such  agreement  will  be  valid  and  binding." 

N.  E.  Rep.  306,  citing  People  v.  Stephens,  The  older  cases,  Jones  v.  Caswell,  3  Johns. 

71  N.  Y.  527,546;  Marsh  v.  Rus-sell,  66  N.  Cas.  29;    Doolin  v.    Ward,  6  Johns.   194; 

Y.  288;  Marie  v.  Garrison,  83  N.  Y.  14,  28;  Wilbur  v.  How,  8  Johns.  444;  Thompson 

Myers  v.  Dorman,34  Hun,  115  ;  Kearney  i'.  v.  Davies,  13  Johns.  112,  holding  that  such 

Taylor,  15  How.  494  ;  Wicker  u.  Hoppock,  6  an  arrangement  necessarily  invalidates  the 

Wall,  94 ;  IMiippen  v.  Stickney,  3  Mete.  384 ;  sale,  are  no  longer  authority. 
Maffet  V.  Ijams,  103  Pa.  St.  266  ;   Garrett        An  agreement  to  abstain  from  bidding  at 

V.  Moss,  20  111.  549  ;  Nat.  Bank  v.  Sprague,  the  sale  when  justifiable  is  a  sufficient  con- 

20  N.  J.  Eq.   159;    In  re  Carevv's  Estate,  sideration  for  a  mortgage  given  to  a  law- 

26  Beav.  187.     It  was  said  in  Phippeu  v.  yer  who  had  a  claim  for  services   against 

Stickney  :  "  Where  such  an  arrangement  is  the  mortgagor's  estate,  but  agreed  with  the 

made  for  the  purpose  and  with  the  view  of  mortgagor's  widow  to  abstain  from  bidding 

preventing  fair  competition,  and  by  reason  at  the  foreclosure  sale  to  enable  her  to  bid 

of  want  of  bidders  to  depres.s  tlie  price  of  the  in  the  land  for  the  amount  of  the  mortgage, 

article  offered  for  sale  below  the  fair  mar-  u])on    her    agreement   to   secure    him    the 

ket  value,  it  will   be  illegal,    and  may    be  amount  of  his  claim    by  mortgage,  if  she 

avoided  as  between  the  parties  as  a  fraud  should  secure  the  property.       Hopkins  v. 

upon  the  rights  of  the  vendor;  but,  on  the  Ensign,  122  N.  Y.  144,  25  N.  E.  Rep.  306. 

673 


§  1679.]         FORECLOSURE   SALES   UNDER  DECREE   OF   COURT. 

to  the  purchaser.^  This  is  true  of  sales  under  powers  of  sale,^  as 
well  as  those  under  decrees  of  court.  Such  purchaser  also  acquires 
the  mortgagee's  rights  to  recover  from  the  mortgagor,  or  others 
personally  liable  for  the  debt,  any  deficiency  there  maybe  after  the 
application  of  the  proceeds  of  the  property.^  In  such  cases  the 
purchaser  may  use  his  mortgage  title  to  protect  himself  in  the  pos- 
session of  the  property  if  he  has  obtained  this  :  *  the  mortgagor 
cannot  maintain  ejectment  against  him  any  more  than  he  could 
against  the  mortgagee  lawfully  in  possession  after  condition  broken.^ 
Moreover,  he  may  maintain  ejectment  on  the  mortgagee's  legal 
title,  where  the  mortgagee  himself  could  maintain  the  action.^  The 
purchaser's  title  under  an  invalid  sale  is  good  against  all  except  the 
mortgagor  and  those  claiming  under  him.^ 

1679.  A  second  action  to  foreclose.  —  If  the  owner  of  the 
equity  has,  through  mistake,  not  been  made  a  part}^,  the  mortgagee 
who  has  purchased  at  the  sale  may  maintain  a  second  action  to  fore- 
close the  equity  of  such  owner,  and  for  a  new  sale,^  but  he  cannot 
recover  the  costs  of  the  previous  sale.^  The  foreclosure  is  valid  as 
against  those  who  were  made  parties  to  the  proceeding ;  and  if 
the  error  was  in  not  making  a  junior  mortgagee  a  party,  the  pur- 
chaser acquires  an  estate  subject  only  to  the  lien  of  the  junior  mort- 
gagee,^*^ and  the  purchaser  may  maintain  jjroceedings  to  foreclose 
such  lien.i^  By  the  act  of  purchase  he  submits  himself  to  the  juris- 
diction of  the  court  in  the  foreclosure  suit  as  to  all  matters  con- 
nected with  the  sale,  and  he  is  entitled  to  apply  for  relief  such  as  the 

1  Robinson  v.  Ryan,  25  N.  Y.  320  ;  Gra-  ate  to  assign  the  debt  itself.  Wells  v.  Lin- 
pengether  v.  Fejervary,  9  Iowa,  163,  74  Am.  coin  County,  80  Mo.  424,  explaining  Hona- 
Dec.  336  ;  Honaker  v.  Shoiigh,  55  Mo.  472  ;    ker  v.  Shough,  55  Mo.  472. 

Stouey  V.  Shultz,  1    Hill  (S.  C.)  Eq.  405,  *  Honaker  v.  Shough,  55  Mo.  472  ;  Jones 

27  Am.  Dee.  429;  Cheek  v.  Waldnim,  25  r.  Mack,  53  Mo.   147;  Jackson   v.  Magru- 

Ala.  152;  Slark  v.  Brown,  12  Wis.  572,  78  der,  51  Mo.  55;  Brewer   v.  Nash,  16  R.  I. 

Am.  Dec.  762  ;  Moore  v.  Cord,  14  Wis.  213;  458,  17  Atl.  Rep.  857. 

Childs  V.  Childs,  10  Ohio  St.  339,  75  Am.  ^  Qiilett  v.  Eaton,  6  Wis.  30;  Tallman  v. 

Dec.  512  ;  Frische  v.  Kramer,  16  Ohio,  125,  Ely,  6  Wis.  244. 

47    Am.  Dec.  368;    Nims   v.   Sherman,  43  6  Georgia  Pacific  R.  R.  Co.  v.   Walker, 

Mich.  45, 4  N.W.  Rep.  434;  Cooke  W.Cooper,  61  Miss.  481. 

18  Oreg.  142,  22  Pac.  Rep.  945;  Bryan  v.  '  Casler  y.  Shipman,  35  N.  Y.  533. 

Brasius  (Ariz.),  31  Pac.  Rep.  519;  Morrow  »  Georgia  Pacific  R.  R.  Co.  v.  Walker, 

V.  Morgan,  48  Tex.  304  ;  King  v.  Brown,  61  Miss.  481 ;  King  v.  Brown,  80  Tex.  276, 

80  Tex.  276, 16  S.  W.  Rep.  39.  ]6  S.  W.  Rep.  39. 

2  Grosvenor  v.  Day,  Clarke  (N.Y.),  109  ;  «  State  Bank  v.  Abbott,  20  Wis.  570. 
Jackson  v.  Bowen,  7  Cow.  13;  Gilbert  v.  And  see  Stackpole  v.  Bobbins,  47  Barb. 
Cooley,  Walk.  (Mich.)  494.  See  chap-  212;  Shirk  u.  Andrews,  92  Ind.  509,  quot- 
ter  XL.  ing  text. 

3  Robinson  v.  Ryan,  25  N.  Y.  320.  it»  Carpentier  v.  Breuham,  40  Cal.  221. 
In  a  late  case  in  Missouri,  however,  it  is        "  Goodenow  v.  Ewer,  16  Cal.  461,  76  Am. 

held  tliat  the  irregular  sale  does  not  oper-     Dec.  540. 

574 


SETTING   ASIDE   OF   SALE.  [§  1680. 

facts  may  justify.  He  may,  by  a  supplemental  bill,  bring  in  all 
persons  interested  in  the  premises  whose  rights  are  not  already  fore- 
closed ;  or,  if  necessary,  he  may  have  the  sale  set  aside  and  obtain  a 
resale  of  the  premises  ;  or  the  court  may  give  such  other  relief  as 
justice  demands.^ 

Although  a  new  action  is  the  proper  remedy  for  a  foreclosure  im- 
perfect through  failure  to  make  all  persons  interested  in  the  equity 
of  redemption  parties  to' the  suit,  the  courts  have  allowed  the  origi- 
nal suit  to  be  reinstated  upon  an  amended  petition,  even  after  an 
interval  of  several  years.^ 

1680.  Redemption  in  such  case  can  only  be  effected  by  sat- 
isfying the  prior  mortgage.  It  is  not  sufficient  to  pay  the  amount 
for  which  the  property  was  bid  off  at  the  sale,  where  this  amount 
is  less  than  the  mortgage  debt ;  and  this  rule  applies  as  well  in 
those  States  where  a  mortgage  is  regarded  as  a  mere  lien,  as  where 
the  common  law  doctrine  still  prevails  that  the  mortgage  is  the 
legal  estate.  Although  the  mortgage  be  regarded  only  as  a  lien  for 
enforcing  the  debt,  the  mortgagee  is  just  as  much  entitled  to  pay- 
ment, and  his  lien  is  not  merged  or  lost  in  the  judgment  of  foreclos- 
ure and  sale.^ 

If  before  the  sale  is  set  aside  the  purchaser  has  sold  the  prop- 
erty or  any  part  of  it  to  another,  who  has  taken  it  in  good  faith, 
for  value,  and  without  notice,  such  sale  will  not  be  affected  by  the 
action  of  the  court  and  the  resale  under  its  authority.  But  the 
court  will  inquire  into  the  circumstances  of  the  purchaser's  sale,  and 
if  any  collusion  be  found,  or  any  facts  fi'om  which  notice  should  be 
inferred,  the  title  will  be  made  void  as  effectually  as  if  it  had  been 
retained  in  the  first  purchaser.*  Judgments  against  the  first  pur- 
chaser after  the  delivery  of  the  deed  to  him,  being  merely  liens 
upon  his  interest,  cease  to  incumber  it  on  the  sale  being  set  aside.^ 
Intervening  purchasers  and  mortgagees  may  be  protected  by  pro- 
viding that  the  money  received  from  the  resale  of  the  property  shall 
be  held  and  not  distributed,  until  the  further  order  of  the  court,  to 
the  end  that  it  may  be  applied  so  far  as  necessary  to  the  repayment 
of  the  moneys  advanced  by  them  in  good  faith  on  the  property.*^ 
One  who  has  purchased  of  the  vendee  at  the  foreclosure  sale,  during 

^  Boggs    V.     Plargravc,    16    Cal.     559;  v.   Beal,   16  Iowa,  68,  85  Am.  Dec.  504; 

Goodenow  v.  Ewer,  16  Cal.  461,  76   Am.  Massie  y.  Wilson,  16  Iowa,  390  ;  Douglass 

J^ec-  540.  V.  Bishop,  27  Iowa,  214. 

2  Loftin  V.  Strow  (Ky.),   4  S.    VV.  Rep.  *  Colby  v.  Kowley,  4  Abb.  Pr.  361. 

180.  5  Colby  V.  Kowley,  4  Abb.  Pr.  361. 

2  Johnson    v.    Harmon,    19    Iowa,    56;  •^  Gould    v.  Libby,   18   Abb.    Pr.  32,   24 

Knowles  v.  Rablin,  20  Iowa,  101  ;    Street  How.  Pr.  440. 

575 


§  1681.]    FORECLOSURE  SALES  UNDER  DECREE  OF  COURT. 

the  pendency  of  a  motion  to  set  the  sale  aside,  is  not  entitled  to 
protection. 1 

1681.  "When  a  sale  is  set  aside  by  order  of  court  the  title  of 
the  purchaser  is  vacated,^  and  the  mortgage  is  restored  to  the 
same  position  it  occupied  before  the  proceedings  were  commenced, 
without  any  affirmative  judgment  of  the  court.  The  satisfaction 
of  the  mortgage  debt  caused  by  the  sale  is  also  vacated.^  The 
mortgage  cannot  be  deemed  to  be  paid,  or 'the  lien  upon  the  prem- 
ises in  any  way  impaired.*  The  purchaser  also  is  entitled  to  be 
put  into  the  same  situation  he  was  before  the  purchase.^  If  the 
sale  be  set  aside,  a  purchaser  who  has  entered  into  possession  is 
held  to  account  for  the  rents  and  profits  received  by  him  while  in 
possession,  for  the  benefit  of  the  mortgagor  or  owner  of  the  equity.^ 
In'  like  manner,  in  case  a  person  interested  in  the  property  was 
not  made  a  party  to  the  suit,  and  consequently  redeems  it  after 
the  sale,  the  purchaser  becomes  liable  to  account  for  the  rents  and 
profits  ;  and  he  is  under  the  same  liability  in  case  he  forecloses  the 
outstanding  incumbrance  by  another  suit.  He  acquires  by  the  sale 
in  such  case  only  the  rights  of  a  mortgagee  in  possession.^ 

1  Quaw  V.  Lameraux,  36  Wis.  626.  5  Trotter  v.  White,  27  Miss.  88. 

2  Freeman  v.  Munns,  15  Abb.  Pr.  468.  ^  Rann  v.  Reynolds,  15  Cal.  459. 

3  Fort  V.  Roush,  104  U.  S.  142.  ■?  Walsh  v.  Rutgers  Fire  lus.  Co.  13  Abb. 
*  Stackpole   v.  Robbins,  47    Barb.    212,  Pr.  33. 

affirmed  48  N.  Y.  665. 

676 


CHAPTER  XXXVir. 

APPLICATION  OF  PKOCEEDS  OF  SALE. 


I.  Payment  of  the  mortgage  debt,  1682- 
lf.83a. 
II.  Disposition  of  the  surplus,  1684-1698. 


III.  Priorities   between  holders  of   several 

notes  secured,  1699-1707. 

IV.  Costs  of  subsequent  mortgagees,  1708. 


I.   Payment  of  tlie  Mortgage  Debt. 

1682.  In  general,  —  The  proceeds  of  the  sale  must  be  disposed 
of  as  directed  in  the  decree  of  court,  or  by  the  rules  and  practice 
adopted  by  it.  In  general  it  may  be  said  that  the  officer  making 
the  sale  is  first  to  pay  out  of  the  proceeds  of  it  to  the  plaintiff  or 
his  attorney  the  amount  of  the  mortgage  debt  with  interest,  and 
the  costs  of  the  proceedings.  He  should  take  a  receipt  for  this,  to 
file  in  court  with  his  report  of  the  sale.  But  the  court,  and  not  the 
officer  appointed  to  make  the  sale,  must  determine  all  questions  of 
priority  of  claim  to  the  proceeds,  and  must  see  that  the  moneys 
reach  the  persons  entitled  to  them.^ 

1683.  If  a  mortgagee  in  order  to  preserve  his  security  has 
been  obliged  to  pay  taxes  or  other  charges  upon  the  mortgaged 
propert}',  he  may  add  the  amount  to  his  mortgage  upon  foreclosure 
of  it.2  A  prior  judgment  lien,^  or  rent  due  on  leasehold  premises,^ 
or  a  prior  mortgage  that  is  due  and  payable,^  if  it  be  a  lien  u'^on 
the  same  premises,  may  be  paid  by  the  junior  mortgagee,  and  he 
will  succeed  by  subrogation  to  the  rights  of  such  prior  party  with- 
out any  assignment  or  transfer  of  the  prior  claim  to  him.  In  such 
cases  the  mortgagor,  on  a  bill  to  foreclose,  is  entitled  to  be  reim- 
bursed the  sum  he  has  paid,  and  to  have  a  decree  of  indemnity  out 
of  the  proceeds  of  the  sale.^ 

The  taxes  and  assessments  due  on  the  property  sold,  if  unpaid, 
are  to  be  deducted  from  the  moneys  arising  from  the  sale,  unless  it 
was  made  subject  to  them  ;  but  a  direction  to  the  officer  in  the  judg- 

^  Eleventh  Ward  Savings  Bank  v.   Hay,        ^  Silver  Lake  Bank  v.  North,  4  Johns. 

55  How.  Pr.  444.  Ch.  370. 

2  See  §  1173  ;  New  York  :  Dale  v.  M'Evers        *  llobinson  v.  Ryan,  25  N.  Y.  320. 
2    Cow.    118;    Burr  I'.    Veeder,  3   Wend.        "^  jj^^nct  y.  Denniston,  5  Johns.  Ch.  35. 
412;  Faure  y.  Winans,  Ilopk.  283,  14  Am.        «  Ellsworth  v.  Lockwood,  42   N.  Y.  89, 

Dec.  545.  96  ;  Dale  v.  M'Evers,  2  Cow.  118. 


VOL.  II.  37 


577 


§  1683  a.] 


APPLICATION  OF  PROCEEDS  OF  SALE. 


ment  to  so  deduct  the  amount  of  them  does  not  authorize  the  pay- 
ment of  them  by  him.^ 

But  except  when  the  mortgngee  has  paid  prior  liens,  the  proceeds 
of  lands  sold  under  a  mortgage  are  applicable  first  to  the  mortgage 
debt,  then  to  subsequent  liens  and  incumbrances,  and  not  to  prior 
and  paramount  liens ;  ^  and  after  that  the  surplus  is  payable  to  the 
mortgagor,  the  owner  of  the  equity  of  redemption,  or  other  person 
entitled.'^ 

1683  a.  The  rule,  that  a  creditor  may  apply  a  payment  made 
by  his  debtor  without  special  direction  to  any  one  of  several 
debts  the  latter  is  owing  him,  is  confined  to  cases  of  voluntary  pay- 
ments. The  proceeds  of  a  foreclosure  sale  are  paid  by  operation 
of  law  ;  and  if  the  mortgage  does  not  provide  for  the  application 
of  the  payments,  or  the  order  of  priority  of  the  claims  secured  by 
it,  the  court  must  make  the  application  in  accordance  with  equita- 
ble principles.*  Where  the  moneys  arise  from  a  foreclosure  sale,  the 
rule  of  equity  most  generallj^  adopted  is  that  they  shall  be  applied 
to  all  the  debts  pro  rata,  each  debt  sharing  in  the  fund,  without 
regard  to  the  priority  of  date,  or  to  the  fact  that  for  some  of  his 
claims  the  creditor  holds  other  security.^ 


1  See  §.1597;  Odpyke  v.  Crawford,  19 
Kans.  604;  Cord  v.  Southwell,  15  Wis.  211. 

2  Keybold  i'.  Herdman,  2  Del.  Ch.  34 ; 
Hotchkiss  V.  Clifton  Air  Cure,  4  Keyes, 
170  ;  Koch  v.  Purcell,  13  J.  &  S.  162. 

3  Day  V.  Town  of  New  Lots,  107  N.  Y. 
148,  13  N.  E.  Rep.  915. 

*  Orleans  Co.  Nat.  Bank  i-.  Moore,  112 
N.  Y.  543,  20  N.  E.  Rep.  3.i7,  affirming  48 
Hun,  70;  Blackstone  Bank  v.  Hill,  10  Pick. 
129  ;  Cage  v.  Her,  5  Sm.  &  M.  410. 

5  Orleans  Co.  Nat.  Bank  ?'.  Jloore,  112 
N.  Y.  543,  20  N.  E.  Rep.  357,  affirming 
48  Hun,  70,  disapproving  of  Wilcox  v. 
Fairhaven  Bank,  7  Allen,  270,  where  upon 
a  sale  of  personal  property  held  as  secu- 
rity by  a  bank  for  the  payment  of  several 
notes,  the  proceeds  not  being  enough  to 
pay  all  the  liabih'ties,  the  bank  applied  the 
money  first  to  the  payment  of  a  note  upon 
which  the  debtor  was  alone  liable,  and  then 
upon    notes  upon    which   the    debtor    and 

578 


sureties  who  might  be  insolvent  were  liable, 
and  the  balance  upon  paper  with  solvent 
sureties.  The  court  held  that  the  bank  had 
the  right  so  to  do.  This  decision  was  placed 
upon  two  grounds,  first,  that  the  sureties 
not  having  paid  or  tendered  in  full  the  debts 
for  which  the  security  was  given  had  no 
claim  to  be  subrogated  to  the  rights  of  the 
bank ;  and  second,  that  the  bank  had  the 
right  to  appropriate  the  whole  proceeds  of 
the  property  to  an}'  debt  it  might  choose. 
This  latter  principle,  say  the  court  in  the 
New  York  case,  "  leaves  out  of  view  en- 
tirely all  rights  or  equities  of  the  surety. 
The  law  has  always  regarded  a  surety  as 
having  some  rights  in  the  security  though 
furnished  directly  by  the  debtor  to  the  cred- 
itor. The  security  having  been  furnished 
by  the  debtor,  the  creditor  must  dispose  of 
it  upon  equitable  principles."  Field  v.  Hol- 
land, 6  Cranch  9,  is  also  disapproved. 


DISPOSITION   OF   THE   SURPLUS.  [§§  1684,  1685. 

11.  Disposition  of  the  Surplus. 

1684.  Usually  the  surplus  money  is  paid  into  court  to  await 
its  order  of  distribution. ^  Any  party  to  the  suit  having  a  lien 
upon  the  premises  subordinate  to  the  mortgage  upon  which  the  sale 
was  made  maj^  file  a  notice  or  petition,  stating  the  nature  and  ex- 
tent of  his  claim,  and  he  may,  according  to  the  general  practice, 
have  an  order  of  reference  to  ascertain  and  report  the  amount  due 
to  him,  and  to  others  having  liens  upon  the  property.  Notice  of 
this  is  given  to  all  claimants  or  others  having  liens,  and  the  referee 
proceeds  to  ascertain  the  amounts  due  to  each.  The  court  has 
power  to  distribute  the  surplus  among  the  persons  entitled,  although 
the  mortgagor  has  died  pending  the  proceedings,  and  his  estate  is 
in  course  of  settlement  in  the  probate  or  surrogate  court.  His 
heirs  and  creditors  must  apply  for  it  there. ^ 

The  omission,  in  a  judgment  foreclosing  a  mortgage,  of  a  provi- 
sion directing  what  disposition  shall  be  made  of  the  surplus,  does 
not  work  a  reversal  of  the  judgment.  The  court  may,  upon  appli- 
cation after  judgment,  direct  the  payment  of  the  surplus  to  any 
one  entitled  thereto.*^ 

1685.  The  court  may  appoint  a  master  or  referee  to  ascertain 
the  rights  of  claimants  to  the  surpkis,  and  may  confirm  or  set  aside 
or  refer  back  his  report,  or  may,  while  the  moneys  remain  in  court, 
vacate  the  report  and  order  further  proof.^  According  to  the  prac- 
tice of  some  courts,  this  reference  is  allowed  as  a  matter  of  course  ; 
while  the  practice  of  others  is  to  allow  it  on  application.^ 

All  parties  to  the  foreclosure  suit  should  have  notice  of  the  ap- 
plication for  the  surplus  money,  that  they  may  appear  and  assert 
their  rights,  and  the  report  should  show  on  its  face  that  they  were 
summoned  ;  and  an  order  of  payment  without  such  notice  will  be 
set  aside. ^  I'^ey  should  prove  the  nature  of  their  respective  liens 
and  the  amounts  due  them  ;  verifying  them  in  the  same  manner 
as  creditors  coming  in  under  a  decree  are  required  to  do  in  court.'' 
The  costs  and  expenses  of  proceedings  for  the  distribution  of  the 
surplus  are  properly  chargeable  to  the  fund.^     A  creditor  who  was 

1  Clark  y.  Carnall,  18  Ark.  209;  Baker  ^  Ward  v.  Montdair  Kailway  Co.  26 
V.  Gladden,  72  Ga.  469.  N.  J.  Eq.  260. 

2  Loucks  V.  Vau  Allen,  11  Abb.  Pr.  «  Franklin  r.  Van  Cott,  11  Paige,  129; 
N.  S.  427.  Smith  v.  Smith,  1.3  Mich.  258. 

3  Brier  v.  Brinkrnan,  44  Kans.  570,  24  "  Ilulbert  i'.  McKay,  8  Paige,  651. 

Pac.  Rep.  1108.  *  Harvey  v.  Harvey,  6  Madd.  91  ;  Oppen- 

*  Mnt,  Life  Ins.  Co.  v.  Salem,  3  Hun,    heimer  v.  Walker,  3  Hun,  30. 
117. 

579 


§§  1686,  1687.]   APPLICATION  OF  PROCEEDS  OF  SALE. 

not  a  party  to  the  suit  generally  bears  the  expense  of  proving  his 
claim  ;  and  the  court  may  refuse  a  creditor  his  costs  under  other 
circumstances. 1 

1686.  Upon  the  filing  of  the  report  of  the  referee  exceptions 
may  be  taken  to  his  findings  of  facts,  and  his  conclusions  upon 
them,  and  upon  notice  to  the  parties  interested  a  hearing  may  be 
had;  but  generally,  if  exceptions  are  not  taken  within  a  specified 
time  after  the  filing  of  the  report,  the  report  stands  confirmed.  An 
order  of  distribution  follows,  directing  the  payment  of  the  moneys 
in  accordance  with  the  report,  when  no  exception  has  been  taken  to 
this,  or  otherwise  in  accordance  with  the  determination  of  court 
upon  the  report.  No  payment  can  properly  be  made  without  such 
final  order  of  court.^ 

A  referee's  report  which  erroneously  shows  a  surplus  in  his  liands 
may  be  amended  so  as  to  show  that  there  was  no  surplus,  by  per- 
mission of  the  court.^ 

1687.  In  general  no  claim  "which  has  not  become  an  absolute 
lien  upon  the  property  can  be  considered,  how^ever  equitable  it 
may  be.*  But  mechanics'  liens,  though  not  established  by  judg- 
ment,^ and  judgment  liens,  though  not  perfected  by  execution,  are 
transferred  from  the  land  to  the  surplus  money.  After  a  sale  upon 
■execution  under  a  judgment  junior  to  the  mortgage,  the  right  of 
redemption  not  having  expired  at  the  time  of  the  foreclosure  sale, 
the  general  lien  of  the  judgment  is  turned  into  a  specific  lien  upon 
the  surplus  to  the  extent  of  the  purchaser's  bid  and  interest  there- 
on.^ If  the  purchaser's  title  has  become  complete  at  the  time  of 
the  foreclosure  sale,  so  that  he  is  entitled  to  a  deed,  he  is  entitled  to 
the  whole  surplus.'  The  claimant,  whatever  his  lien  may  be,  is  not 
•entitled  to  any  part  of  the  surplus  money  arising  from  the  sale  un- 
less he  was  a  party  to  the  suit ;  for  otherwise  his  lien  is  not  affected 
by  the  proceedings,  and  the  land  is  not  discharged  from  it  by  the 
sale  and  transferred  to  the  money  ;  ^  unless,  however,  he  files  a 
cross-bill,  or  voluntarily  appears  in  the  original  suit  and  establislies 

1  Abell  y.  Screech,  10  Ves.  355,  359.  right  to  share  in  the  surplus  by  the  f:ict 

2  Ex  pane  Allen,  2  N.  J.  Eq.  388  ;  Frank-  that  his  judgment  became  dormant  pending 
lin  V.  Van  Cott,  11  Paige,  129.  the  action.     Dempsey  v.  Bush,  18  Ohio  St. 

3  Willson  V.  Schorpp,  16  N.  Y.  Supp.  823.  376.     See  §§  1934,  1935. 

<  Husted   V.   Dakin,    17    Abb.    Pr.  137;  «  Snyder  r.  Stafford,  11  Paige,  71  ;  Clark- 
King  V.  West,  10  How.  Pr.  333  ;  Mut.  Life  son  r.  Skidmore,  46  N.  Y.  297. 
Ins.  Co.  V.  Bowen,  47  Barb.  618.  '   See  §  1934. 

5  Livingston  v.  Mildrum,  19  N.  Y.  440.  »  Winslow  r.  McCall,  32  Barb.  241;  Root 

A  judgment  creditor,  who   was   properly  v.  Wheeler,  12  Abb.  Pr.  294.     See  Koch  v. 

made  a  party  to  the  suit,  does  not  lose  his  Purcell,  13  J.  &  S.  162. 

580 


DISPOSITION   OF   THE  SURPLUS.  [§  1688. 

his  claim. 1  When  the  subsequent  lien-holders  have  been  made  par- 
ties to  the  suit,  the  decree  of  sale  may  properly  direct  the  payment 
of  any  surplus,  after  satisfying  the  mortgage,  among  the  lien  cred- 
itors, according  to  their  respective  rights  and  equities;  and  no  cross- 
bill is  necessary  for  the  purpose.^  It  is  not  necessary  that  the  de- 
cree should  find  the  precise  amount  due  such  lien-holder,  if  it  finds 
that  there  is  due  him  more  than  the  surplus.^ 

The  proceeds  of  the  sale,  after  satisfying  the  mortgage  debt,  may 
he  said,  in  general,  to  stand  in  place  of  the  equity  of  redemption 
to  those  who  had  title  or  right  in  that  or  lien  upon  it."*  If  the 
mortgagor  or  his  vendee  be  the  only  one  interested  in  it,  the  sur- 
plus belongs  wholly  to  him.  If  he  has  died  and  his  heirs  are  made 
parties  to  the  suit,  the  surplus  goes  to  them;^  although  it  is  held 
in  some  cases  that  the  personal  representatives  are  entitled  to  be 
heard  on  the  petition  for  the  surplus,  on  the  ground  that  it  is  per- 
son alt3^^ 

1688,  When  there  are  several  liens  upon  the  premises,  the 
surplus  money  must  be  applied  to  their  discharge  in  the  order  of 
their  priority.''  Generally  a  priority  of  right  may  be  presumed 
from  a  priority  of  record.  This  presumption  will  prevail  between 
the  holders  of  several  mortgages  upon  the  property  ;  and  to  over- 
come this  presumption  the  burden  of  proof  is  upon  the  holder  of  a 
junior  mortgage  to  overcome  it  by  positive  evidence  of  prior  riglit.^ 
Questions  of  priority  between  persons  having  claims  upon  the  equity 
of  redemption  are  properly  settled  after  the  sale,  upon  their  appli- 
cation for  the  surplus  after  it  has  been  brought  into  court,  rather 
than  by  a  stay  of  proceedings  on  the  execution  of  the  order  of  sale.^ 
A  judgment  creditor  may  attack  the  validity  of  a  subsequent  con- 
veyance of  the  equity  of  redemption,  upon  a  reference  for  distribu- 
tion of  the  purchase-money.^^  Until  it  is  ascertained  that  there  will 
be  a  surplus,  the  parties  are  not  permitted  to  litigate  their  claims 
between  themselves.^^  Upon  such  reference  the  referee  may  inquire 
as  to  the  validity  of  the  various  liens,  and  conveyances  as  well  as 
liens  may  be  attacked  as  fraudulent.     The  rights  and  equities  of  the 

1  Ellis  r.  Southwell,  29  111.  549.  tier,  43  Barb.  618;  Peabody  v.  Roberts,  47 

-  Crocker  v.  Lo  wen  thai,  83  111.  579.  Barb.  91;  People  v.  Beroen,  53  N.  Y.404, 15 

s  Walker  v.  Abt,  83  111.  226.  Abb.  Pr.  (N.  S.)  97.     Minnesota:  Brown  v. 

*  Habersham  v.  Bond,  2  Ga.  Dec.  46.  Crook.ston  Ag.  Abso.  34  Minn.  545, 2G  N.  W. 

'^  Shaw  V.  Hoadley,  8  Blackf.  1G5  ;  Beard  Kep.  907. 

V.  Smith,  71  Ala.  568,  quoting  text.  ^  Schenck  v.  Conovcr,  13  N.  J.  Eq.  31, 

<'>  Smith  V.  Smith,  13  Mich.  258.  78  Am.  Dec.  95. 

■  Averill  v.  Loiicks,  6  Barb.  470;    Lith-  lo  Rogers  v.  Ivers,  23  Hun,  414. 

auer  v.  Royle,  17  N.  J.  Eq.  40.  "  Union  Ins.  Co.  v.  Van   Rens.selacr,  4 

^  §  1929.    New  York:  Freeman  ;;.  Schroc-  Paige,  85. 

681 


§  1689.]  APPLICATION   OF   PROCEEDS   OF   SALE. 

lien-holders  or  claimants  are  as  much  before  the  court,  and  as  much 
the  objects  of  its  care,  as  those  of  the  owner  of  the  mortgage  to  be 
'  foreclosed.^ 

The  fund  collected  by  a  receiver,  appointed  generally  without 
reference  to  particular  liens,  on  the  application  of  either  a  senior 
or  junior  incumbrancer,  is  applicable  to  the  liens  on  the  property  in 
the  order  of  their  priority,  just  as  the  proceeds  from  a  sale  are  to 
be  applied. 2  Thus,  where  a  receiver  has  been  appointed  under  a 
first  mortgage,  and  has  collected  rents,  and  upon  a  sale  of  the  prop- 
erty there  is  a  surplus  which  is  insufficient  to  pay  a  second  mort- 
gage upon  the  property,  the  court  may  direct  the  application  of  the 
rents  in  the  receiver's  hands  to  the  payment  of  such  second  mort- 
gage so  far  as  needed,  and  the  balance  to  be  paid  to  the  mortgagor 
or  owner  of  the  equity  of  redemption.^  In  cases  where  a  receiver 
has  been  appointed  on  the  application  of  a  junior  mortgagee  for 
his  benefit  only,  the  rents  collected  by  such  receiver  are  applicable 
to  the  junior  mortgage  to  the  exclusion  of  the  prior  mortgages.* 

A  junior  mortgagee,  who  is  a  party  to  the  suit,  may  have  his 
rights  protected  by  an  appropriate  decree  as  to  the  application  of 
the  surplus,  if  there  be  any  after  satisfying  the  prior  mortgage.^ 
He  should,  however,  appear  and  ask  for  payment  out  of  the  sur- 
plus.^ He  cannot  maintain  a  separate  action  to  reach  the  surplus, 
but  must  enforce  his  claims  in  the  court  which  rendered  the  judg- 
ment of  foreclosure." 

1689.  So  if  there  be  simultaneous  mortgages  upon  the  same 
land,  they  are  in  effect  one  insti'ument,  and,  upon  the  foreclosure 
of  one  of  them,  the  surplus  remaining  after  satisfying  that  is  ap- 
plicable to  the  payment  of  the  other,  although  only  part  of  it  is 
due.^  When  such  mortgages  are  held  by  different  persons,  the 
money  arising  from  the  sale  of  the  property  should  be  equitably 
divided  between  the  mortgagees  ;  ^  the  fact  that  one  was  recorded 
before  the  other  does  not  matter,  if  both  mortgages  were  made 
under  an  agreement  entered  into  by  the  mortgagor  at  the  same  time 
with  both  mortgagees. ^*^ 

1  Bergen  v.  Carman,  79  N.  Y.  146;  Ber-        3  Keogh  v.  McManus,  34  Hun,  521. 
gen  V.  Snedeker,  8  Abb.  N.  C.  50;  Living-        *  §  1524. 

ston  V.  Mildrum,  19  N.  Y.  440,  441  ;  Beek-  *  Ward  v.  McNaughton,  43  CaL  159. 

man    v.   Gibbs,    8   Paige,    511;    Halsted  ?;.  ^  KgutoQ  ^  gp^Qcer,  6  Ind.  321. 

Halsted,  55  N.  Y.  442 ;  Schafer  v.  Reilly,  50  ^  pijess  v.  Buckley,  90  N.  Y.  286. 

N.   Y.   61  ;  Tator  i-.  Adams,  20  Hun,  131.  8  Barbery.  Gary,  11  Barb.  549. 

King  V.  West,    10  How.   Pr.  333,  is  ques-  ^  Eleven tb  Ward  Savings  Bank  v.  Hay, 

tioned  in  Bergen  v.  Garman,  79  N.  Y.  146.  55  How.  Pr.  444. 

2  Williamson    v.    Gerlach,    41    Ohio    St.  i"  Daggett  j;.  Rankin,  31  Gal.  321. 
682. 

582 


DISPOSITION   OF   THE   SURPLUS.  [§§  1690,  1691. 

1690.  The  complainant  himself  may  present  and  establish 
a  claim  to  the  surplus  moneys  by  reason  of  another  debt  due 
him  from  the  mortgagor.  Tlie  validity  and  amount  of  this  may 
be  ascertained  upon  a  reference,  in  the  same  manner  as  when  a 
claim  is  presented  by  any  other  person  ;  ^  and  there  is  no  obliga- 
tion upon  him  to  establish  his  claim  beforehand.^ 

Upon  a  foreclosure  to  satisfy  an  instalment  of  interest  or  princi- 
pal before  the  maturity  of  the  whole  principal  debt,  a  surplus 
remaining  after  the  payment  of  such  instalment  should  be  applied 
in  reduction  of  the  principal  debt.^ 

1691.  The  equities  of  subsequent  incumbrancers  of  part  of 
the  premises  are  to  be  regarded.  In  general  it  may  be  said  that 
the  same  equities  which  govern  the  order  of  sale  of  property  sub- 
ject to  other  liens,  or  accompanied  by  other  security  in  the  hands  of 
the  mortgagee,*  ^PP^J  ^^so  to  the  distribution  of  the  proceeds  of 
sales  under  like  circumstances.  If  the  mortgage,  under  the  circum- 
stances of  the  case,  is  a  charge  upon  all  the  land  covered  by  the 
mortgage,  and  only  a  part  of  it  is  foreclosed,  the  proceeds  must  be 
applied  to  the  discharge  of  a  proportional  part  only  of  the  debt,  and 
the  balance  to  the  persons  having  incumbrances  upon  that  part  in 
their  order. ^ 

Upon  the  foreclosure  of  a  mortgage  upon  several  lots  which  were 
also  covered  by  junior  mortgages  on  the  separate  lots,  a  sale  was 
ordered  in  the  inverse  order  in  which  the  junior  mortgages  were 
given.  On  the  sale  of  the  last  parcel,  the  surplus  after  paying  the 
blanket  mortgage  was  distributed  among  the  holders  of  the  junior 
mortgages  according  to  the  dates  at  which  those  mortgages  respec- 
tively became  liens  ;  except  that  in  no  case  was  a  greater  amount 
paid  on  account  of  any  mortgage  on  any  one  lot  than  was  received 
for  that  lot  at  the  sale.^ 

1  Beekman  Fire  Ins.  Co.  v.  First  M.  E.  Apjjeals,  said :  "  It  is  clear  enough  that,  in 
Church,  29  Barb.  658;  Field  v.  Hawxhurst,  such  a  sale  bj  separate  parcels  instead  of 
9  How.  Pr.  75.  in  block,  each  parcel,  as  it  went  to  discharge 

2  Field  V.  Hawxhurst,  9  How.  Pr.  75.  the  general  mortgage,  contributed  to  relieve 

3  Ohio  Central  R.  R.  Co.  I'.  Central  Trust  the  last  lot  from  that  lien.  If,  therefore, 
Co.  133  U.  S.  83,  10  Sup.  Ct.  Rep.  235;  through  the  sale,  a  surplus  arose,  it  cannot 
Chicago  &  Vincennes  R.  R.  Co.  v.  Fosdick,  be  regarded  as  constituting  a  specific  fund, 
106  U.  S.  47,  68,  1  S.  Ct.  10.  subject  to  the  specific  liens  upon  the  last  lot ; 

*  See  chapter  xxxvi.  but,  under  equitable  rules  in  the  marshalling 

s  Mickle  I'.  Rambo,  1  N.J.  Eq.  501.     See,  of  the  debtor's  asset.s,  as  a  common  fund, 

also.  Frost  v.  Peacock,  4  Edw.  678.  distributing  to  all  of  the  lienors  upon  the 

0  Burcheil  v.  Osborne,  119  N.  Y.  486,  23  lands  sold,  in  the  order  of  the  dates  when 

N.  E.  Rep.  896,  afllirming  6  N.   Y.   Supp.  they  became  liens  upon  the  debtor's  prop- 

863,  modifying  5  N.  Y.Supp.  404.     Gray,  J.,  crty.    The  lien  of  each  junior  incumbrancer, 

delivering    the  judgment  of   the  Court  of  which  had  been  affixed  to  the  land  sold  to 

683 


§§  1691  a-1693.]      application  of  proceeds  of  sale. 

1691  a.  In  a  proceeding  for  the  distribution  of  surplus 
moneys,  there  is  no  room  for  the  application  of  the  doctrine  of 
marshalling  securities,  whereby  a  creditor  who  has  a  double  fund 
to  which  he  may  resort  for  satisfaction  of  his  debt,  and  another  cred- 
itor has  only  one  of  these  funds,  the  first  creditor  will  be  required 
primarily  to  resort  to  that  fund  for  the  satisfaction  of  his  debt  over 
which  he  has  the  exclusive  control.  That  rule  of  course  implies 
the  right  of  the  creditor  with  the  double  fund  or  security  to  appi'O- 
priate  both  funds  if  necessary.  Therefore  a  second  mortgagee,  ap- 
plying for  surplus  moneys  arising  from  a  sale  on  foreclosure  of  the 
first  mortgage,  will  not  be  compelled  to  release  his  lien  in  favor  of 
subsequent  mortgagees,  on  proof  merely  that  his  debt  is  amply 
secured,  by  other  property  on  which  his  mortgage  is  a  lien,  no  mat- 
ter how  strong  or  apparently  conclusive  the  evidence  may  be  that 
such  other  property  is  sufficient  to  pay  his  claim.  The  court  can- 
not release  a  lien  without  actual  payment,  merely  because  witnesses 
testify  and  the  referee  finds  that  the  holder  of  the  lien  has  other 
property  of  his  debtor  to  which  he  can  resort  for  the  satisfaction  of 
his  debt.i 

1692.  A  prior  unrecorded  mortgage  is  preferred  to  a  subse- 
quent judgment,  if  there  was  no  fraudulent  intent  on  the  part  of  the 
mortgagee  in  withholding  the  mortgage  from  record,  although  it 
was  given  to  secure  future  advances  or  liabilities. ^  It  is  also  held 
that  a  mortgage  which  is  equitable  only,  not  being  formally  exe- 
cuted, is  preferred  to  a  subsequent  judgment  if  given  for  a  present 
consideration.^ 

1693.  Dower  and  homestead  in  surplus.  —  A  widow  who  as 
wife  had  joined  her  husband  in  a  mortgage  of  land  of  which  lie 
was  seised  is  in  equity  entitled  to  dower  in  surplus  moneys  arising 
from  a  foreclosure  sale  of  the  property,  after  satisfying  the  mort- 
gage debt.  To  the  extent  of  the  debt  secured  by  the  mortgage 
in  which  she  released  her  right,  her  dower  interest  is  extinguished, 
and  she  is  dowable  only  of  the  surplus.^     The  surplus  stands  in 

discharge  the  general  lien  of  the  mortgage  485,  29  N.  E.  Rep.  958,   16    N.  Y.  Supp. 

foreclosed,  would,  it  seems  to  me,  equitably  33. 

attach  to  the  fund  resulting  from  the  sale  ^  gge  §§  460,  461 ;  Thomas  v.  Kelsej-,  30 

of  the  lands,  in  the  order  in  which  the  lien  Barb.  268. 

had  been  originally  created.     Upon  such  a  ^  See  §470. 

sale  as  this,  when  a  surplus  arises  as  the  *  See   §   666  ;    Ohio :    Fox   v.   Pratt,   27 

final  result,  the   liens  would  in  equity  be  Ohio  St.  512;  Culver  v.  Harper,  27  Ohio 

transferred  from  the  land  sold  to  the  ulti-  St.  464;  State  Bank  v.  Hinton,  21  Ohio  St. 

m.Ue   fund   arising,  and   naturally  in    the  509;    Taylor  v.  Fowler,  18  Ohio,  567,  51 

order  of  their  priority  as  such."  Am.  Dec.  469  ;  Rands  v.  Kendall,  15  Ohio, 

1  Quackenbush   v.   O'Hare,    129     N.  Y.  671;    linger   v.  Leiter,   32    Ohio    St.    210. 

584 


DISPOSITION   OF   THE   SURPLUS.  [§  1693. 

the  place  of  the  equity  of  redemption  and  retains  all  the  properties 
of  realty,  and  does  not  become  personalty  for  the  purposes  of  dis- 
tribution among  the  next  of  kin.  While,  therefore,  a  widow  may 
claim  dower  in  the  surplus,  she  cannot  claim  the  surplus  as  personal 
property  under  a  statutory  exemption.^  If  her  husband  die  after 
the  judicial  sale  and  the  distribution  of  the  surplus,  of  course  she 
cannot  claim  any  interest  in  it ;  but  if  he  die  after  the  sale  and 
while  the  surplus,  or  even  a  part  of  it,  is  within  the  control  of  the 
court,  she  is  dowable  of  the  surplus  so  far  as  her  right  can  be 
equitably  paid  from  the  portion  remaining.^  If,  however,  some  of 
those  interested  in  the  surplus  have  received  their  portions  before 
her  claim  was  made,  they  cannot  be  called  upon  to  refund,  nor  can 
the  others,  who  have  not  received  their  shares,  be  called  upon  to 
suffer  loss  by  reason  of  the  payments  made.  She  is  in  such  case 
dowable  only  of  the  surplus  remaining  undistributed,  and  not  of 
the  whole  surplus.^ 

Even  after  the  surplus  had  been  paid  under  order  of  the  court 
to  an  assignee  of  the  mortgagor,  the  widow,  who  had  neglected  to 
appear  in  the  foreclosure  suit,  and  was  not  notified  of  the  refer- 
ence respecting  the  distribution  of  the  surplus,  was  allowed  to 
maintain  an  action  to  recover  her  dower  in  the  surplus  against  such 
assignee.* 

When  land  is  sold  under  a  mortgage  containing  a  waiver  of  home- 
stead exemption,  the  mortgagor  is  entitled  to  the  exemption  out  of 
the  surplus  as  against  subsequent  judgment  creditors.^  And  so 
when  a  right  of  homestead  has  been  released  in  a  mortgage,  and 
this  is  foreclosed  against  the  widow  and  heirs  of  the  mortgagor,  and 

New  York:  Matthews  v.  Duryee,  45  Barb.  England,  prior  to  the  statute  of  3&  4  Wm. 

69,  17   Abb.  Pr.  2.56;  Titus  i'.    Neilson,  5  IV.  ch.  105,  a  widow  was  not  dowable  of  an 

Johns.   Ch.   452;    Hawley   v.   Bradford,  9  equity  of  redemption,  and   of    course   she 

I'aige,   200 ;  Bell   v.   Mayor  of   N.  Y.    10  was  not  of  the  surplus  after  a  foreclosure 

Paige,  49;  Blydenburgli   v.    Northrop,   13  sale. 

How.  Pr.  289.     New  Jersey:  Ilinchman  v.  ^  State  Bank  ?;.  Hinton,  21  Ohio  St.  509. 

Stiles,  9  N.  J.  Eq.  454.     South  Carolina :  ^  Matthews    v.    Duryee,    45    Barb.   69. 

Tibbetts  u.  Langley  Manufacturing  Co.  12  Sutherland,  J.,  dissented,  saying:  "If  the 

S.  C.  465.     Indiana:  Leary  v.  Shaffer,  79  plaintiff  has  any  remedy,  it  appears  to  me 

Ind.  567.    Illinois  :  Dillman  v.  Will  Co.  Nat.  that  it  must  be  by  a  motion  or  proceeding 

Bank,    138    111.  282,  27  N.  E.  Rep.  1090;  to  vacate  or  modify  the  order  under  which 

Holden  v.  Dunn,  144  111.  413,  33  N.  E.  Rep.  the  money  was  paid  to  the  defendant." 

413.     Mississippi:    Pickett  v.  Buckner,  45  ^  Quinn's  Appeal,  86  Pa.  St.  447  ;  Ilillw. 

Miss.  226.     Arkansas:    Hewitt  i'.  Cox,  55  Johnston,  29   Pa.  St.  362;   Vermont   Sav. 

Ark.  225,  15  S.  W.  Rep.  1026.     South  Da-  Bank  v.  Elliott,  53  Mich.  256,    18  N.  W. 

kota:  Laws  1893,  ch.  76.     Oregon:    Laws  Rep.  805  ;  Smith  y.  Rumsey, 33  Mich.  183  ; 

1893,  p.  194.  Lozo  y.  Sutherland,  38   Mich.  168;  Ander- 

1  Beard  v.  Smith,  71  Ala.  568.  son  v.  Odell,  51  Mich.  492,  16  N.  W.  Rep. 

-  Pickett  V.  Buckner,  45  Miss.  226.     In  870. 

685 


§§  1694,  1695.]      APPLICATION   OF   PROCEEDS   OF   SALE. 

there  be  a  surplus,  this  is  payable  to  the  widow  to  the  extent  of  the 
homestead  exemption.^  When  homestead  land  is  sold  under  a  pre- 
existing mortgage,  the  homestead  exemption  attaches  to  the  money- 
arising  from  the  sale  in  excess  of  the  amount  required  to  satisfy  the 
mortwafje  debt.^ 

1694.  Inchoate  right  of  dower.  —  In  some  cases  the  courts  have 
gone  so  far  as  to  protect  the  inchoate  interest  of  the  wife  during 
coverture  in  the  surplus  arising  from  a  mortgage  sale,  by  permit- 
ting her,  as  against  judgment  creditors,  to  have  one  third  of  the 
residue  invested  for  her  benefit,  and  kept  invested  during  the  joint 
lives  of  herself  and  her  husband,  and  the  interest  paid  to  her  during 
her  own  life,  in  case  of  her  surviving  her  husband.^  But  it  would 
seem  doubtful  whether  a  court  of  equity,  in  the  exercise  of  its  ordi- 
nary jurisdiction,  has  the  power  to  enforce  such  a  doctrine;*  and 
the  authority  is  against  allowing  the  wife  any  such  right  against 
her  husband's  creditors.^ 

In  a  recent  case  in  Indiana,  however,  where  a  wife  had  joined 
her  husband  in  executingr  a  mortfrase  of  his  lands  to  secure  his 
indebtedness,  and  he  was  adjudged  a  bankrupt,  whereby  her  in- 
choate third  of  his  lands  became  absolute  under  the  statute,  it  was 
held  to  be  her  right,  upon  foreclosure  of  the  mortgage,  to  have  a 
decree  that  the  other  two  thirds  be  first  sold,  if  it  appear  that  such 
two  thirds  is  of  value  sufficient  to  discharge  the  debt.^  The  wife 
in  such  case  does  not  occupy  the  position  of  a  surety  of  the  debt 
secured,  and  she  cannot  maintain  a  bill  to  charge  the  mortgagee 
with  the  proceeds  of  sales  of  crops  also  covered  by  the  mortgage, 
which  proceeds,  by  arrangement  between  the  mortgagee  and  the 
mortgagor,  her  husband,  were  applied  to  the  payment  of  unsecured 
debts.7 

1695.  The  surplus  of  a  sale  made  after  the  death  of  the 
mortgagor  is  real  estate,  though  personal  if  the  sale  is  made  in  his 
lifetime.^  A  devise  of  the  property  in  trust  to  pay  debts  does  not 
make  personal  assets  of  the  surplus.^     The  rule  in  Massachusetts 

1  McTaggart  v.  Smith,  14  Bush.  414,  7  v.  Hazelrigg,  117  Tnd.  408,  18  N.  E.  Rep. 
Reporter,  369.  603. 

2  People  V.  Stitt,  7  Bradw.  294.  ^  Creath  v.  Creath,  86  Tenu.  659,  8  S.  W. 

3  §§  114,  1933 ;  Denton  v.  Nanny,  8  Barb.  Rep.  847. 

618  ;  Vreeland  v.  Jacobus,  19  N.J.  Eq.  231 ;  »  Wright  v.  Rose,  2  S.  &  S.  323  ;  Dun- 
Bowles  V.  Hoard,  71  Mich.  150,  39  N.  W.  ning  v.  Ocean  Nat.  Bank,  61  N.  Y.  497,  19 
Rep.  24.  See,  however,  Riddick  v.  Walsh,  Am.  Rep.  293,  and  cases  cited ;  Fliess  v. 
15  Mo.  519.  Buckley,  22  Hun,  551  ;  Steinhardt  v.  Cun- 
*  Scribner  on  Dower,  p.  480,  §  30.  ningham,  8  N.  Y.  Supp.  627. 

5  Dean  v.  Phillips,  17  Ind.  406.  »  §  1931 ;  Clay  v.  Willis,  1  B.  &  C.  364. 

6  Leary  v.  Shaffer,  79  Ind.  567  ;  Crawford 

686 


DISPOSITION   OF   THE   SURPLUS.  [§§  1696-1698- 

is,  however,  different.  The  legal  title  to  the  proceeds  of  such  sale 
is  held  to  be  in  the  executor  or  administrator,  by  force  of  the  con- 
tract of  mortgage,  though  when  he  has  collected  the  money  he  holds 
it  in  trust  for  the  heirs  or  devisees,  as  the  case  may  be.^ 

1696.  A  lessee  for  years  of  the  mortgagor  is  not  entitled 
to  any  part  of  the  surplus  arising  from  the  sale.  The  lease  is  ex- 
tinguished by  the  foreclosure,  and  all  title  of  the  lessee  is  cut  off. 
His  only  claim  would  be  one  against  the  mortgagor  for  a  breach  of 
the  covenant  for  quiet  enjoyment,  if  the  lease  contained  such  a 
covenant.^ 

1697.  An  attachment  of  the  proceeds  of  the  foreclosure  sale 
is  subject  to  the  claims  of  mortgagees  or  other  incumbrancers  of 
record.3  If  the  mortgagor  after  the  maturity  of  the  mortgage  be 
summoned  as  garnishee  or  trustee  of  the  mortgagee,  the  latter  can- 
not defeat  the  lien  acquired  by  the  attaching  creditor  by  a  subse- 
quent assignment  of  the  mortgage.  If  the  assignee  by  such  assign- 
ment foreclose  the  mortgage,  the  lien  of  the  attaching  creditor  must 
be  first  satisfied.^  It  is  said  in  this  case  that  such  creditor  has  the 
same  right  to  enforce  the  mortgage  that  tlie  mortgagee  had. 

1698.  Upon  a  sale  under  a  junior  mortgage,  a  surplus  belongs 
to  the  mortgagor,  and  is  not  applied  to  the  satisfaction  of  a  prior 
mortgage  ;  for  the  equity  of  redemption  which  is  sold  belongs  to 
the  mortgagor,  and  the  presumption  of  law  is,  that  the  purchaser  of 
it  only  pays  for  it  its  worth  in  excess  of  the  prior  mortgage  debt.^ 
But  sometimes  the  whole  estate  is  sold  under  the  decree  of  court, 
or  by  consent  of  the  parties  interested,  in  which  case  the  prior  par- 
ties in  interest  may  be  made  parties  to  the  proceedings  in  relation 
to  the  distribution  ;  ^  and  a  prior  mortgagee  who  has  been  in  posses- 
sion must  account  for  the  rents  and  profits  received  by  him.^ 

There  may  also  be  other  circumstances  under  which  equity  will 
require  the  mortgagee,  out  of  the  money  received  by  him  on  the 

1  Varnum  v.  Meserve,  8  Allen,  158,  160.  In  New  York  provision  is  made  for  de- 
It  may  be  observed  that  the  contract  in  positing  the  surplus  with  the  surrojrate  for 
Wright  V.  Rose,  2  S.  &  S.  323,  was  also  to  distribution.  Code  Civ.  Pro.  §  2798;  /n  re 
pay  the  mortgagor,  his  "  executors  or  ad-  Stilwell,  139  N.  Y.  337,  34  N.  E.  Rep.  777. 
ministrators,"  so  that  the  cases  are  in  con-  ^  Burr  v.  Stenton,  .52  Barb.  377,43  N.  Y. 
flict.     Dwight,   C,  in   Dunning  v.   Ocean  462. 

Nat.  Bank,  61  N.  Y.  497,  19  Am.  Rep.  293,  3  West  v.  Shryer,  29  Ind.  624. 

observes  that  "  the    true    construction    of  *  Campbell  v.  Nesbitt,  7  Neb.  300. 

those  words  undoubtedly  is,  that  the  prom-  ^  Western  Ins.  Co.  v.  Eagle  Fire  Ins.  Co. 

ise  is  to  pay  the  executors  or  administra-  1  Paige,  284;  Hanger  v.  State,  27  Ark.  667  ; 

tors  whenever  it  might  have  been  collected  Firestone  v.  State,  100  Ind.  226. 

by  the  mortgagor,  as  e.  y.  where  the  land  ®  Porter  v.  Barclay,    18   Ohio    St.    546; 

was  sold  in  his  lifetime."     See  chapter  xl.  Dodge  v.  Silvcrthorn,  12  Wis.  644. 

(liv   IG  "  Goring  v.  Shreve,  7  Dana,  64. 

587 


§  1699.] 


APPLICATION  OF  PROCEEDS  OF  SALE. 


sale  applicable  to  the  payment  of  his  demand,  to  pay  a  prior  in- 
cumbrance ;  as,  for  instance,  where  he  has  in  the  first  place  con- 
veyed the  land  to  the  mortgagor  with  covenants  against  all  incum- 
brances and  taken  back  the  mortgage  for  the  purchase-money,  if 
there  be  a  prior  mortgage  upon  the  property  the  proceeds  will  be 
applied,  in  the  first  place,  to  the  discharge  of  that,  and  the  amount 
so  applied  deducted  from  his  claim  under  the  mortgage.^ 

III.  Priorities  between  Holders  of  several  Notes  secured. 

1699.  Priority  of  maturity.  —  It  is  the  settled  rule  in  several 
States  that  where  a  mortgage  has  been  given  to  secure  several  notes 
falling  due  at  various  times,  and  the  notes  are  assigned  to  different 
holders,  the  one  first  maturing  is  to  be  first  paid  out  of  the  mort- 
gaged property  ;  the  mortgage,  as  to  the  several  notes,  being  equiv- 
alent to  so  many  successive  mortgages.^  The  rule  rests  upon  the 
fact  that  the  holder  of  the  note  first  maturing  may  foreclose  upon 
non-payment,  without  waiting  for  the  succeeding  notes  to  mature. 
The  power  to  do  so  implies  a  priority  of  lien  in  the  notes  first  falling 
due.^    The  priorit}^  arising  from  priority  of  maturity  is,  however,  gen- 


1  §  1504;  Van  Riper  v.  Williams,  2  N.  J. 
Kq.  407  ;  Johnson  v.  Blydenbuigh,  31  N.  Y. 
427;  Stiger  v.  Bacon,  29  N.  J.  Eq.  442; 
Woodruff  u.  Depne,  14  N.  J.  Eq.  168 ;  Union 
Nat.  Bank  v.  Tinner,  25  N.  J.  Eq,  495  ;  Day- 
ton V.  Dusenbiuy,  25  N.  J.  Eq.  110;  White 
I'.  Stretch,  22  N.  J.  Eq.  76. 

2  See  §§  606,  822,  1459, 1478, 1577,  1939. 
Illinois:  Koestert-.  Burke, 81  111.436  ;  Her- 
rington  v.  McCollum,  73  111.  476  ;  Gardner 
V.  Diederichs,  41  111.  158;  Sargent  i'.  Howe, 
21  111.  148  ;  Funk  v.  McReynoUl,  33  111.  481 ; 
Vansant  v.  AUmon,  23  111.  30 ;  Schultz  v. 
Plankititon  Bank,  141  111.  116,  30  N.  E. 
Bep.  346,  affirming  40  111.  App.  462.  Wis- 
consin :  Pierce  iJ.  Shaw,  51  Wis.  316;  Ma- 
rine Bank  v.  International  Bank,  9  Wis.  57  ; 
Wood  V.  Trask,  7  Wis.  566,  76  Am.  Dec. 
230.  Indiana  :  State  Bank  v.  Tweedy,  8 
Blackf.  447,46  Am.  Dec.  486;  Hough  v. 
Osborne,  7  Ind.  140;  Grouse  v.  Holman, 
19  Ind.  30;  Murdock  v.  Ford,  17  Ind.  52; 
Stanley  v.  Beatty,  4  Ind.  134;  Davis  v. 
Langsdale,  41  Ind.  399;  Minor  v.  Hill,  58 
Ind.  176,  26  Am.  Rep.  71  ;  People's  Savings 
Bank  v.  Finney,  63  Ind.  460  ;  Doss  v.  Dit- 
mars,  70  Ind.  451 ;  Gerbery.  Sharp,  72  Ind. 
553  ;  Horn  v.  Bennett  (Ind.),  34  N.  E.  Rep. 
321,956.    Iowa:  Hinds  r.  Mooers,  1 1  Iowa, 

688 


211;  Massie  v.  Sharpe,  13  Iowa,  542  ;  Walker 
t;.  Schreiber,  47  Iowa,  529  ;  Lcavitt  v.  Rey- 
nolds, 79  Iowa,  348,  44  N.  W.  Rep.  567. 
Ohio  :  Winters  v.  Franklin  Bank,  33  Ohio, 
St.  250;  Kyle  v.  Thompson,  11  Ohio  St. 
616.  West  Virginia:  Norris  v.  Beaty,  6 
W.  Va.  477.  483,  Vermont  :  Belding  v. 
Manly,  21  Vt.  550.  Missouri :  Huffard  v. 
Gotiberg,  54  Mo.  271.  Kansas:  Richard- 
son V.  McKim,  20Kans. 346.  Virginia:  Mc- 
Cliutic  V.  Wise,  25  Gratt.  448,  18  Am.  Rep. 
694 ;  Gwathmeys  v.  Ragland,  1  Rand.  466. 
Alabama :  M'Vay  v.  Bloodgood,  9  Port.  549. 
New  Hampshire :  Hunt  v.  Stiles,  10  N.  H. 
466.  Florida  :  Wilson  v.  Hayward,  6  Fla. 
171,  190. 

3  Thompson  v.  Field,  38  Mo.  320; 
Mitchell  V.  Ladew,  36  Mo.  526,  88  Am. 
Dec.  156;  Ellis  v.  Lamrae,  42  Mo.  153; 
Wilson  V.  Hayward,  6  Fla.  171.  And  see 
Chew  V.  Buchanan,  30  Md.  367,  where  the 
question  was  raised  but  not  decided.  See, 
also,  Bnrhans  v.  Mitchell,  42  Mich.  417,4 
N.  W.  Rep.  178. 

The  reason  given  for  this  rule,  as  also 
that  given  for  a  priority  founded  on  pri- 
ority of  assignment,  does  not  seem  to  be 
convincing.  Penzel  v.  Brookmire,  51  Ark. 
105,  10  S.  W.  Rep.  15,  per  Buttle,  J. 


PRIORITIES   BETWEEN  HOLDERS   OF   NOTES  SECURED.       [§  1700. 


erally  subject,  as  against  the  assignoi*,  to  the  priority  arising  from  the 
assignment  of  one  or  more  of  tlie  mortgage  notes,  with  the  benefit 
of  the  mortgage  security  ;'  but  as  between  the  assignees  of  different 
notes,  the  security  of  the  assignee  of  the  first  note  is  still  a  first 
mortgage  as  against  assignees  of  the  succeeding  notes,  though  the 
first  note  is  not  assigned  until  after  the  others.^  The  priority  of  the 
notes  is  fixed  and  governed  by  the  notes  themselves,  upon  their  face, 
and  not  by  any  contingency. 

This  rule  of  priority  according  to  maturity  is  not  affected  by  a 
provision  in  the  mortgage  whereby  all  the  notes  become  due  upon 
any  default.  To  hold  that  in  case  all  the  notes  mature  together 
under  such  a  provision  the  rule  of  priority  should  be  changed,  and 
the  holders  of  the  notes  should  share  pro  rata,  would  introduce  an 
element  of  uncertainty  whether  the  notes  first  maturing  by  their 
terms  should  be  first  paid  or  not,  and  consequently  their  value  would 
be  affected.^ 

1700.  Payment  of  notes  not  due.  —  The  surplus  cannot  be  paid 
to  the  holder  of  the  notes  not  due  :  courts  do  not  make  contracts 
for  parties,  nor  require  them  to  pay  their  debts  before  they  have 
agreed  to  pay  them.  The  prudent  method  in  taking  securities  of 
this  kind  is  to  provide  against  all  these  contingencies  by  the  express 
provisions  of  the  deed.  A  court  of  equity  will,  however,  save  the 
holder  of  subsequent  notes  from  the  loss  of  his  security,  through  the 
payment  of  the  surplus  to  the  mortgagor,  by  staying  payment,  and 
providing  that  it  be  held  to  meet  the  notes  not  due,*     This  legal 


1  §  1701 ;  Farkhurst  v.  Steam  Engine 
Co.  107  Ind.  594,  8  N.  E.  Rep.  635  ;  Horn 
V.  Bennett  (Ind.).  34  N.  E.  Rep.  321. 

2  Horn  V.  Bennett  (Ind.),  34  N.  E.  Rep. 
321, 956  ;  Leavitt  v.  Reynolds,  79  Iowa,  348, 
44  N.  W.  Rep.  567;  Humphreys  v.  Mor- 
ton, 100  111.  592;  Koester  v.  Burke,  81  111. 
436. 

3  The  Supreme  Court  of  Iowa,  when 
asked  to  adopt  this  qualified  rule,  said  : 
"  The  rule  contended  for  would  render  it 
possible  for  the  mortgagor  and  holder  of 
the  notes  last  falling  due  to  defeat  the 
holder  of  the  first  notes  of  his  priority  by 
the  makers  failing  to  pay  the  interest  on 
the  last  note,  whereby  all  became  due,  and 
the  holder  of  the  last  be  entitled  to  a  pro 
rata  share  of  the  securit}'.  .  .  .  One  of  the 
grounds  upon  whieh  the  pro  tanio  rule  is 
supported  is,  that  making  the  notes  mature 
at  different  times  evidences  an  agreement 
that  they  are  to  have  priority  in  the  order 


in  which  they  fall  due.  Hence  cases  of 
default  like  this  are  not  such  a  falling  due 
as  expunges  from  the  contract  the  agree- 
ment as  to  priority.  .  .  .  Our  conclusion  is, 
that  the  maturity  of  the  notes  by  reason  of 
default  in  making  prior  payment  is  not 
such  a  falling  due  as  should  change  the 
rule  for  the  application  of  the  security." 
Leavitt  v.  Reynolds,  79  Iowa,  348,  44  N.  W. 
Rep.  567,  followed  in  Horn  v.  Bennett 
(Ind.),  34  N.  E.  Rep.  321 ;  Doss  v.  Ditmars, 
70  Ind.  451  ;  Gerber  v.  Sharp,  72  Ind. 
553. 

*  Iowa:  Isett  v.  Lucas,  17  Iowa,  503; 
Grapcngether  i'.  Fejervary,  9  Iowa,  163,  74 
Am.  Dec.  336;  Sangster  v.  Love,  11  Iowa, 
580;  Reeder  v.  Carey,  13  Iowa,  274;  Mas- 
sie  V.  Sharpe,  13  Iowa,  542 ;  Hinds  r. 
Mooers,  11  Iowa,  211  ;  Rankin  v.  Major,  9 
Iowa,  297  ;  Bank  of  the  U.  S.  v.  Covert, 
13  Oliio,  240.  Indiana:  State  Bank  v. 
Tweedy,  8  Blackf.  447,  46  Am.  Dec.  486; 

689 


§   1701.]  APPLICATION    OF   PROCEEDS   OF   SALE. 

eil'ect  of  the  mortgage  cannot  be  varied  or  altered  by  parol  testi- 
mony. But  it  would  seem  that,  when  the  mortgagee  assigns  tlie 
notes  to  different  persons,  he  may,  by  agreement  with  them,  fix 
their  rights  of  priority  in  payment.^ 

1701.  Priority  of  assignment.  —  An  assignee  of  the  mortgage 
with  part  of  the  debt  is  generally  entitled  to  payment  in  preference 
to  the  mortgagee  who  retains  one  of  the  notes  ;  ^  while,  as  between 
different  assignees  of  mortgage  bonds  or  notes,  priority  of  assign- 
ment generally  gives  no  preference,  though  the  cases  are  not  in  har- 
mony. The  equity  arising  from  priority  of  assignment,  where  this 
equity  is  held  to  give  a  preference,  is  generally  regarded  as  para- 
mount to  the  equity  arising  from  the  maturity  of  the  notes  as 
against  the  assignor  ;  yet,  as  between  different  assignees,  the  equity 
arising  from  priority  of  maturity  is  paramount.^  But  if  a  mort- 
gagee assigns  one  note  before  its  maturity,  together  with  the  mort- 
gage, with  an  agreement  or  intention  that  this  note  shall  have  pri- 
ority in  payment,  and  the  mortgagee  retaining  the  other  note,  which 
has  already  matured,  afterwards  assigns  such  other  note,  the  first 
assignee  is  entitled  to  priority  in  distribution  of  the  proceeds  of  a 
foreclosure  of  the  mortgage.^  Generally,  however,  it  may  be  said 
the  effect  of  an  assignment  of  one  of  the  mortgage  notes  is  to  carry 
a  je>ro  rata  interest  in  the  security,  subject  to  tlie  paramount  claim 
of  notes  previously  due  ;  ^  and  to  give  no  right  based  upon  priority 
of  assignment,  except  as  against  the  assignor.*^ 

The  fact  that  an  assignee  of  one  of  the  mortgage  notes  has  also 
an  assignment  of  the  mortgage  gives  him  no  priority  of  right  over 
the  assignee  of  anotlier  note  separate  from  the  mortgage,  but  both 
are  equally  entitled  to  the  benefit  of  the  security." 

Where  a  holder  of  a  mortgage  assigns  a  part  of  it,  although  he 
warrants  only  the  existence  of  the  debt  at  the  time  of  the  transfer, 
it  would  be  contrary  to  good  faith  to  permit  him,  after  receiving  the 

Gerber  v.  Sharp,    72  Ind.   553 ;    Miuor  v.  Engine  Co.    107    lud.    594,   8  N.   E.   Rep. 

Hill,  58  Ind.  176,  26  Am.  Hep.  71  ;    Peo-  635. 

pie's  Savings  Bank  v.  Finney,  63  Ind.  460;  ^  Winters  v.  Franklin  Bank,  33  Ohio  St. 

Doss  u.  Ditmars,  70  Ind.  451.  250;    Pavkhurst  v.  Watertown  Steam  Eu- 

1  Grattan  v.  Wiggins,  23  Gal.  16.  gine  Co.  107  Ind.  594,  8  N.  E.  Rep.  635; 

2  §  822  :  Bryant  v.  Damon,  6  Gray,  564  ;  People's  Sav.  Bank  v.  Finney,  63  Ind.  460 ; 
Warden  v.  Adams,  15  Mass.  233;  Cullura  Doss  v.  Ditmars,  70  Ind.  451. 

v.  Erwin,  4  Ala.  452;  Salzman  u.  Creditors,  *  Miller     v.     Washington     Sav.     Bank 

2  Rob.  (La.)  241 ;  VanRensselaeri;.  Stafford,  (Wash.),  31  Pac.  Rep.  712. 

Hopk.  569 ;  Clovs'es  v.  Dickenson,  5  Johns.  ^  State  Bank  v.  Tweedy,  8  Blackf.  447, 

Ch.    235  ;    Pattison   v.   Hull,  9  Cow.  747 ;  46  Am.  Dec.  486. 

Mechanics'  Bank   v.  Bank   of   Niagara,   9  ^  Bank   v.   Covert,    13    Ohio,    240.     See 

Wend.  410;   Stevenson  v.   Black,   1   N.  J.  §822. 

Eq.  338 ;    Parkhurst  v.  Watertown  Steam  ">  Waterman  v.  Hunt,  2  R.  I.  298. 

690 


PRIORITIES   BETWEEN   HOLDERS   OF   NOTES   SECURED.       [§  1701  a. 

money  for  this  part  of  the  claim,  to  come  into  competition  with  his 
assignee,  if  the  property  prove  insufficient  to  pay  the  claims  of  both.^ 
Unless  the  intention  be  plainly  declared  on  the  face  of  the  assign- 
ment that  the  assignee  is  to  share  i^ro  rata  in  the  security  with  the 
assignor,  the  equitable  construction  of  it  is  that  it  must  in  the  first 
place  be  applied  for  the  payment  of  the  part  of  the  debt  which  was 
assigned.^  A  proviso  in  the  assignment,  that  it  shall  not  be  so  con- 
strued as  to  prevent  the  mortgagee  from  receiving  or  disposing  of 
the  residue  of  the  mortgage,  does  not  entitle  him  to  participate 
with  the  assignee  in  the  proceeds  of  it  when  these  are  less  than  the 
debt.3 

1701  a.  Pro  rata  division.  In  many  States,  however,  the  rule 
has  been  adopted  that  the  proceeds  of  the  mortgaged  property 
should  be  divided  pro  rata  among  all  the  notes  secured  by  the 
mortgage,  without  regard  either  to  the  times  of  their  falling  due  or 
the  dates  of  their  assignment,  unless  the  assignment  show  a  con- 
trary intention.^     The  fact  that  one  of  the  notes  has  become  barred 


1  Salzman  v.  Creditors,  2  Rob.  (La.)  241  ; 
BarkduU  v.  Herwig,  30  La.  Ann.  618;  Mc- 
Clintic  V.  Wise,  25  Gratt.  448,  18  Am.  Kep. 
694 ;  Anderson  v.  Sharp,  44  Ohio  St.  260, 
quoting  text;  Griggsby  v.  Hair,  25  Ala. 
327. 

2  Waterman  v.  Hunt,  2  E.  I.  298  ;  Bry- 
ant V.  Damon,  6  Gray,  564.  See,  also, 
Wright  y.  Parker,  2  Aik.  212;  Richardson 
V.  McKim,  20  Kan.s.  346. 

3  Mechanics'  Bank  v.  Bank  of  Niagara, 
9  Wend.  410. 

*  §  822.  California :  Phelan  v.  Olney,  6 
Cal.  478;  Grattan  v.  Wiggins,  23  Cal.  16. 
In  Maryland  :  Chew  v.  Buchanan,  30  Md. 
367,  Bartol,  C.  J.,  dissenting;  Dixon  v. 
Clayville,  44  Md.  575.  Michigan:  English 
V.  Carney,  25  Mich.  178;  Cooper  v.  Ul- 
mann,  Walk.  Ch.  251  ;  McCurdy  v.  Clark, 
27  Mich.  445  ;  Wilcox  v.  Allen,  36  Mich. 
160;  Jennings  v.  Moore,  83  Mich.  231,47 
N.  W.  Rep.  127.  In  Mississippi:  Parker  u. 
Mercer,  7  Miss.  320,  38  Am.  Dec.  438; 
Cage  V.  Her,  13  Miss.  410,  43  Am.  Dec. 
.521;  Henderson  v.  Herrod,  18  Miss.  631; 
Jefferson  College  v.  Prentiss,  29  Miss.  46  ; 
Bank  of  England  v.  Tarleton,  23  Miss. 
173;  Pugh  y.  Holt,  27  Miss.  461;  David- 
son V.  Allen,  36  Miss.  419.  In  Pennsyl- 
vania: Donley  v.  Hays,  17  S.  &  R.  400, 
Gibson,  C.  J.,  dissenting  ;  Bctz  v.  Heebner, 
1  Pa.  280 ;  Perry's  Appeal,  22  Pa.  St.  43, 


60  Am.  Dec.  63 ;  Hancock's  Appeal,  34  Pa. 
St.  155;  Mohler's  Appeal,  5  Pa.  St.  418, 
420,  47  Am.  Dec.  413  ;  Hodge's  Appeal,  84 
Pa.  St.  359  ;  Fourth  Nat.  Bank's  Appeal, 
123  Pa.  St.  473,  16  Atl.  Rep.  779,  per  Pax- 
son,  C.  J.  Tennessee  :  Ewing  v.  Arthur,  1 
Humph.  537  ;  Smith  v.  Cunningham,  2 
Tenn.  Ch.  565,  569;  Andrews  v.  Hobgood, 
1  Lea,  693;  Ellis  v.  Roscoe,  4  Baxter,  418. 
Texas  :  Delespine  i'.  Campbell,  52  Tex.  4  ; 
Paris  Exchange  Bank  v.  Beard,  49  Tex. 
358,  363 ;  Robertson  v.  Guerin,  50  Tex. 
317.  Connecticut :  Lewis  v.  De  Forest,  20 
Conn.  427.  Maine  :  Johnson  v.  Candage, 
31  Me.  28;  Moore  v.  Ware,  38  Me.  496. 
Massachusetts  :  Eastman  v.  Foster,  8  Met. 
19.  Georgia:  Russell  y.  Car r,  38  Ga.  459. 
Louisiana :  Ventress  v.  Creditors,  20  La- 
Ann.  359 ;  Lovell  v.  Cragin,  136  U.  S. 
130,  10  Sup.  Ct.  Rep.  1024.  New  Jersey : 
Collerd  v.  Huson,  34  N.  J.  Eq.  38.  North 
Carolina:  Kitchin  v.  Grandy,  101  N.  C.  86, 
7  S.  E.  Rep.  663  ;  Wliitehead  v.  Morrill, 
108  N.  C.  65,  12  S.  E.  Rep.  894.  South 
Carolina:  Graham  v.  Jones,  24  S.  C.  241. 
Minnesota  :  Wilson  v.  Eigeubrodt,  30  Minn. 
4,  13  N.  W.  Rep.  907.  Arkansas:  Penzel 
V.  Brookmire,  51  Ark.  105,  10  S.  W.  Rep. 
15.  Nebraska:  Studebaker  v.  M'Curger, 
20  Neb.  500,  30  N.  W.  Rep.  686 ;  Todd  v. 
Creamer  (Neb.),  54  N.  W.  Rep.  674. 

691 


§  1702-1704.]      APPLICATION   OF   PROCEEDS   OF   SALE. 

by  the  statute  of  limitations  since  the  sale  does  not  affect  the  right 
of  the  holder  to  share  in  the  proceeds.^ 

1702.  It  is  competent,  however,  for  the  parties  to  change  this 
general  rule  of  law  in  respect  to  priority,  by  an  express  agreement 
in  the  deed  that  the  note  lust  falling  due  shall  have  priority  of  lien;^ 
or  by  a  subsequent  agreement  made  between  the  mortgagee  and  his 
assignee  upon  the  assignment  of  part  of  the  notes,^  reserving  equal 
rights  to  the  holders  of  the  notes  not  assigned,*  or  otherwise  estab- 
lishing the  equality  or  inequality  of  lien  of  the  several  notes.  An 
agreement  in  the  mortgage  that  the  notes  secured  shall  have  pri- 
ority in  the  order  of  their  maturity  may  be  changed  by  an  agree- 
ment made  upon  the  assignment  of  the  notes  first  maturing  that  the 
assignee  shall  hold  them  subject  to  the  priority  of  the  other  notes 
secured  by  the  mortgage.^ 

1703.  When  the  mortgage  provides  that  upon  any  default 
the  whole  mortgage  debt  shall  become  due  and  payable,  then 
there  can  be  no  preference  given  to  the  holder  of  the  note  on  which 
default  was  made  over  the  holder  of  the  note  not  then  due,  because 
by  such  default  the  whole  debt  became  due  at  the  same  time.  A 
pro  rata  distribution  should  then  be  made  between  the  holders  of 
different  parts  of  the  debt.^ 

1704.  If  the  mortgagor  has  a  right  of  set-off  against  the 
mortgage  notes,  which  are  in  the  hands  of  various  assignees,  and 
the  offset  is  made  against  one  note,  the  proceeds  of  the  sale  should 
be  so  distributed  as  to  make  the  final  distribution  conformable  with 
their  equitable  rights  under  the  law;  as,  for  instance,  under  the 
rule  adopted  in  Kentucky,  to  make  all  the  assignees  contribute 
ratably  to  the  set-off." 

1  Weaver  y.  Alter,  3  Woods,  152.  and  the  courts  sliould  hesitate  before  pro- 

2  Ellis  V.  Lamme,  42  Mo.  153.  nouncing  a  rule  that  would  render  it  uncer- 

3  Grattan  v.  Wiggins,  23  Cal.  16.  tain  whether  security  for  such  notes  would 
*  Howard  v.  Schmidt,  29  La.  Ann.  129.  be  applied  pro  rata  or  pro  tanto.  Our  con- 
s  Anglo-American    Land    Co.    v.    Bush  elusion  is  that  the  maturity  of  the  notes,  by 

(Iowa),  50  N.  W.  Hep.  1063.  reason  of  default  in  making  prior  payment, 
6  See  §§  1179-1183;  Bank  of  the  U.  S.  is  not  such  a  falling  due  as  should  change 
V.  Covert,  13  Ohio,  240  ;  Bushfield  v.  Meyer,  the  rule  for  the  application  of  the  security." 
10  Ohio  St.  334;  Pierce  v.  Shaw,  51  Wis.  In  Missouri,  also,  it  is  held  that,  without  an 
316,  8  N.  W.  Rep.  209  ;  Whitehead  v.  Mor-  express  agreement  to  that  effect,  the  priority 
rill,  108  N.  C.  65,  12  S.  E.  Rep.  894,  quoting  of  right  arising  from  the  time  of  p;iyment  of 
text.  the  several  notes  secured  is  not  impaired  by 
Contra  in  Iowa:  Leavitt  v.  Reynolds,  79  such  a  provision  in  a  mortgage  or  deed  of 
Iowa,  348,  44  N.  W.  Rep.  567.  Given,  J.,  trust.  Hurck  y.  Erskine,45  Mo.  484;  Milch- 
said  :  "  Notes  of  this  description,  secured  by  ell  v.  Ladew,  36  Mo.  526,  88  Am.  Dec.  156  ; 
mortgages  and  deeds  of  trust,  enter  largely  Thompson  v.  Field,  38  Mo.  320. 
into  the  business  transactions  of  the  State,  "  Campbell  v.  Johnston,  4  Dana,  177. 

692 


PRIORITIES   BETWEEN  HOLDERS   OF   NOTES   SECURED.       [§§  1705-1707. 

1705.  When  the  mortgage  secures  debts  due  to  different 
persons  there  may  be  either  express  or  implied  priorities  between 
them.  An  agent,  with  the  assent  of  his  principal,  having  included 
in  a  mortgage  to  the  latter  a  debt  due  from  the  mortgagor  to  him- 
self, it  was  litld,  in  the  absence  of  any  agreement  as  to  preference, 
that  the  debt  due  the  principal  should  first  be  paid  out  of  the  pro- 
ceeds of  a  foreclosure  sale.^ 

It  is  frequently  the  case  that  the  instrument  of  assignment  by  its 
terras  indicates  or  confers  a  preference  upon  the  assignee  as  to  the 
part  of  the  claim  assigned  to  him. 

1706.  Rights  of  sureties.  —  When  the  mortgage  secures  several 
debts,  for  some  of  which  there  are  sureties  who  are  not  parties  to 
the  mortgage,  the  mortgagee  becomes  a  trustee  for  the  sureties  to 
the  amount  of  the  funds  thus  provided  for  their  indemnity  ;  and  he 
must  see  that  the  proceeds  of  a  sale  of  the  property  are  applied  in 
just  proportions  to  the  discharge  of  the  debts  on  which  the  sureties 
are  bound.  Neither  the  mortgagor  nor  the  mortgagee  will  be  al- 
lowed to  defeat  the  rights  of  the  sureties,  who  have  a  right  to  be 
indemnified  out  of  the  property. 

If  in  such  case  some  of  the  debts  include  usurious  interest,  the 
mortgagor  alone  can  avail  himself  of  this  defence.  A  surety  on  a 
debt  paying  legal  interest  cannot  complain.  He  gets  all  the  security 
that  he  bargained  for  when  the  mortgage  was  executed.^ 

If  the  holder  of  one  of  the  notes  secured  by  the  mortgage  is  a 
surety  upon  the  others,  and  is  insolvent,  his  share  should  be  dis- 
tributed to  the  others.  The  assignee  for  the  benefit  of  creditors  of 
such  insolvent  surety  stands  in  the  latter's  shoes,  and  can  assert  no 
better  right  to  the  fund  than  could  the  assignor.^ 

1707.  Sale  for  instalment.  — As  already  noticed,  when  a  sale  is 
made  of  the  entire  premises  for  the  non-payment  of  an  instalment 
of  the  mortgage,  and  there  is  a  surplus  after  paying  the  amount 
due  on  the  mortgage  at  the  time,  the  court  may  retain  this,  and 
apply  it  to  the  subsequent  instalments  as  they  become  due;^  or,  as 
some  courts  hold  or  statutes  provide,  may  immediately  apply  the 
surplus  to  the  payment  of  the  notes  not  yet  matured.^ 

1  Philips  V.  Belden,  2  Edw.  1.  •*  §  1459;  McDowell  v.  Lloyd,  22  Iowa, 

2  Fielder  v.  Varucr,  45  Ala.  429.  448. 

3  Fourth  Nat.  Bank's  Appeal,  123  Pa.  St.  ^  Fowler  v.  Johnson,  26  Minn.  338,  3  N. 
473,  16  Atl.  Rep.  779.  W.  Kep.  986,  6  N.  W.  Rep.  486. 

VOL.  II.  38  •  693 


§  1708.]  APPLICATION   OF   PROCEEDS   OF   SALE. 

IV.   Costs  of  Subsequent  3Iortgagees. 

1708.  "When  proceeds  of  the  sale  under  a  decree  in  equity 
are  insufficient  to  pay  all  the  incumbrances  in  full,  each  mort- 
gagee is  entitled  to  be  paid  his  costs  as  well  as  his  debt,  according  to 
his  priority,  whether  the  bill  be  filed  by  the  first  or  any  subsequent 
mortgagee.  The  rule  adopted  in  equity  under  a  creditor's  bill, 
when  a  fund  is  in  court  and  is  to  be  distributed  among  several 
claimants  pro  rata,  or  when  the  construction  of  a  will  is  in  doubt, 
and  the  rights  of  different  claimants  are  to  be  determined,  that  the 
costs  of  all  the  parties  shall  in  the  first  place  be  paid  out  of  the 
fund,  has  no  application  in  the  case  of  the  foreclosure  of  mortgages, 
for  the  parties  have  priority  according  to  fixed  rules  of  law.  Of 
course  it  may  happen  that  a  subsequent  mortgagee,  after  having  in- 
curred costs  of  suit  and  of  sale,  may  lose  these  as  well  as  his  demand 
also,  as  where  the  proceeds  of  sale  are  only  sufficient  to  pay  the 
debt  and  costs  due  to  the  first  mortgagee  ;  but  this  was  the  risk 
assumed  by  taking  the  subsequent  incumbrance.  This  rule  seems 
best  adapted  to  secure  the  rights  of  the  parties,  and  is  well  estab- 
lished both  in  our  own  courts  ^  and  in  those  of  England.^  Where, 
however,  a  first  mortgagee  having  a  mortgage  containing  a  power  of 
sale  lost  his  deed,  and  was  obliged  to  resort  to  a  suit  in  equity  to 
obtain  a  sale,  subsequent  incumbrancers  were  allowed  their  costs, 
although  the  proceeds  of  sale  were  not  sufficient  to  pay  the  plaintiff 
in  full,^  apparently  because  there  should  have  been  no  occasion  to 
come  into  equity.  And  where  a  mortgagee  with  a  power  of  sale 
filed  a  bill.  Baron  Alderson  said  that  the  subsequent  incumbrancers, 
being  brought  into  court  without  necessity,  were  entitled  to  their 
costs,  although  the  proceeds  of  sale  were  insufficient  to  pay  the  first 
mortgage.* 

1  Mayer  v.  Salisbury,  1  Barb.  Cli.  546 ;  ^  Upperton  v.  Harrison  7  Sim.  444,  ami 

Smack  v.  Duncan,  4  Sandf.  Ch.  621 ;  Farm  cases  there  cited, 

ers'  Loan  &  Trust  Co.  v.  Millard,  9  Paige,  ^  Woutner  v.  Wright,  2  Sim.  543. 

620;  Boyd  v.  Dodge,  10  Paige,  42;  Lith-  *  Cooke  v.  Brown,  4  Y.  &  C.  Exch.  227. 
auer  v.  Koyle,  17  N.  J.  Eq.  40. 

694 


CHAPTER   XXXVIII. 

JUDGMENT   IN    AN    EQUITABLE   SUIT   FOR   A   DEFICIENCY. 

1709.  Generally.  —  By  reference  to  the  statutory  provisions  of 
the  several  States  respecting  foreclosure,  it  will  be  observed  that,  in 
most  of  the  States  in  which  foreclosure  is  effected  by  an  equitable 
action,  authority  is  given  to  the  court  to  adjudge  the  payment  by 
the  mortgagor,  or  any  other  person  liable  for  the  debt,  of  any  defi- 
ciency there  may  be  remaining  unsatisfied  after  a  sale  of  the  mort- 
gaged land.  The  codes  of  several  States  contain  a  provision,  to 
which  reference  only  is  made  in  the  statutes  relating  specifically  to 
the  subject  of  foreclosure,  as  follows  :  "  In  actions  to  foreclose  mort- 
gages, the  court  shall  have  power  to  adjudge  and  direct  payment  by 
the  mortgagor  of  any  residue  of  the  mortgage  debt  that  may  re- 
main unsatisfied  after  a  sale  of  the  mortgaged  premises,  in  cases  in 
which  the  mortgagor  shall  be  personally  liable  for  the  debt  secured 
by  such  mortgage ;  and  if  the  mortgage  debt  be  secured  by  the 
covenant  or  obligation  of  any  person  other  than  the  mortgagor, 
the  plaintiff 'may  make  such  person  a  party  to  the  action  ;  and  the 
court  may  adjudge  payment  of  the  residue  of  such  debt  remaining 
unsatisfied,  after  a  sale  of  the  mortgaged  premises,  against  such 
other  person,  and  may  enforce  such  judgment  as  in  other  cases." 
This  provision  exists  in  substantially  the  same  terms  in  the  States 
of  New  York,  Wisconsin,  Nebraska,  and  South  Carolina.^  Provi- 
sions differing  somewhat  from  the  foregoing  are  found  in  other 
States. 

The  Supreme  Court  of  the  United  States,  in  1864,  in  order  to 
assimilate  the  practice  in  the  circuit  courts  to  the  general  practice 
in  the  state  courts,  adopted  a  rule  that  in  all  suits  in  equity  for  the 
foreclosure  of  mortgages  in  the  circuit  courts,  or  in  any  of  the  courts 
of  the  Territories,  a  decree  may  be  rendered  for  any  deficiency 
found   due    after    applying  the   proceeds  of    the   sale.^      This  rule 

1  New  York:    Code  of   Civ.   Pro.  R.   S.  South  Carolina:  G.  S.  1882,  Code  of  Civ. 

7th  ed.  §  1627.     See  Brewer  v.  Longnecker,  Pro.  §  188. 

1.5  N.  Y.  Supp.  937.  ^  i  Wall.  p.  v;    Connecticut  Mut.  Life 

Wisconsin:  R.  S.  1878,  §  31.56.  Ins.  Co.  v.  Tyler,  8  Biss.  369.     It  had  pre 

Nebraska:  Code  of  Civ.  Pro.  §§  847,849 ;  vionsly  been   decided    that   such   a   decree 

Comp.  Stats.  1885,  p.  726.  could  not  be  made  in  the  absence  of  such  a 

695 


§  1709  a.-\ 


JUDGMENT   IN   AN   EQUITABLE   SUIT 


applies  to  the  courts  of  the  District  of  Columbia.^  The  power 
vested  in  the  federal  courts  by  this  rule  is  a  discretionary  one,  and 
may  be  exercised  or  not,  as  the  court  deems  best.^  But  this  rule 
does  not  authorize  the  entry  of  a  decree  for  a  balance  due  the  mort- 
gagee over  and  above  the  proceeds  of  sale,  if  such  balance  has  not 
become  payable.-^ 

1709  a.  The  judgment  contemplated  is  one  for  the  balance 
of  the  debt  after  applying  the  proceeds  of  the  sale.  The  first 
step  is  to  ascertain  what  the  amount  of  this  balance  is.  Therefore 
a  judgment  for  a  deficiency  can  be  had  only  when  the  sale  is  com- 
pleted ;  and  it  can  only  be  known  what  the  deficiency  is  upon  the 
coming  in  of  the  report  of  sale,  and  the  confirmation  of  this.*  The 
usual  practice  is  for  the  sheriff  or  referee'to  state  the  amount  of  the 
deficiency  in  his  report  of  the  sale,  and  to  determine  who  of  the  de- 
fendants are  liable  to  pay  the  same  to  the  plaintiff.  This  is  pro- 
vided for  in  the  original  judgment.'^  There  can  generally  be  no 
contingent  judgment  for  such  deficiency  entered  beforehand  ;  ^  at 
any  rate  no  execution  can  be  issued  beforehand.'^  An  execution  for 
a  deficiency  should  not  be  issued  without  special  application  to  the 
court,  and  notice  to  the  defendant.^  But  when  the  person  liable 
for  deficiency  does  not  appear  in  the  cause,  it  is  the  practice,  after 
calculation  of  the  amount,  to  award  execution  for  the  deficiency 
without  giving  him  notice  of  the  motion.^ 

Before  there  can  be  a  judgment  for  a  deficiency  in"  an  equitable 


rule.     Noonan  v.  Lee,  2    Black,   499 ;  Or- 
cliard  V.  Hughes,  2  Black,  499,  1  Wall.  73. 

^  Fieedman's  Savings  &  Trust  Co.  v. 
Dodge,  7  Wash.  L.  K.  92,  affirmed  Dodge 
(;.  Freedraan's  Savings  &  Tiust  Co.  106  U. 
S.  445;  Hayden  v.  Snow,  9  Biss.  511. 

•2  Phelps  V.  Loyhed,  1  Dill.  512. 

3  Ohio  Cent.  k.  R.  Co.  v.  Central  Trust 
Co.  133  U.  S.  83,  10  Sup.  Ct.  Rep.  235. 

*  Bank  of  Rochester  v.  Emerson,  10 
Paige,  359;  Baird  v.  McConkey,  20  Wis 
297  ;  Bache  v.  Doscher,  9  J.  «&  Sp.  1 50 
Tormey  v.  Gerhart,  41  Wis.  54 ;  Mickie  r 
Maxfieid,  42  Mich.  304,  3  N.  W.  Rep.  961 
Crowley  v.  Harader,  69  Iowa,  83,  28  N.  W, 
Rep.  446 ;  Hull  v.  Young,  29  S.  C.  64,  6  S 
E.  Rep.  938;  Presley  v.  McLean,  80  Ala 
309;  Winston  v.  Browning,  61  Ala.  80, 
Sayre  v.  Elyton  Land  Co.  73  Ala.  85  ;  Clapp 
V.  Maxwell,  13  Neb.  542,  14  N.  W.  Rep.  633. 

In  Utah,  however,  it  is  held  that,  where 
a  mortgagor  has  conveyed  the  premises  to 
another   bv  warranty   deed,  who   is   made 

596 


co-defendant  in  foreclosure,  the  court  has 
power  to  enter  a  personal  judgment  against 
the  former,  and  require  execution  to  be 
issued  thereon  before  selling  the  mortgaged 
lands.  Brereton  v.  Miller,  7  Utah,  426,  27 
Pac.  Rep.  81. 

s  McCarthy  v.  Graham,  8  Paige,  480. 

The  reference  is  to  ascertain  the  unpaid 
balance  of  the  foreclosure  decree.  Other 
accounts  and  transactions  outside  the  mort- 
gage debt  cannot  be  considered.  Perdue 
V.  Brooks  (Ala),  11  So.  Rep.  282. 

^  Cobb  V.  Thornton,  8  How.  Pr.  66; 
Bache  v.  Doscher,  9  J.  &  Sp.  150.  But  see 
Moore  v.  Shaw,  15  Hun,  428;  McCarthy  v. 
Graham,  8  Paige,  480. 

"  "Howe  V.  Lemon,  37  Mich.  164  ;  Ayer 
V.  Rivers,  64  Iowa,  543,  21  N.  W.  Rep.  83 ; 
Russell  V.  Hank  (Utah),  34  Pac.  Rep.  245. 

8  Gies  v.  Green,  42  Mich.  107,  3  N.  W. 
Rep.  283  ;  Ransom  v.  Sutherland,  46  Mich. 
489,  9  N.  W.  Rep.  .530. 

9  White  V.  Zust,  28  N.  J.  Eq.  107. 


FOR    A    DEFICIENCY.  [§  1709  a. 

suit  for  foreclosure  there  must  be  a  decree  of  foreclosure.  If  the 
plaintiff  fails  to  establisli  his  mortgage,  he  cannot  in  this  suit  have  a 
personal  judgment  for  the  debt.  "It  was  never  intended  to  permit 
the  joinder  in  the  same  complaint  of  two  separate  causes  of  action, 
—  one  at  law  to  recover  a  personal  judgment  on  the  bond  for  the 
debt,  and  the  other  in  equit}'  to  procure  a  sale  of  the  land  covered 
by  the  mortgage  given  to  secure  the  same  debt  and  the  application 
of  the  proceeds  thereon.  .  .  .  The  established  rule  that,  when  equity 
has  obtained  jurisdiction  of  the  parties  and  the  subject-matter  of  the 
action,  it  may  adapt  the  relief  to  the  exigencies  of  the  case,  even  to 
the  extent  of  rendering  a  personal  judgment,  in  order  to  prevent  a 
failure  of  justice,  does  not  appU^  here.  That  rule  applies  when  the 
general  basis  of  fact  upon  which  equitable  relief  was  sought  has  been 
made  out,  but  for  some  reason  it  becomes  impracticable  to  grant 
such  relief,  or  where  it  would  be  insufficient ;  and  not  to  a  case  like 
this,  where  it  appears  that  there  never  was  in  fact  any  ground  for 
equitable  relief  whatever,  but  the  sole  remedy  was  an  action  at 
law."  1 

The  deficiency  may,  however,  be  ascertained  not  only  by  a  judg- 
ment to  foreclose  tiie  mortgage  under  which  it  is  sought  to  establish 
a  deficiency,  but  it  may  also  be  ascertained  in  an  action  to  foreclose 
a  prior  mortgage  to  which  the  defendant  was  a  party.  The  surplus 
arising  from  the  sale  under  the  prior  mortgage  is,  as  to  the  junior 
mortgagee,  for  the  purposes  of  the  lien  of  his  mortgage,  to  be  treated 
as  real  estate.  The  court  may  render  judgment  against  the  mort- 
gagor for  the  deficiency  due  on  the  junior  mortgage,  after  applying 
thereon  the  amount  received  from  the  sale  in  excess  of  the  prior 
mortgage. 2 

1  Dudley  v.  Congregation,  138  jST.  Y.  451,  jurisdiction  to  render  a  personal  judgment 
34  N.  E.  Rep.  281,  per  O'Brien,  J. ;  Beck  v.  against  the  mortgagor  upon  his  bond  or 
Allison,  56  N.  Y.  366.  And  see  Bradley  v.  covenant  to  pay  the  mortgage  debt,  and 
Aldrich,  40  N.  Y.  504  ;  Wheelock  v.  Lee,  such  a  judgment  could  only  be  obtained  by 
74  N.  Y.  495 ;  Hawes  v.  Dobbs,  137  N.  Y.  an  action  at  law.  Noonan  v.  Lee,  2  Black, 
465,  33  N.  E.  Rep.  5G0.  499 ;  Orchard  v.  Hughes,  1  Wall.  73  ;  Dunk- 
In  Tennessee,  however,  it  is  held,  on  the  ley  v.  Van  Buren,  3  Johns.  Ch.  330 ;  Jones 

ground  of  the  maxim  that,  thecourt  having  v.  Conde,  6  Johns.  Ch.  77  ;   Globe  Ins.  Co. 

jurisdiction  for  one  purpose,  it  may  assume  v.  Lansing,  5  Cow.  380;  Sprague  v.  Jones, 

it  for  all  purposes,  that  a  decree  for  a  defi-  9   Paige,   395;   Equitable  L.  Ins.  Soc.   v. 

ciency  can  be  had  under  a  general  prayer  Stevens,  63  N.  Y.  341 ;  Burroughs  v.  Toste- 

for  relief.     Nolen  v.  Woods,  12  Lea,  615.  van,  75  N,  Y.  567.     This  was  an  exception 

2  Frank  v.  Davis,  135  N.  Y.  275,  31  N.  E.  to  the  general  rule  that,  where  a  court  of 
Rep.  1100.  Mr.  Chief  Justice  Earl,  deliv-  equity  obtains  jurisdiction  of  an  action,  it 
ering  judgment,  said:  "In  England,  and  will  retain  it,  and  administer  full  relief, 
in  this  State  prior  to  the  Revised  Statutes,  both  legal  and  equitable,  so  far  as  it  per- 
the  court  of  chancery,  in  an  action  to  fore-  tains  to  the  same  transactions  or  the  same 
close  a  mortgage,  was  not  supposed  to  have  subject-matter.     Lynch  v.  Met.  El.  Ry.  Co. 

597 


§  1709  5.] 


JUDGMENT   IN   AN   EQUITABLE   SUIT 


A  foreclosure  sale  made  before  the  date  fixed  by  the  decree  and 
without  notice  to  the  defendant  is  illegal,  and  no  judgment  of  de- 
ficiency can  be  founded  on  such  sale.^ 

The  sum  for  which  the  mortgaged  premises  were  sold  must,  so 
long  as  the  sale  stands,  be  taken,  as  between  the  parties  to  the  suit, 
as  a  conclusive  test  of  their  value  ;  and  the  amount  of  the  deficiency 
for  which  a  decree  shall  be  entered  is  ascertained  accordingly,  and 
not  by  taking  the  market  value  at  the  time,  in  case  this  happens  to 
exceed  the  amount  obtained  at  the  sale.^ 

The  officer  making  the  sale  cannot  by  acknowledging  satisfaction 
of  the  decree,  bind  the  mortgagee,  unless  he  actually  receives  satis- 
faction in  lawful  money.  Thus  a  mortgage  covering  two  lots  was 
foreclosed  by  suit,  and,  upon  a  sale  of  one  of  the  lots  by  the  mar- 
shal, the  defendants  paid  to  the  mai*shal  the  difference  between  the 
sum  bid  and  the  amount  of  the  decree,  which  he  received  as  being 
'■'  in  full  of  all  demands  as  deficiency."  The  bidder  failed  to  comply 
with  the  bid,  and  that  lot  was  sold  again  for  a  less  price,  leaving  a 
deficiency.  It  was  held  that  the  plaintiff  was  not  bound  by  the 
marshal's  receipt,  and  was  entitled  to  have  the  second  lot  sold  to 
pay  the  deficiency,  though  third  persons  had  taken  a  mortgage 
thereon  on  the  faith  of  the  marshal's  receipt."^ 

1709  h.  The  deficiency  contemplated  is,  moreover,  such  as 
has    been    ascertained   by  a   sale   under   the  decree.     Therefore, 


129  N.  Y.  274,  29  N.  E.  Rep.  315 ;  McGean 
V.  Met.  EI.  Ry.  Co.  133  N.  Y.  9,  30  N.  E. 
Rep.  647  (recently  decided  in  this  court). 
The  purpose  of  this  rule  was  to  relieve  par- 
ties from  the  expense  and  vexation  of  two 
suits,  one  equitable  and  the  other  legal, 
where  the  whole  controversy  could  be  ad- 
justed in  the  one  suit.  There  was  no  rea- 
son, so  far  as  we  can  perceive,  for  taking 
the  case  of  a  mortgage  foreclosure  out  of 
this  convenient  and  beneficent  rule ;  and  the 
law-makers  of  this  State  took  early  occa- 
sion to  change  the  law  by  providing  that  a 
personal  judgment  for  a  deficiency  maj'  be 
given  in  the  foreclosure  action  against  any 
party  liable  for  the  mortgage  debt.  .  .  . 
We  are  asked  to  hold  that  enough  of  the 
old  chancery  rule  is  left  to  prevent  a  defi- 
ciency judgment,  unless  the  deficiency  be 
ascertained  by  a  sale  in  the  action  in  which 
the  judgment  is  asked.  We  think  we  are 
justified  in  holding  that  that  rule  has  been 
entirely  swept  away,  and  that,  the  general 
rule  in  equity  practice  above    referred  to, 

598 


except  as  it  is  modified  by  the  provisions 
of  the  Code,  governs  foreclosure  as  other 
equitable  actions." 

1  Shier  v.  Prentis,  55  Mich.  175,  20  N.  AY. 
Rep.  892. 

2  Snyder  v.  Blair,  33  N  J.  Eq.  208. 

3  Kershaw  v.  Dyer,  6  Utah,  239,  24  Pac. 
Rep.  621.  Chief  Justice  Zane  for  the  court 
said  :  "  The  marshal,  as  we  have  said,  was 
required  to  convert  into  money  so  much  of 
the  land  described  in  the  decree  as  would 
pay  the  debt,  and  to  pay  it  to  the  plaintiffs. 
He  had  no  authority  to  turn  over,  in  satis- 
faction of  it,  a  promise  of  a  bidder  to  pay 
a  lawsuit.  If  the  defendants  in  the  case 
did  not  want  their  property  sold,  they  should 
have  paid  the  decree,  as  it  was  their  duty 
to  do.  They  having  failed,  it  became  the 
officer's  duty  to  convert  their  property  into 
money,  and  make  the  payment  for  them." 
Citing  Colton  v.  Camp,  1  Wend.  365;  Grif- 
fin V.  Thompson,  2  How.  244 ;  Bank  v. 
Wakeman,  1  Cow.  46,  and  note  a ;  Mum- 

•ford  V.  Armstrong,  4  Cow.  553. 


FOR   A   DEFICIENCY.  [§  1709  h. 

where  a  second  mortgagee  commenced  a  suit  to  foreclose  his  mort- 
gage, and  for  a  deficiency,  and  recovered  judgment,  and  subse- 
quently obtained  an  order  vacating  the  judgment  and  allowing  him 
to  amend  by  bringing  in  an  additional  party,  and  pending  further 
proceedings  a  prior  mortgagee,  by  decree,  sold  the  property  for  a 
sum  only  sufficient  to  pay  the  first  mortgage  and  costs,  the  second 
mortgagee  was  not  allowed  to  have  the  order  setting  aside  his  judg- 
ment vacated,  and  a  judgment  for  a  deficiency  entered  for  the  full 
amount  due  on  his  mortgage.  His  only  remedy  was  by  an  action 
at  law  upon  the  mortgage  bond.^ 

The  foreclosure  decree  fixes  the  amount  of  the  mortgage  debt, 
and  is  a  final  adjudication  of  this ;  and  in  issuing  an  execution  for 
a  deficiency,  no  objections  to  the  amount  of  the  decree  can  be  con- 
sidered except  such  as  go  to  its  discharge  and  have  arisen  since  the 
confirmation  of  the  sale.^ 

A  second  mortgagee,  who  is  a  party  to  a  bill  to  foreclose  a  first 
mortgage,  cannot,  by  filing  a  cross-bill  against  the  mortgagor,  ob- 
tain a  decree  for  deficiency  on  his  own  mortgage.^ 

Persons  who  are  only  liable  for  the  debt  after  the  mortgaged 
property  has  been  applied  to  its  liquidation,  as,  for  instance,  mort- 
gagors who  have  sold  the  land  to  others  who  have  assumed  the 
mortgage  debt,  have  a  right  to  require  the  sale  of  the  whole  equity 
of  redemption  for  that  purpose ;  and  therefore  they  may  require 
the  joining  of  all  persons  who  have  any  interest  in  the  property,  so 
that  all  equities  in  it  may  be  extinguished.  Although  the  owner- 
ship is  in  doubt  or  disputed,  the  court  will  order  the  person  who 
appears  to  have  an  interest  in  the  land  to  be  brought  in.* 

A  partner  may  properly  insist  that  a  mortgage  of  partnership 
property  to  secure  a  partnership  debt  shall  be  foreclosed  before  a 
personal  judgment  is  rendered  against  him  on  the  note.^ 

Upon  the  same  principle  it  has  been  held  that  a  defendant  who 
is  only  secondarily  liable  may  require  the  bringing  in  of  the  prin- 
cipal debtor,  if  within  the  jurisdiction  of  the  court,  for  the  purpose 
of  obtaining  against  him  a  judgment  for  deficiency .'^ 

When  a  judgment  is  rendered  against  several  persons,  some  of 
whom  are  primarily  liable  and  others  only  secondarily,  the  judg- 
ment for  the  deficiency  should  provide  that  it  be  enforced  in  the 
first  place  against  the  principal  debtors,  and  then,  so  far  as  it  re- 

1  Loeb  V.  Willis,  22  Hun,  508  ;  Frank  v.  »  Sebring  v.  Conkling,  32  N.  J.  Eq.  2-4. 
Uavis,  16  N.  Y.  Supp.  369 ;  Sievvart  v.  Ila-  *  Kortright  v.  Smith,  3  Edw.  402. 
mel,  33  Ilun,  44,  disapproved.  ^  Warreu  v.  Hayzlett,  45  Iowa,  234. 

2  Haldane  v.  Sweet,  58  Mieh.  429,  25  N.  «  Bigelow  v.  Bush,  6  Paige,  343. 
W.  Rep.  383 

699 


§  1710.]  JUDGMENT   IN   AN   EQUITABLE   SUIT 

mains  unsatisfied  only,  against  the  sureties  in  the  order  of  their 
liability,  which  should  also  be  fixed. ^  The  decree  for  deficiency 
should  determine  the  order  of  liability  of  several  grantees  who 
have  successively  assumed  the  payment  of  the  mortgage  debt.^ 

The  liability  of  the  payee  of  a  note,  who  indorses  it  and  gives 
a  mortgage  conditioned  for  its  payment  according  to  its  tenor,  is 
regarded  as  primary,  and  not  merely  that  of  an  indorser.^ 

An  infant's  disaffirmance  of  his  bond  and  mortgage  does  not  re- 
lieve a  surety  on  his  bond  from  liability  for  a  deficiency  arising 
upon  a  sale  of  the  mortgaged  property.^ 

If  the  mortgage  covers  land  in  two  States,  a  judgment  for  a  defi- 
ciency may  be  had  upon  a  foreclosure  in  one  State.  Thus,  when  a 
mortgage  on  land  partly  in  New  York  and  partly  in  another  State 
is  foreclosed  in  New  York  as  to  the  land  therein,  and  that  land  sold, 
plaintiff  can  have  judgment  for  deficiency  without  foreclosing  as 
to  the  land  in  the  other  State,  as  the  New  York  courts  cannot  order 
a  sale  of  that  land.^ 

1710.  Third  persons  liable  for  the  mortgage  debt  may  be 
joined  as  defendants.*^  The  practice  codes  of  several  States  pro- 
vide that  the  plaintiff  may  unite  in  the  same  complaint  several 
causes  of  action  belonging  to  one  class  of  actions,  as,  for  instance, 
such  as  arise  out  of  the  same  transaction,  or  transactions  connected 
with  the  same  subject  of  action,  but  with  the  qualification  that 
each  cause  of  action  so  united  must  affect  all  the  parties  to  the 
action.  In  the  States  above  named  an  exception  is  made  in  actions 
for  the  foreclosure  of  mortgages.  It  is  generally  considered  that, 
without  this  exception  and  a  special  provision  for  this  case,  the 
holder  of  a  mortgage  could  not  join  a  third  party  liable  for  the  debt 
with  the  mortgagor  in  an  action  of  foreclosure,  for  the  purpose  of 
obtaining  a  judgment  for  a  deficiency  against  him.  An  action  against 
the  mortgagor  alone  in  which  a  decree  is  sought  for  the  sale  of  the 
property,  and  as  well  a  judgment  against  him  for  a  deficiency,  would 
not  embrace  different  causes  of  action,  but  different  remedies  for  the 

1  Luce  V.  Hinds,  Clarke,  453 ;  Leonard  the  surety  was  required  and  consented  to 
V.  Morris,  9  Paige,  90.  And  see  Jones  v.  become  bound."  Citing  Brandt,  Sur.  §  128  ; 
Steinbergh,  1  Barb.  Ch.  250;  Farnham  v.  St.  Albans  Bank  v.  Dillon,  30  Vt.  122; 
Mallorj,  5  Abb.  N.  S.  Pr.  380.  Weed  Sewing  Mach.  Co.  v.  Maxwell,  63 

2  Youngs  V.  Public  Schools,  31  N.  J.  Eq.  Mo.  48G  ;  Davis  v.  Statts,  43  Ind.  103. 
290.  ^  Clark  v.  Simmons,  8  N.  Y.  Supp.  74. 

3  Robertson  v.  Cauble,  57  Ind.  420 ;  Ze-  ^  gee  statutes  of  the  several  States, 
kind  V.  Newkirk,  12  Ind.  544.  §§  1317-1366.     Also  Palmeter  v.  Carej,  63 

4  Kyger  v.  Sipe  (Va.),  16  S.  E.  Rep.  627.  Wis.  426,  21  N.  W.  Rep.  793,  23  N.  W.  Rep. 
Per  Lewis,  P.  "  In  such  a  case  the  disability  586. 

of  the  principal  mav  be  the  very  reason  why 

600 


FOR   A   DEFICIENCY.  [§  1710. 

same  cause;  but  when  a  third  person  is  joined  for  the  purpose  of 
obtaining  a  judgment  against  him  for  a  deficiency,  it  is  considered, 
in  the  absence  of  such  express  provision,  that  there  is  a  misjoinder 
of  causes  of  action.  This  seems  to  be  the  distinction  established 
by  the  authorities.  Wiien,  therefore,  the  code  of  a  State  does  not 
contain  such  express  provision,  a  judgment  for  a  deficiency  cannot 
be  obtained  against  any  persons  liable  for  the  debt  other  than  the 
mortgagor  himself.^  The  only  remedy  against  a  third  person  liable 
for  the  mortgage  debt  is  by  a  separate  action  after  the  deficiency 
has  been  ascertained.  Objection  to  a  complaint  which  improperly 
joins  these  different  causes  of  action  must  be  taken  by  answer  or 
demurrer,  or  it  will  be  deemed  to  be  waived ;  ^  and  if  there  be  no 
such  objection,  a  judgment  for  the  deficiency  may  be  entered,  though 
not  expressly  authorized  by  any  statute.'^ 

Mere  delay  on  the  part  of  the  mortgagee  to  foreclose,  when  he 
had  not  been  requested  to  do  so,  and  the  interest  has  been  paid, 
does  not  render  him  liable  for  a  loss  occasioned  by  a  fall  in  the 
market  value  of  the  property.*  But  if  the  delay  has  been  great, 
and  in  the  mean  time  interest  and  taxes  have  been  allowed  to  ac- 
cumulate to  a  large  amount,  and  other  persons  personally  bound 
for  the  deficiency  have  become  insolvent  and  the  property  has 
greatly  depreciated,  an  application  for  leave  to  sue  at  law  for  a 
deficiency  after  foreclosure,  which  by  statute  is  addressed  to  the 
discretion  of  the  court,  will  be  denied.^ 

A  personal  judgment  for  a  deficiency  may  be  had  against  one 
who  in  assigning  a  mortgage  has  made  a  guaranty  of  it.^ 

If  judgment  is  prayed  for  against  all  the  makers  of  a  mortgage 
note,  but  judgment  is  entered  by  default  against  only  one  of  them, 
the  note  is  merged  in  the  judgment,  and  the  plaintiff  cannot  bring 
a  subsequent  action  against  the  other  makers.'^ 

Where  land  has  been  conveyed  to  several  persons  as  tenants  in 
common,  though  described  as  constituting  a  certain  firm,  and  they 
have  assumed  the  payment  of  an  existing  mortgage,  a  judgment 

1  Pomeroy's  Remedies,  §  459 ;  Doan  v.  ^  Baird  v.  McConkey,  20  Wis.  297. 

Holly,  26  Mo.   186,25  Mo.  357;    Faesi   v.  ^  Gary  z;.  Wheeler,  14  Wis.  281. 

Goetz,  15  Wis.  231  ;  Gary  v.  Wheeler,  14  *  Merchants'    lus.    Go.    v.   Hinman,    34 

Wis.  281  ;  Jesup  v.   Gity  Bank  of  llacine,  Barb.  410. 

14  Wis.   331  ;  Stilwell  v.  Kellogg,  14  Wis.  ^  Collius's  Petition,  6  Abb.  N.  G.  227. 

461;  Borden  v.  Gilbert,  13  Wis.  670.     See  ^  §  1433.  Officer  v.  Burchell,  12  Jones  & 

McCarthy  v.  Garraghty,   10  Ohio  St.  438.  S.  575,  19  Alb.  L.  J.  57. 

It  has  been  held,  however,  that  a  judgment  ''  Lawrence  v.  Beecher,  116  lud.  312,  19 

may  be  rendered  against  a  third  party  in  the  N.  E.  Rep.  143. 
absence  of  an  exj)ress  prohibition.     Hilton 
V.  Otoe  Go.  Nat.  Bank,  26  Fed.  Rep.  202. 

601 


§  1711.]  JUDGMENT   IN   AN   EQUITABLE   SUIT 

for  a  deficienc}'  cannot  be  rendered  against  the  partnership,  but 
against  the  individuals  constituting  the  partnership. ^ 

In  a  suit  to  foreclose  a  mortgage  given  by  an  unincorporated 
association,  the  individual  members  of  which,  as  well  as  the  asso- 
ciation, are  made  defendants  to  the  suit,  a  deficiency  judgment  may 
be  entered  against  such  individual  members.^ 

1711.  A  court  of  equity  cannot  in  some  States,  independently 
of  any  provisions  of  statute  giving  the  authorit}^,  decree  the  pay- 
ment of  the  balance  that  may  remain  of  the  mortgage  debt  after 
applying  the  proceeds  of  the  property  mortgaged,  unless  the  debt, 
without  the  mortgage,  was  such  that  a  court  of  chancery  would 
have  jurisdiction  of  it  and  could  enforce  it.^  A  foreclosure  in 
equit}^,  though  not  a  proceeding  in  rem,  is  in  the  nature  of  such  a 
proceeding,  and  is  not  intended  ordinarily  to  act  in  personam. 
Without  the  aid  of  statute  or  of  circumstances  giving  equitable 
jurisdiction  over  the  demand,  the  onl}'^  proper  remedy  for  the  defi- 
ciency is  by  action  at  law  upon  the  bond  or  note.*  If,  however,  no 
note,  or  bond,  or  other  legal  obligation  was  given,  or  if  this  has 
been  lost,  the  court  may  enforce  the  demand  as  an  equitable  one 
against  the  mortgagor  by  a  personal  decree  for  the  balance  remain- 
ing unsatisfied.^  When  the  mortgaged  premises  have  been  sold  to 
one  subject  to  the  mortgage,  which  he  agrees  to  pay,  his  obligation 
inures  in  equity  to  the  benefit  of  the  holder  of  the  mortgage,  who 
is  entitled  upon  foreclosure  to  a  decree  against  such  purchaser  for 
any  deficiency  there  may  be  after  applying  to  the  debt  the  proceeds 
of  the  sale.  The  right  to  such  a  decree  is  upon  the  ground  that 
the  claim  is  purely  an  equitable  one.^ 

But  it  is  a  general  rule  that  a  court  of  equity",  having  obtained 

1  La   Societe   Fran^aise    v,   ^yeidmann,  *  In  South  Carolina  a  practice  grew  up 

97  Cal.  507,  32  Pac.  Rep.  583.  in  the  equity  courts  of  rendering  a  decree 

-  Flagg  f.  Investment  Co.  (Cal.),  30  Pac.  for  the  deficiency,  though  this  was  "con- 
Rep.  579  ;  Goodlett  v.  Investment  Co.  94  fessedly  a  departure  from  the  procedure 
Cal.  297,  29  Pac.  Rep.  505.  If  the  decree  of  the  English  Chancery."  Wightman  v. 
and  pleadings  do  not  clearly  show  who  were  Gray,  10  Rich.  Eq.  518. 
the  members  of  the  association  when  such  ^  Crutchfield  v.  Coke,  f.  J.  J.  Marsh.  89  ; 
obligation  was  incurred,  the  court  will  not  Waddell  v.  Hewitt,  2  Ired.  Eq.  252. 
modify  the  decree,  but  remand  the  cause  for  ^  Halsey  v.  Reed,  9  Paige,  446  ;  Ivlap- 
further  proceedings.  worth  v.  Dressier,  13  N.  J.  Eq.  62,  78  Am. 

=*  Fleming  v.  Sitton,  1  Dev.  &  Bat.  Eq.  Dec.   69;  Hoy   v.  Bramhall,  19  N.  J.  Eq. 

621;  Morgan  y.  Wilkins,  6  J.  J.  Marsh.  28  ;  563,  97  Am.  Dec.    687.     By  a  subsequent 

McGee  v.  Davie,  4  J.  J.  Marsh.  70  ;  Dunk-  statute  (Nix.  Dig.  p.  119)  of  1866,  the  power 

ley  V.  Van  Buren,  3  Johns.  Ch.  330  ;  Hunt  of  the  court  in  such  cases  is  recognized  and 

V.  Lewin,  4  Stew.  &  Port.  138  ;  Downing  extended.     See,  also,  Stiger  v.  Mahone,  24 

V.  Palmateer,  1   T.  B.  Mon.  64  ;  Stark  v.  N.  J.  Eq.  426. 
Mercer, 4  Miss.  377  ;  Orchard  v.  Hughes,  1 
Wall.  73. 

602 


FOR   A   DEFICIENCY.  [§  1712. 

jurisdiction  to  foreclose  a  mortgage,  may  proceed  to  give  a  personal 
judgment  on  the  indebtedness  after  the  foreclosure  has  become  im- 
possible, the  property  having  been  exhausted  by  a  prior  mortgage.^ 
It  may  in  such  case  even  establish  legal  rights  and  grant  legal  rem- 
edies. Lord  Keeper  Nottingham  said  :  "  When  this  court  can  de- 
termine the  matter,  it  shall  not  be  the  handmaid  to  other  courts, 
nor  beget  a  suit  to  be  ended  elsewhere."  ^  Though  the  equity  court 
has  acquired  jurisdiction  merely  to  enjoin  a  stay  of  sale  under  a 
trust  deed  until  certain  accounts  have  been  settled,  it  may  then 
proceed  to  give  full  relief,  and  may  render  a  personal  decree  for  a 
balance  due  above  the  amount  received  from  the  sale  of  the  prop- 
erty.^ 

Generally,  as  already  stated,  there  are  statutes  giving  authority 
to  render  judgments  for  the  deficiency  not  only  against  the  mort- 
gagor, but  also  against  any  other  person  who  has  assumed  the  pay- 
ment of  the  debt,  or  who  has  become  a  guarantor  or  surety  of  it,* 
or  has  made  any  collateral  undertaking  for  the  payment  of  it.^ 
Such  a  statute  does  not  authorize  a  decree  against  a  person  who  has 
an  attachment  lien  on  the  mortgaged  premises,  and  who  has  prom- 
ised to  buy  the  mortgage.  The  breach  of  such  promise  only  renders 
the  promisor  liable  for  damages,  and  this  liability  cannot  be  liti- 
gated in  a  suit  to  foreclose  a  mortgage.^ 

Any  defence  which  prevails  against  a  general  decree  of  fore- 
closure will  generally  be  equally  good  against  a  personal  decree  for 
the  debt ;  and  there  may  be  defences  to  the  latter  which  are  not 
good  against  the  former.'' 

1712.  One  who  has  bought  subject  to  the  debt  merely  is  not 
liable  for  it.  A  decree  for  the  deficiency  cannot  be  rendered 
against  a  subsequent  purchaser  or  mortgagee  unless  he  has  as- 
sumed the  payment  of  the  mortgage  debt.^  Whether  a  personal 
responsibility  is  assumed  is  in  all  cases  a  question  of  intention, 
and,  unless  the  parties  have  declared  this  intention  by  w^ords  ap- 
propriate and  sufficient  to  express  it,  there  can  be  no  such  lia- 
bility. If  the  deed  simply  says  the  land  is  subject  to  a  certain 
mortgage,  then  the  cases  all  agree  that  the  purchaser  is  not  per- 

1  Hayden  v.  Snow,  9  Biss.  51 1  ;  Walters  Stienbergh,  1  Barb.  Cb.  250 ;  Sauer  v.  Stein- 
V.  Farmers'  Bank,  76  Va.  12;  Beecher  v.    baner,  14  Wis.  70. 

Lewis,  84  Va.  630,  6  S.  E.  Rep.  367.  5  Curtis  v.  Tyler,  9  Paige,  432. 

2  Parker  v.  Dee,  2  Ch.  Cas.  200.  ^  Winsor  v.  Ludington,  77  Mich.  215,  43 

3  Beecher  v.  Lewis,  84  Va.  630,  6  S.  E.    N.  W.  Rep.  866. 

Rep.  367.  "^  As   where   the    mortgage   is   void    for 

*  Jarman  v.  Wiswall,  24  N.  J.  Eq.  267  ;     usury.     Mann  v.  Cooper,  1  Barb.  Ch.  185. 
Bristol  V.  Morgan,  3  Edw.  Ch.  142  ;  Jones  v.        «  §§  735-738  ;  Mount  v.  Potts,  23  N.  J. 

Eq.  188 ;  Emley  v.  Mount,  32  N.  J.  Eq.  470. 

603 


§  1713.]  JUDGMENT   IN  AN   EQUITABLE   SUIT 

sonally  bound  to  pay  it.^  Tlie  addition  of  the  further  words, 
"  which  has  been  estimated  as  a  part  of  the  consideration  money  of 
this  conveyance,  and  has  been  deducted  thei'efrom,"  does  not  import 
anything  more.^ 

A  decree  which  finds  tlie  sum  due  on  the  mortgage,  and  requires 
a  subsequent  purchaser  to  pay  it  by  a  day  named,  and,  if  he  does 
not,  that  the  mortgaged  premises  be  sold,  is  not  a  personal  decree 
against  the  purchaser,  but  an  alternative  one,  giving  him  the  option 
to  pay  the  money  or  suffer  the  property  to  be  sold.^ 

The  mortgagee's  right  to  proceed  in  equity  against  one  who 
has  assumed  to  pay  his  mortgage  does  not  embrace  a  claim  to 
the  purchase-money  on  a  sale  of  the  mortgaged  premises  by  the 
owner.* 

1713.  If  there  are  words  in  the  deed  importing  that  the 
grantee  is  to  pay  the  mortgage  to  which  the  land  is  subject,  he 
is  deemed  to  have  entered  into  an  express  undertaking  to  do  so 
by  the  mere  acceptance  of  the  deed  without  having  signed  it.  No 
precise  or  formal  words  are  necessary.  If  they  show  an  intention 
that  the  grantee  shall  pay  the  debt,  he  thereby  becomes  personally 
liable  for  it ;  °  and  his  liability  may  be  enforced  in  a  foreclosure 
suit  bj^  a  judgment  for  a  deficiency.^  If  the  agreement  to  pay  the 
debt  is  not  contained  in  the  deed  to  the  purchaser,  it  must  be  evi- 
denced by  some  writing  and  supported  by  a  good  consideration. 
No  judgment  for  a  deficiency  can  be  rendered  against  a  purchaser 
from  the  mortgagor,  where  the  defendant  in  his  answer  and  in  his 
testimony  has  denied  that  he  assumed  the  mortgage  debt,  and  the 
only  evidence  to  the  contrary  is  the  testimony  of  the  mortgagor 
that  in  purchasing  the  land  and  executing  the  mortgage  he  was  act- 
ing as  agent  for  such  purchaser,  and  with  the  purpose  of  conveying 
to  him,  as  he  afterwards  did ;  that  he  had  purchased  other  land  for 
him  in  the  same  way,  and  he  had  always  assumed  the  mortgages 
thereon  ;  and  where  it  does  not  otherwise  appear  that  the  mortga- 
gor acted  in  this  particular  transaction  as  agent  for  such  purchaser." 

1  Hull  V.  Alexander,  26  Iowa,  569.  432  ;  Halsey  v.  Reed,  9  Paige,  446 ;  Marsh 

2  Belmont  v.  Coman,  22  N.  Y.  438,  78  y.  Pike,  10  Paige,  595  ;  Blyer  y.  Monholland, 
Am.  Dec.  213.  2  Sandf.  Ch.  478 ;  Lawrence  v.  Fox,  20  N. 

3  Gochenour  i-.  Mowry,  33  111.  331;  Y.  268 ;  Miller  r.  Thompson,  34  Mich.  10. 
Glover  v.  Benjamin,  73  III.  42.  **  Palmeter  v.  Carey,  63  Wis.  426  ;  Cooper 

i  Emley  r.  Mount,  32  N.  J.  Eq.  470.  v.  Foss,  15  Neb.  515,  19  N.  W.  Rep.  506 ; 

6  §§  741,  748  et  s<'q. ;  Ricard  v.  Sanderson,  Rockwell  v.  Blair  Sav.  Bank,  31  Neb.  128, 

41  N.  Y.  179  ;  Belmont  v.  Coman,  22  N.  Y.  47  N.  W.  Rep.  641. 

438,  78  Am.  Dec.  213  ;  Trotter  v.  Hughes,        ^  Thomson  v.  Bettens,  94  Cal.  82,  29  Pac. 

12  N.  Y.  74,  62  Am.  Dec.  137  ;  Vail  v.  Fos-  Rep.  336. 
ter,  4  N.  Y.  312 ;  Curtis  v.  Tyler,  9  Paige, 

604 


FOR   A   DEFICIENCY.  [§  1714. 

When  such  grantee  is  not  made  a  party  to  the  foreclosure  suit, 
and  a  judgment  for  a  deficiency  is  recovered  against  the  grantor, 
he  is  entitled  to  recover  the  same,  with  costs  of  foreclosure  of  the 
grantee,  in  a  suit  at  law.  A  statute  such  as  exists  in  New  York,^ 
prohibiting  proceedings  at  law  without  leave  of  court  for  the  recov- 
ery of  the  debt  after  a  decree  has  been  entered  in  a  suit  to  foreclose 
the  mortgage,  has  no  application  to  such  a  suit  by  the  grantor.  It 
applies  only  to  a  suit  by  the  holder  of  the  mortgage.^ 

If  the  mortgagee  does  not  ask  for  a  personal  judgment  against 
the  grantee,  it  may  be  inferred  that  he  is  satisfied  with  the  security 
upon  the  property  and  a  judgment  against  the  mortgagor,  and  that 
he  abandons  his  claim  against  the  vendee.^ 

If  a  mortgagee,  upon  assigning  the  mortgage,  has  guaranteed 
the  payment  of  it,  the  amount  of  his  liability,  in  case  he  has  re- 
ceived less  than  the  face  of  the  mortgage,  may  be  limited  to  the 
amount  he  received,  with  interest.* 

If  the  grantee  upon  purchasing  a  part  of  the  mortgaged  prem- 
ises assumes  a  certain  part  of  the  mortgage  debt,  his  liability  is 
limited  to  the  sum  assumed.  If  upon  a  subsequent  foreclosure  of 
the  mortgage  he  purchases  the  same  part  of  the  premises  already 
conveyed  to  him,  the  mortgagee  can  claim  of  him  as  a  deficiency 
only  the  difference  between  the  sum  assumed  by  him,  with  interest 
thereon  from  the  date  at  which  this  part  of  the  mortgage  became 
primarily  his  own  debt,  and  the  like  sum  paid  by  him  at  the  fore- 
closure sale.^ 

1714.  Though  the  conveyance  was  merely  for  security.  — 
It  does  not  matter,  as  regards  the  personal  liability  of  one  who  has 
assumed  to  pay  the  mortgage,  that  he  took  the  deed  of  the  equity 
of  redemption  merely  as  security  for  an  indebtedness  owing  to 
him  by  the  firm  of  which  the  mortgagor  was  a  member ;  ^  though 
under  other  circumstances,  when  the  conveyance  was  intended  to 
operate  merely  as  a  mortgage,  the  reservation  by  the  grantor  of 
the  right  to  pay  the  debt,  and  thereby  discharge  the  obligation 
to  pay  the  prior  mortgage,  has  been  held  to  be  inconsistent  with 

1  2  R.  S.  191,  §  155.  4  Goldsmith  v.   Brown,  35   Barb.     484; 

■^  Campbell  ;;.  Smith,  71  N.  Y.  26,  27  Am.    Eapelye  v.  Anderson,  4  Hill,  472. 
Rep.  5;  Comstock  v.  Drohan,  71  N.  Y.  9,        ^  jvfew  Jersey    Sinking  Fund   Com'rs  v. 
8  Hun,  373.  Peter,  32  N.  J.  Eq.  1 13. 

3  Searing  v.  Benton,  41  Kans.  758,  21  o  Ricard  v.  Sanderson,  41  N.  Y.  179. 
Pac.  Rep.  800.  And  see  Campbell  v.  Smith,  8  Hun,  6,  71 

N.  Y.  26,  27  Am.  Rep.  5. 
605 


§  1715.]  JUDGMENT   IN   AN   EQUITABLE   SUIT 

the  idea  that  the  assumption  was  for  the  benefit  of  the  prior  mort- 
gagee.^ 

1715.  If  there  be  no  bond,  note,  or  other  separate  agreement 
in  writing,  or  covenant  in  the  mortgage  for  the  payment  of  the 
mortgage  debt,^  or  the  mortgage  secures  the  notes  of  third  persons,^ 
there  can  ordinarily  be  no  personal  judgment  for  any  deficiency. 
But  if  the  defendant  appears  in  the  action  and  consents  to  such  a 
judgment,  it  is  valid.^  There  can  be  no  personal  judgment  in  case 
the  mortgagee  has  agreed  with  the  mortgagor  to  give  up  the  notes, 
and  to  look  to  the  property  only  ;  ^  or  has  released  the  mortgagor 
from  all  personal  liability  ;  ^  or  in  case  the  debt  is  barred  by  the 
statute  of  limitations.''  A  decree  for  a  deficiency  cannot  be  entered 
where  there  are  several  mortgagees,  not  jointly  interested  in  the 
mortgage,  but  severally  interested  in  specific  amounts  payable  to 
each.^ 

When,  however,  the  debt  exists  independently  of  the  mortgage, 
though  not  evidenced  b}^  any  writing,  the  deficiency  not  satisfied  by 
a  sale  of  the  land  may  be  recovered  by  action.^ 

The  fact  that  the  mortgagor  has  sold  the  property  to  another,  who 
has  agreed  to  pay  th,e  mortgage,  does  not  prevent  the  entry  of  a 
deficiency  decree  against  the  mortgagor,  unless  the  mortgagee  has 
released  him.^^ 

Where  by  oral  agreement  between  three  persons  to  purchase 
certain  real  estate  on  joint  account  as  a  speculation,  and  to  divide 
the  profits  in  proportion  to  the  amounts  contributed,  the  title  is 
taken  in  the  name  of  one  of  the  purchasers,  who  personally  gives 
his  bond  and  mortgage  to  secure  a  portion  of  the  purchase-money, 
the  mortgagee  cannot  recover  judgment  for  a  deficiency  arising  from 
a  foreclosure  sale  against  the  others  whose  names  did  not  appear 
upon  the  papers. ^^ 

^  §  757.  11  Williams  v.  Gillies,  75  N.  Y.  197,  8  N. 

2  §§  72,  678,  750  ;  Hunt  v.  Lewin,  4  Stew.  Y.  Weekly  Dig.  12,  reversing  13  Hun,  422, 
&  P.  138;  Shelden  v.  Erskine,  78  Mich.  53  How.  Pr.  429  ;  Eeeves  r.  Wilcox,  35  Neb. 
627,  44  N.  W.  Rep.  146.  779,  53  N.  W.  Rep.  978.     The  case  of  Rey- 

3  Metzy.  Todd,  36  Mich.  473.  nolds  v.  Dietz,  34  Neb.  265,  51  N.  W.  Rep. 
*  Fletcher  v.  Holmes,  25  Ind.  458.  747,  does  not  contravene  this  principle.     In 

5  Moore  v.  Reynolds,  1  Cal.  351.  that  case  ten  persons  had  purchased  a  tract 

6  Brown  v.  Wmter,  14  Cal.  31.  of  land  for  $20,000,  and,  as  a  part  of  the 

7  Wiswell  V.  Baxter,  20  Wis.  680 ;  Mich-  consideration,  had  assumed  a  mortgage  on 
igan  Ins.  Co.  v.  Brown,  11  Mich.  265.  the  property,  the  title  being  taken  in  the 

8  Shelden  v.  Erskine,  78  Mich.  627,  44  name  of  a  trustee;  and  it  was  held  that 
N.  W.  Rep.  146.  each  was  liable  for  his  proportionate  share 

9  Savage  v.  Stone,  1  Utah  T.  35.  of  the  mortgage  debt.     The  liability  in  that 

10  Connecticut  Mut.  L.  Ins.  Co.  v.  Tyler,  case  results  from  the  nature  of  the  contract. 
8  Biss.  369. 

606 


FOR   A   DEFICIENCY.  [§  1716. 

In  several  States  it  is  provided  by  statute  that  no  mortgage  shall 
be  construed  as  implying  a  covenant  for  the  payment  of  the  sum 
intended  to  be  secured ;  and  when  there  is  no  express  covenant  for 
such  payment  contained  in  the  mortgage,  and  no  bond  or  other 
separate  instrument  to  secure  the  payment  has  been  given,  the 
remedies  of  the  mortgagee  are  confined  to  the  lands  mentioned  in 
the  mortgage.^ 

If  there  is  an  understanding  that  the  mortgagee  shall  accept  the 
mortgaged  property  in  satisfaction  of  the  debt  in  consideration  of 
services  rendered,  and  to  be  rendered,  by  the  mortgagor,  and  the 
mortgagee  for  two  or  three  years  afterwards  accepts  such  services, 
knowing  that  the  mortgagor  was  giving  them  in  the  belief  that  he 
had  been  released,  the  mortgagee  is  estopped  thereafter  to  assert 
the  contrarj'^,  and  to  claim  a  deficiency  upon  a  sale.^ 

1716.  A  judgment  for  a  deficiency  cannot  be  rendered  against 
a  non-resident  who  has  not  appeared,  nor  been  served  with  process 
within  the  State.  The  court  in  such  case  has  no  jurisdiction  of  the 
person,  and  the  remedy  is  confined  to  a  foreclosure  and  sale  of  the 
land.^  When  so  provided  by  statute,  a  judgment  obtained  against  a 
non-resident  upon  service  by  publication  might  be  enforced  against 
his  property  in  the  State.*  Such  a  judgment  would  generally  im- 
pose upon  him  no  personal  liability. 

One  who  gives  a  mortgage  to  secure  the  payment  of  his  own 
liabilities  is  personally  and  directly  liable  at  law,  and  the  demand 
may  be  enforced  against  him  by  suit  in  any  jurisdiction  where  ser- 
vice can  be  had  ;  but  one  who  has  only  purchased  mortgaged  land 

1  California:  Civ.  Code  1885,  §  2928.  Wisconsin:  1  Annot.  Stats.  1889,  §  2204. 

New  York:  4  R.  S.  1889,  p.  2452,  §  139.  Wyoming:  R.  S.  1887,  §  6. 

This  provision  is  construed  not  to  mean  North  Dakota  and  South  Dakota  :  Comp. 

that,  in  the  absence  of  an  express  covenant  Laws  1887,  §  4651. 

or  separate  obligation  for  the  payment  of  In  Tennessee  a  personal  decree  for  a  de- 

the  debt,  a  personal  action  cannot  be  main-  ficiencj  is  valid  in  such  case.     Taylor  v. 

tained  for  a  mortgage  debt  when  proved  by  Rountree,  15  Lea,  725. 

competent  evidence,  whether  in  writing  or  ^  Keaseby  v.  Wilkinson  (N.  J.  Eq.),  27 

parol ;  but  that  an  action  for  a  debt  secured  Atl.  Rep.  642. 

by  mortgage  cannot  be  sustained  merely  by  ^  Pennoyer  v.  Neff,  95  U.  S.  714  ;  Bel- 
the  production  of  the  mortgage,  when  it  cher  r.  Chambers,  53  Cal.  639 ;  Andersons, 
contains  no  express  covenant  to  pay  the  Goff,  72  Cai.  65,  13  Pac.  Rep.  73;  Blum- 
debt."  Demond  ?;.  Crary,  9  Fed.  Rep.  750.  berg  v.  Birch  (Cal.),  34  Pac.  Rep.  102; 
When  the  covenant  does  not  amount  to  an  Schwinger  v.  Hickok,  53  N.  Y.  280;  Law- 
express  covenant  to  pay,  no  judgment  for  a  rence  v.  Fellows,  Walk.  (Mich.)  468  ;  Bart- 
deSciency  can  be  had.  Mack  f.  Austin,  95  lett  v.  Spicer,  75  N.  Y.  528;  Williams  v. 
N.  Y.  513.  Follett,   17   Colo.    51,   28   Pac.    Rep.   330 

Indiana:  1  R.  S.  1888,  §  1094.  Denny  v.  Ashley,  12  Colo.  165. 

Michigan  :  2  Annot.  Stats.  1882,  §  5656.  *  Martin  v.  Pond,  30  Fed.  Rep.  15. 

Oregon :  2  Annot.  Laws  1892,  §  3008. 

607 


§  1717.]  JUDGMENT   IN  AN   EQUITABLE   SUIT 

subject  to  the  incumbrance  is  not  personally  liable,  though  if  he  has 
promised  to  pay  the  mortgage  he  may  be  made  a  defendant  in  fore- 
closure if  he  can  be  found  in  the  jurisdiction  where  the  land  lies, 
and  a  decree  may  be  rendered  against  him  for  any  deficiency  after 
sale.^ 

1717.  Upon  the  decease  of  the  mortgagor,  though  the  admin- 
istrator or  executor  be  a  party  to  the  bill,  no  binding  judgment  can 
be  entered  against  him  for  any  deficiency  remaining  after  applica- 
tion of  the  proceeds  of  sale.  A  claim  for  the  deficiency  must  be 
presented  under  the  proceedings  for  the  administration  of  the 
estate.^  The  suit  can  be  prosecuted  against  executor  or  adminis- 
trator only  for  the  purpose  of  reaching  the  property  and  subjecting 
it  to  sale,  or  for  determining  the  amount  of  the  deficiency.  A  judg- 
ment for  deficiency  may  be  essential  as  the  basis  of  a  subsequent 
proceeding  to  enforce  payment  from  the  estate.'^  "  If  the  court  can 
render  a  judgment  and  order  execution  against  the  property  of  the 
deceased  in  the  hands  of  the  administrator,  the  mortgagee  first  fore- 
closing would  in  effect  get  priority  of  payment  out  of  the  estate, 
not  only  as  jigainst  general  creditors,  but  as  against  all  mortgagees 
later  in  foreclosing,  though  in  the  same  class  of  creditors."  *  If  no 
judgment  for  a  deficiency  is  taken,  and  no  claim  is  made  upon  the 
estate  of  the  deceased  mortgagor,  the  demand  is  barred  at  the  ex- 
piration of  the  time  allowed  for  enforcing  debts  against  the  estate, 
and  the  administrator  cannot  afterwards  obtain  leave  to  sell  land 
for  the  payment  of  such  debt.^ 

Neither  can  a  mortgagee  in  such  case  have  his  judgment  declared 

1  Booth  V.  Conn.  Mut.  Life  Ins.  Co.  43  either   presently   or   contingenth',   in    this 

Mich.  299,  302,  per  Cooley,  J.:  "In  order  State." 

to  enable  the  mortgagee  to  enforce  any  such        ^  Pechaud  v.  Rinquet,  21  Cal.  76  ;  Cowell 

equity  agaiuf-t  the  purchasers,  it  is  neces-  v.  Buckelew,  14  Cal.  G40;  Fallon  v.  Butler, 

sary  that  the  purchasers  and  the  land  mort-  21  Cal.  24,  81  Am.  Dec.  140;    Leonard  r. 

gaged  be  within  the  same  jurisdiction.     No  Morris,  9  Paige,  90;  Null  v.  Jones,  5  Neb. 

personal  decree  can  be  made  in  one  jurisdic-  57,500;  Mut.  Life  Ins.  Co.  f.  Howell,  32 

tion  against  parties  not  personally  served,  N.  J.  Eq.  146. 

or  not   submitting  voluntarily  by  appear-        3  Lockwood   v.   Fawcett,   17   Hun.    146  ; 

ance.     There  is  therefore  in  this  case,  where  Glacius  v.  Fagel,   88  N.   Y.  434;  Weir  v. 

the  purchasers  of  the  land  reside  in  Michi-  Field,  67  Miss.  292. 

gan  and    the  land  is  in  Illinois,  neither  a        *  Per  Mr.  Justice  Perkins,  in  Newkirk  v. 

direct  liability  of  the  purchasers  to  the  de-  Burson,  21  Ind.   129.     And  see  Rhodes  v. 

fendant,  nor  a  contingent  liability,  except  Evans,  Clarke,  168.    This  is  at  any  rate  the 

such  as  depends  upon  the  voluntary  action  rule   before  the   expiration    of    the  period 

of   the  purchasers   themselves.     Whatever  limited  for  the  settlement  of  the  estates  of 

liability   they   may   incur  at  some   future  deceased  persons.      Hathaway   v.  Lewis,   2 

time,  when  the  incumbrances  are  foreclosed,  Disney,  260. 

by  voluntarily  going  into  the  State  of  Illi-        ^  Roberts  i'.  Flatt,  142  111.  485,  32  N.  E. 

nois  and  submitting  to  the  service  of  pro-  Rep.  184. 
cess  there,   none  exists  against  them  now, 

608 


FOR   A   DEFICIENCY.  [§  1718. 

a  lien  upon  surplus  money  arising  from  the  foreclosure  of  a  mort- 
gjige  upon  other  lands  given  by  the  deceased  mortgagor  to  another 
mortgagor;!  but  where,  as  in  New  York,  resort  may  be  had  to  the 
heirs  and  devisees  after  failure  to  collect  out  of  the  personal  estate, 
and  where,  too,  a  surplus  is  regarded  as  belonging  to  the  heirs  rather 
than  the  executor  or  administrator  of  a  deceased  mortgagor,  an 
action  may  be  maintained  against  the  heirs  or  devisees,  in  which, 
if  they  are  insolvent,  the  court  may  invest  such  surplus  moneys  to 
be  held  by  the  officer  and  applied  in  satisfaction  of  the  juclgment.- 

No  judgment  can  be  had  against  a  purchaser  from  the  mortgagor 
unless  he  has  assumed  the  payment  of  the  debt.-^  Nor  can  such 
judgment  be  had  against  the  heir  or  devisee  of  a  deceased  mort- 
gagor,** without  proof  that  he  has  voluntarily  incurred  a  personal 
responsibility,^ 

1718.  A  personal  judgment  against  the  wife  is  erroneous  when 
the  mortgage  was  executed  by  her  with  the  husband  upon  his  own 
land  to  secure  his  own  debt.  She  is  properly  made  a  party  to  the 
suit  for  the  purpose  of  concluding  her  rights  of  dower,  but  is  not  a 
party  in  any  other  sense.*^  Before  a  judgment  can  be  rendered 
against  her  on  her  bond  or  note  made  jointly  with  her  husband,  it 
must  appear  affirmatively  from  the  allegations  and  evidence  that 
the  debt  was  her  own  proper  debt,  or  related  to  her  separate  estate." 
Neither  can  such  a  judgment  be  entered  against  a  widow  of  the 
mortgagor,  who  with  his  heirs  is  made  a  party  to  the  suit  after  his 
death  ;  s  nor  against  the  heirs.^  But  if  a  married  woman  is  herself 
one  of  the  mortgage  debtors,  and  the  mortgage  was  for  the  benefit 
of  her  separate  estate,  and  she  is  possessed  of  separate  property 
other  than  that  mortgaged,  a  personal  judgment  may  properly  be 

1  riiess  V.  Buckley,  24  Hun,  514,  22  Acklicks,  8  Iiul.  521  ;  Kirk  v.  Fort  Wayne 
Hun,  551.  Gas  Light  Co.  13  Ind.  56;  Patton  v.  Stew- 

2  Fliessu.  Buckley,  24  Hun,  514,  22  Hun,  art,  19  Ind.  233;  Eminett  v.  Yandes,  60 
551.  In  New  York,  under  1 II.  S.  p.  749,  §  4,  Ind.  548  ;  Neitzel  i\  Hunter,  19  Kans.  221  ; 
the  mortgagee  can  maintain  an  action  for  Knox  v.  Moser,  69  Iowa,  341,  28  N.  W. 
the  amount  of  a  deficiency  judgment  direct-  Rep.  629  ;  Adams  v.  Fry,  29  Fla.  318,  10 
ly  against  the  heir,  without  resorting  to  the  So.  Rep.  559. 

mortgagor's   estate,   unless    the    mortgage  '^  §   111 ;    Manhattan    Life.  Ins.  Co.    v. 

debt  is  directed  by  the  ancestor's  will  to  be  Glover,  14  Hun,  153  ;    Mack  v.  Austin,  2'.» 

paid  from  his  estate.     Hauseit  v.  Patterson,  Hun,  jN.  Y.  534 ;  Avery  v.  Vansickle,  35 

11  N.  Y.  Supp.  105.  Ohio  St.  270. 

3  Burkham  v.  Beaver,  17  Ind.  367;  ^  Brown  v.  Orr,  29  Cal.  120;  Pillow  v. 
Carleton  v.  Byington,  24  Iowa,  172.  Sentelle,  49   Ark.  430,  5  S.  W.  Rep.  783; 

*  Leonard  v.  IMorris,  9  Paige,  90.  Randall  v.  Bourquardez,  23  Fla.  264,  2  So. 

5  Reinig  v.  Ilecht,  38  Wis.  212.  Rep.  310,  11  Am.  St.  Rep.  379. 

«  §    111;    O'Brian   v.   Fry,   82  III.  274;  «  Alexander  i;.  Frary,  9  Ind.  481. 
Wright   V.   Langley,  36  111.   381;    Key  v. 

VOL.  ir.                    39  609 


§§  1719,  1719  a.]        JUDGMENT   IN   AN   EQUITABLE   SUIT 

rendered  against  her  for  the  deficiency.^  But  no  obligation  on  her 
part  can  be  implied  from  an  agreement  that  certain  lands  conveyed 
by  her  husband  and  herself  as  security  for  his  debt  shall  be  recon- 
veyed  to  her  alone  on  repayment  of  the  debt,  although  the  agree- 
ment purports  to  make  her  liable  for  the  advances  ;  especially  wliere 
by  statute  no  covenant  for  the  payment  of  the  debt  secured  can  be 
implied  in  a  mortgage.^ 

A  judgment  against  the  husband,  upon  a  joint  note  of  himself 
and  wife,  does  not  merge  the  right  to  charge  the  wife's  separate 
estate  with  the  paj^ment  of  the  note,  in  a  subsequent  action  against 
her,  especially  if  her  obligation  in  such  case  be  regarded,  not  as  a 
legal  one,  but  merely  an  obligation  enforcible  in  equity,^ 

1719.  No  judgment  can  be  rendered  for  such  parts  of  the 
debt  as  are  not  due.  The  court  can  only  direct  at  what  time 
and  upon  what  default  any  subsequent  judgment  and  execution 
may  issue.^  But  if  the  mortgage  provides  that,  upon  default  in 
payment  of  any  instalment  of  the  mortgage  debt  or  of  interest,  the 
whole  debt  shall  immediately  become  due  and  payable,  a  personal 
judgment  may  be  entered  for  the  whole  debt  upon  a  default  in 
payment  of  the  first  instalment  of  principal  or  interest,^ 

There  can  be  no  judgment  for  a  deficiency  when  an  action  upon 
the  debt  is  barred  by  the  statute  of  limitations.^ 

1719  a.  In  ascertaining  the  amount  of  the  deficiency,  unpaid 
taxes  and  assessments  upon  the  property  should  be  deducted 
from  the  proceeds  of  the  sale.  This  is  the  rule  even  when  it  is 
sought  to  collect  the  deficiency  from  the  mortgagor  after  he  has 
conveyed  the  property  subject  to  the  mortgage,  which  the  grantee 
has  assumed  to  pay,  and  such  grantee  has  allowed  the  premises  to 
become  incumbered  by  taxes  and  assessments.'^  It  is  doubtful 
whether,  in  such  case,  a  notice  to  the  mortgagee  and  request,  after 

1  Merchants'  Nat.  Bank  v.  Kaymond,  27  premises  are  indivisible,  that  the  debt  can 

Wis.  567;    Jones  v.  Merritt,  23  Hun,  18-t;  be  collected  before  it  becomes  due."     Skel- 

PajMie  V.  Burnham,  62  N.  Y.  69,  74.  ton  v.  Ward,  51  Ind.  46. 

"•^  Howe  r.  Lemon,  37  Mich.  164.  ^  Darrow  v.  Scullin,   19  Kans.  57.     But 

3  Avery  v.  Vansickle,  35  Ohio  St.  270.  it  is  not  an  error  of  which  the  mortgagor 

*  Danforth   v.   Coleman,   23    Wis.    528;  can    complain    that   judgment  is  rendered 

Skelton  v.  Ward,  51  Ind.  46.     The  case  of  only  upon  the  first  instalment. 

Allen   V.  Parker,  11  Ind.  504,  in  which  it  ^  Hulbert  v.  Clark,  11   N.  Y.  Supp.  417, 

was  said  that  judgment  might  be  rendered  57  Hun,  558 ;  Michigan  Ins.  Co.  v.  Brown, 

for  the  amount  due,  and  to  become  due,  is  11   Mich.  266;     Slingerland   v.  Sherer,  46 

questioned  in  Thompson  v.  Davis,  29  Ind.  Minn.  422,  49  N.  W.  Rep.  237.     See,  how- 

264;  and  the  judgment  spoken  of  was  not  ever,  Biinie  v.  Main,  29  Ark.  591. 

a  personal  judgment,  but  one  authorizing  a  '  Cornell    v.    Woodruff,    7  7   N.  Y.    203. 

sale.     "  It  is  only  so  far  as  the  sale  of  the  And    see  Fleishhauer  v.  Doeliner,  9  Abb. 

mortgaged  premises  is  concerned,  when  the  N.  C.  372. 

610 


FOR   A   DEFICIENCY.  [§  1720. 

tlie  mortgage  has  fallen  due,  to  foreclose  it,  would  avail  to  impose 
upon  him  the  damages  resulthig  to  the  mortgagor  from  the  accu- 
mulation of  taxes  and  other  liens  upon  the  property.  It  seems 
probable  that  the  mortgagor  has  no  remedy  except  to  protect  himself 
by  paying  the  mortgage  debt,  and  becoming  subrogated  to  the  rights 
of  the  mortgagee.^ 

In  rendering  a  judgment  for  a  deficiency,  the  owner  of  the  equity 
of  redemption  cannot  be  charged  with  rents  and  profits  collected 
by  him  previous  to  the  entry  of  the  mortgagee  or  the  appointment 
of  a  receiver,  on  the  ground  that,  having  the  possession  w'ith  the 
rents  and  profits,  he  should  apply  these  to  keeping  down  the  taxes 
and  interest  on  the  mortgage. ^ 

1720.  When  it  becomes  a  lien.  —  The  decree  for  a  deficiency 
of  proceeds  does  not  have  the  force  and  effect  of  a  judgment  at 
law  so  as  to  become  a  lien  until  the  deficiency  is  ascertained.-^  This 
deficiency  can  onl}^  be  ascertained  from  the  sale,  and  the  judgment 
becomes  a  lien  upon  the  other  property  of  the  debtor  only  from  the 
time  it  is  docketed.^ 

By  the  practice  generally  adopted,  no  further  action  by  the  court 
is  necessary  after  the  amount  of  the  deficiency  is  reported,  but  the 
clerk  may  issue  an  execution  for  it  without  further  order.^  In  some 
States  the  mortgagee  may  take  a  decree  fixing  the  amount  due,  and 
directing  a  sale,  and  then,  after  the  sale,  apply  for  a  further  decree 
fixing  the  deficiency  and  granting  an  execution  for  this;  or  he  may 
take  a  judgment  at  once  for  the  whole  amount  due,  from  which  the 
officer  making  the  sale  deducts  the  proceeds  of  it,  and  in  that  way 
ascertains  the  deficiency;^  and  no  further  proceedings  are  necessary 
on  the  part  of  the  court  to  ascertain  the  deficiency.  A  decree  that 
a  certain  sum  is  due  to  plaintiff,  and  that  the  mortgaged  property 
be  sold  and  applied  thereon,  there  being  no  provision  for  docketing 
a  judgment  for  any  deficiency,  is  not  a  personal  judgment  against 
defendant." 

Inasmuch  as  the  personal  decree  and  execution  cannot  precede  a 
sale  of  the  premises,  where  equity  required  that  the  remedy  against 

1  Marshall  ('.  Davies,  78  N.  Y.  414.  Biirdick    v.    Burdick,    20    Wis.   348.      In 

2  Argall  V.  Pitts,  78  N.  Y.  239.  Michigan  the  complainant   may   take   out 
^  Mutual  Life  Ins.   Co.  v.  Southard,  25    execution   for   the  deficiency  at  any  time 

N.  J.   Eq.  337  ;    Mutual    Life   Ins.    Co.   v.  within    ten  .years.      Wallace   v.   Field,   56 

Hopper,  43  N.  J.  Kq.  387,  12  Atl.  Rep.  528.  Mich.  3. 

See  Fletcher  v.  Holmes,  25  Ind.  458.  6  Rowland  v.   Leiby,  14  Cal.  156.     And 

*  Cormerais   v.    Gi-nella,   22    Cal.    116;  see  Crei<,rhtou  v.  Hersiifield, -2  Mont.  386. 

Rollins  V.  Forbes,  10  Cal.    299;    Rowe   v.  7  Tolman  u.  Smith,  85  Cal.  280,  24  Pac. 

Table  Mt.  Water  Co.  10  Cal.  441.  Rep,  743. 

'"  Baird  v.  McConkey,  20  Wis.  297.     See 

611 


§  1721.]      JUDGMENT   IN   AN   EQUITABLE   SUIT   FOR   A   DEFICIENCY. 

the  mortgagor  upon  his  bond  should  be  first  exhausted,  proceedings 
in  the  foreclosure  suit  were  suspended,  to  give  time  for  the  plain- 
tiff's bringing  a  suit  at  law  upon  the  bond.^ 

When  a  mortgage  upon  a  homestead  is  satisfied  by  a  foreclosure 
sale  and  there  is  a  subsequent  redemption  by  the  mortgagor,  the 
homestead  rights  again  attach  upon  the  property,  and  a  judgment 
for  a  deficiency  does  not  create  any  lien  upon  the  property  as  against 
the  homestead  exemption.^ 

1721.  The  personal  remedy  may  be  enforced  without  foreclos- 
ure against  one  who  has  made  himself  personally  liable  for  the  pay- 
ment of  a  mortgage  debt,  and  even  without  joining  the  mortgagor 
as  defendant.^  A  judgment  rendered  in  a  foreclosure  suit  against 
the  mortgagor  is  competent  evidence  of  the  amount  of  the  mort- 
gage debt,  and  of  the  amount  of  the  deficiency  remaining  after  a 
sale  of  the  property,  in  a  separate  suit  by  the  mortgagor  against 
one  who  has  assumed  the  debt,  and  was  not  a  party  to  the  foreclos- 
ure suit.^  But  under  the  codes  of  some  States,  as,  for  instance, 
those  of  New  York  and  Michigan,  when  the  mortgagee  has  volun- 
tarily refrained  from  asking  in  his  foreclosure  suit  for  a  decree  for 
any  deficiency,  or  has  voluntarily  omitted  to  join  one  who  had  be- 
come liable  for  the  debt,  some  satisfactory  reason  should  be  given 
for  permitting  him  to  institute  a  separate  action  at  law  for  its 
recovery.^  Sach  leave  will  not  be  granted  when  it  appears  that 
the  deficiency  has  been  created  in  part  or  wholly  by  interference  of 
the  holder  of  the  mortgage  to  prevent  others  from  bidding  at  the 
foreclosure  sale.^ 

1  Vanderkemp  v.  Shelton,  Clarke,  321.  *  Comstock  v.  Drohan,  8  ITun,  373,  71 

2  Martens   v.  Gilson,  13  Nev.  489  ;  Her-    N.  Y.  9. 

shey   V.   Dennis,  53   Cal.  77  ;    Marlowe    v.  &  Comstock  v.    Drohan,  8  Hun,  373,  71 

Benagh,  60  Ala.  323.  N.  Y.  9  ;  Equitable  Life  Ins.  Co.  ;•.  Stevens, 

3  Burr  V.  Beers,  24  N.  Y.  178,  80  Am.  63  N.  Y.  341  ;  In  re  Collins,  17  Hun,  289; 
Dec.  327  ;  Lawrence  r.  Fox,  20  N.  Y.  268  ;  Lines  v.  Stewart,  36  Mich.  285.  See  § 
Siewert  v.  Hamel,  33  Hun,  44.  1223. 

6  Innes  v.  Stewart,  36  Mich.  285. 

612 


CHAPTER   XXXIX. 

STATUTOEY  PROVISIONS  RELATING  TO  POWER  OP  SALE  MORT- 
GAGES AND  TRUST  DEEDS. 

I.  Introductory,  1722.  III.    Statutory    provisions    in    the    several 

I  States,  1723-1763. 

I.  Introductory. 

1722.  In  England  a  mortgage  is  now  considered  incomplete 
without  a  power  of  sale;  and  in  fact  since  Lord  Cranwortli's  Act,i 
in  1860,  and  tlie  Conveyancing  and  Law  of  Property  Act  of  1881, 
all  mortgages  are  in  effect  made  power  of  sale  mortgages,  for  these 
acts  provide  for  a  statutory  power  of  sale  in  all  mortgages,  if  and 
so  far  as  a  contrarj^  intention  is  not  expressed  by  the  terms  and  pro- 
visions of  the  mortgage  deed. 

The  general  object  of  these  statutes  cannot  be  too  highly  com- 
mended ;  and  it  is  to  be  hoped  that  statutes  in  similar  form,  but 
more  liberally  framed,  may  be  enacted  in  this  country.  A  power 
provided  by  statute,  while  it  would  prevent  the  cumbering  of  the 
records  with  the  elaborate  provisions  in  common  use  for  enforcing 
the  security,  would  make  securities  more  certain,  and  therefore 
more  valuable  to  both  parties  ;  for  the  construction  of  such  a  power 
would  soon  be  settled,  and  settled  for  the  whole  community.  Some 
protection  might  be  afforded  the  mortgagor  at  the  same  time  ;  but 
too  much  legislation  in  this  respect  would  be  much  worse  than  none 
at  all,  for  the  efficacy  and  simplicity  of  this  remedy  might  be  easily 

1  23  &  24  Vict.  ch.  145.     This  act,  it  is  veyancers;  although   the  fact,  that  deeds 

said,  has  been  of  practical  use  only  in  some  are  charged  for  according  to  their  length, 

few  cases,  where  the  mortgage  deed  con-  is  supposed  by  an  English  writer  to  have 

tained   no   power   of    sale ;    for   a  special  had  something  to  do  with  the  failure,  not 

power  of  sale  is  almost  universally  given  by  only  of  this  provision,  but  of  others  made 

the  deed,  even   since  this  act,  for  a  more  with  the  like  intent  to  shorten  papers  used 

expeditious  mode  of   obtaining  the  money  in  conveyancing. 

is   demanded.     So   far  as   the  act   was  in-  In  a  subsequent  statute,  25  &  26  Vict.  ch. 

tended  to  shorten  the  mortgage  deed,  it  has  53,  a  power  of  sale  intended  to  operate  un- 

wholly  failed.      Greenwood's  Prac.  of  Con-  der  the  foregoing  statute  is  given  in  a  form 

veyancing,  55.     It  has  been  suggested  that  of  mortgage  annexed  to  the  act  as  follows  ; 

this  failure  of  the  statute  is  due  in  part  to  "C.  D.  shall  have  power  to  sell  on  default 

the  intense  caution  and  deep-rooted  conser-  of  payment  of  the  principal  or  interest,  or 

vatism  which  is  always  found  among 'con-  any  part  thereof  respectively." 

613 


§§  1723-1724.]  STATUTORY  PROVISIONS  RELATING  TO 

destroj'ed.  Even  now  in  a  few  States  the  exercise  of  the  power  is 
so  restricted  and  hedged  about  with  provisions  in  regard  to  notice, 
the  conduct  of  the  sale,  and  redemption  afterwards,  that  tliis  rem- 
edy is  only  a  little  better,  perhaps,  than  the  cumbersome  and  expen- 
sive process  by  equitable  suit.  The  only  States  in  which  a  statutory 
power  of  sale  has  been  provided  are  Virginia  and  West  Virginia. 
The  statute  is  the  same  in  both  States,  the  latter  State  having 
adopted  the  statute  of  the  former.  This  statute  applies  to  trust 
deeds  only,  as  this  form  of  security  has  in  those  States  wholly  super- 
seded the  use  of  mortgages.  It  provides  in  a  few  simple  terms  for 
the  sale  of  the  property  by  the  trustee  whenever,  after  default,  the 
creditor  may  require  it;  and  for  the  application  of  the  proceeds  to 
the  payment  of  the  debt,  the  compensation  of  the  trustee,  and  the 
rendering  of  the  surplus  to  the  debtor.  In  its  brevity  and  sim- 
plicity this  statute  is  to  be  commended. 

II.  Statutory  Provisions  in  the  several  States. 

1723.  Alabama.  —  The  usual  form  of  mortgage  now  used  in 
Alabama  contains  a  power  of  sale  authorizing  foreclosure  without 
the  intervention  of  a  court,  by  publication  of  a  notice.  Deeds  of 
trust  are  also  in  use.  The  power  to  sell  is  part  of  the  security, 
and  may  be  executed  by  any  person  who,  by  assignment  or  other- 
wise, becomes  entitled  to  the  money  secured.^  Property  sold'  under 
a  power  is  subject  to  redemption  for  two  years,  in  the  same  way  as 
when  sold  under  decree  of  foreclosure  in  chancery .^ 

1723  a.  Arizona  Territory.  —  All  sales  of  property  made  by 
the  mortgagee  or  his  legal  representatives  by  virtue  of  a  power  of 
sale,  or  by  the  trustee  named  in  a  trust  deed  in  pursuance  of  the  pro- 
visions of  such  trust  deed,  are  valid  and  binding  on  the  mortgagors 
and  grantors,  and  all  persons  claiming  under  them,  and  foreclose  all 
right  and  equity  of  redemption  of  the  property  so  sold.'^ 

1724.  Arkansas.  —  Trust  deeds  are  in  use,  and  must  be  ac- 
knowledged and  recorded  the  same  as  mortgages. 

1  Code  1886,  §  1844.  Bass,  82  Ala.  622,  2  So.  Rep.  520  ;  Cooper 
An   administrator  may   sell    under    the  r.  Hornsby,  71  Ala.  62;  Bailey  y.  Timber- 
power,  though  by  its  terms  it  runs  only  to  lake,  74  Ala.  221.     This  statutory  right  of 
the    mortgairee,   "  his  heirs   and   assigns."  redemption   must  be  exercised  within   two 
Lewis  V.  Wells,  50  Ala.  198.  years,  and  there  is  no  exception  in  favor 

2  Code  1886,  §§  2877-2889;  Amended  of  persons  under  the  disability  of  infancy, 
Acts  1889,  p.  764.  A  sale  under  a  power  coverture,  insanity,  etc.  Mewburn  v.  Bass, 
regularly  made  cuts  off  the  right  of  redemp-  82  Ala.  622. 

tion,  and  leaves  the  mortgagor  merely  the  ^  i{.  s.  1887,  §  2.359.  The  power  may  be 
right  to  redeem  within  two  years,  though  no  exercised  on  a  default  in  payment  of  inter- 
convejance  has  been  made.     Mewburn  v.    est.     Hooper  v.  Stump,  14  Pac.  Rep.  799. 

611 


POWER  OF  SALE  MORTGAGES  AND  TRUST  DEEDS.    [§§  1725-1733. 

1725.  California.  —  Neither  power  of  sale  mortgages  nor  trust 
deeds  are  in  very  general  use  in  this  State,  although  it  is  provided 
by  statute  that  a  power  of  sale  may  be  conferred  upon  a  mort- 
gagee or  other  person. ^  A  power  of  sale  contained  in  the  mort- 
gage is  merely  a  cumulative  remedy,  and  does  not  in  any  way  affect 
the  right  to  foreclose  in  chancery .^  The  mortgagee  has  his  election 
to  foreclose  in  that  way,  or  under  the  power  of  sale  vested  in  him 
by  the  mortgage.  The  right  to  sell  rests  upon  the  contract  of  the 
mortgagor,  and  a  sale  fairly  made  passes  a  good  title  to  the  pui*- 
chaser.  It  is  provided  that  the  power  to  sell  is  to  be  deemed  a  part 
of  the  security,  and  that  it  shall  vest  in  and  may  be  executed  by 
any  person  who,  by  assignment  or  otherwise,  becomes  entitled  to 
the  money  so  secured  to  be  paid  whenever  the  assignment  is  duly 
acknowledged  and  recorded.^ 

1726.  Colorado.*  —  Power  of  sale  mortgages  and  trust  deeds  are 
both  in  use. 

1727.  Connecticut.  —  Power  of  sale  mortgages  and  trust  deeds 
are  not  in  general  use. 

1729.  Delaware.  —  Power  of  sale  mortgages  and  trust  deeds  are 
not  in  general  use, 

1730.  District  of  Columbia.  —  Deeds  of  trust  with  power  of 
sale  are  in  use  to  the  exclusion,  almost,  of  mortgages. 

1731.  Florida.  —  Neither  of  these  instruments  seems  to  be  in 
general  use. 

1732.  Georgia.  —  Mortgages  with  powers  of  sale  are  valid.^ 

1733.  Illinois.  —  Prior  to  the  act  upon  this  subject  passed  in 
1879,  it  was  usual  for  mortgages  to  contain  a  power  of  sale;  and 
trust  deeds  were  generally  preferred  to  mortgages.  No  sale  could 
be  made  by  virtue  of  a  power  in  a  mortgage  or  trust  deed  after  the 
death  of  the  owner  of  the  equity  of  redemption;^  but  foreclosure 

1  Civil  Code,  §  2932.     A  trust  deed  is  not  the  usual  statutory  decree  giving  a  right  of 

a  mortgai;e  requiring  a  judicial  foreclosure,  redemption,  though  if  sale  had  been  made 

Grant  v.  Burr,  54  Cal.  298;  More  v.  Calk-  under  the  power  tiiere  would  have  been  no 

ins,  95  Cal.  435,  30  Pac.  Kep.  583.  redemption.     Denver  B.  &  M.   Co.  v.  Mc- 

-  Fogarty  v.  Sawyer,  17  Cal.  589  ;  Cor-  Allister,  6  Colo.  261. 
merais  v.  Genella,  22  Cal.  116.     Whether  a        6  Calloway  v.  People's  Bank  of  Bellefon- 

right  of  redemption  exists  after  such  sale  taine,  54  Ga.  441  ;  Robenson  v.  Vason,  37 

was  a  question   raised  but  not  decided  in  Ga.  66 ;  McGuire  v.  Barker,  61  Ga.  339. 
the  case  of  Cormerais  v.  Genella,  22  Cal.        e  j^   g   jggg^  ^.\^   95^  13      p^,.  ^qii^q  of 

116.  sale  under  power,  see  li.  S.  1889,  §§  ch.  95 

^'  Civil  Code,  §858;  1  Codes  and  Stats.  14,  15.    This  provision  iiad  no  application 

18"2>  §§  •'J858,  5859.  to  trust  deeds    executed  before  enactment. 

*  When  a  trust  deed  is  foreclosed  by  ac-  Fislier  v.  Green,  142  111.  80,  31  N.  !<:.  Hep. 

tion  and  sale  under  a  decree,  this  must  be  173. 

615 


§§  1734-1737.]      STATUTORY  PROVISIONS   RELATING   TO 

might  be  made  in  the  same  manner  as  of  mortgages  not  containing 
a  power  of  sale.  But  in  the  year  above  named  it  was  enacted  that 
no  real  estate  within  this  State  shall  be  sold  by  virtue  of  any  power 
of  sale  contained  in  any  mortgage,  trust  deed,  or  other  conveyance 
in  the  nature  of  a  mortgage,  executed  after  the  taking  effect  of  this 
act ;  but  all  such  mortgages,  trust  deeds,  or  other  conveyances  in 
the  nature  of  a  mortgage,  shall  only  be  foreclosed  in  the  manner 
provided  for  foreclosing  mortgages  containing  no  power  of  sale; 
and  no  real  estate  shall  be  sold  to  satisfy  any  such  mortgage,  trust 
deed,  or  other  conveyance  in  the  nature  of  a  mortgage,  except  in 
pursuance  of  a  judgment  or  decree  of  a  court  of  competent  juris- 
diction.^ 

The  statutes  allowing  redemption  upon  sale  of  mortgaged  prem- 
ises have  no  application  to  a  sale  under  a  trust  deed  or  power  in  a 
mortgage.^ 

1734.  Indiana.  —  Power  of  sale  mortgages  are  not  in  use. 
They  are  not  invalid  by  reason  of  the  power,  though  they  must 
be  foreclosed  in  equity."  By  authority  given  the  mortgagee  inde- 
pendent of  the  mortgage,  he  may  act  as  the  agent  of  the  mortgagor 
in  the  sale  of  the  premises.^  Trust  deeds  are  sometimes  used, 
and  sales  by  trustees  under  powers  in  such  deeds  are  authorized 
by  statute.^ 

1735.  Iowa.  —  Deeds  of  trust  and  mortgages  with  powers  of 
sale  made  since  April  1,  1861,  can  be  foreclosed  only  by  action  in 
court  by  equitable  proceedings.  Deeds  of  trust  may  be  executed  as 
securities,  but  are  foreclosed  like  mortgages.*^ 

1736.  Kansas.  —  As  mortgages  can  be  foreclosed  by  suit  only, 
powers  of  sale  are  of  no  practical  advantage.'''  It  is  provided,  how- 
ever, that  where  a  power  to  sell  lands  or  other  property  shall  be 
given  to  the  grantee,  in  any  mortgage  or  other  conveyance  intended 
to  secure  the  payment  of  money,  the  power  shall  be  deemed  a 
part  of  the  security,  and  shall  vest  in  any  person  who  shall  become 
entitled  to  the  money  so  secured  to  be  paid.^ 

1737.  Kentucky.  —  Power  of    sale  mortgages  and  trust  deeds 

1  Laws  1879,  p.  211,  §  1 ;  R.  S.  ch.  95,  §  ^  i  r.  g.  1376,  p.  915  ;  Act  of  June  17, 
22.  1852. 

2  Bloom  V.  Rensselaer,  15  111.  503  ;  Fitch  6  Annot.  Code  1888,  §  4555.  They  were 
V.  Wetherbee,  110  111.  475.  in  use  before  that  date.     Pope  v.  Durant, 

3  R.  S.  1888,  §  1088;  Rowe  v.  Beckett,  26   Iowa,  233;    Crocker  v.    Robertson,   8 
30  Ind.  154,  95  Am.  Dec.  676;  Martin  v.  Iowa,  404;  Fanning  v.  Kerr,  7  Iowa,  450. 
Reed,  30  lud.  218.  ^  Samuel  v.  Holladay,  1  Woolw.  400. 

4  Farley  v.  Eller,  29  Ind.  322.  »  Q.  S.  1889,  §§  5631,  7176. 

616 


POWER  OF  SALE  MORTGAGES  AND  TRUST  DEEDS.      [§§  1738-1740. 


must  be  enforced  by  a  court  of  equity ;   but  in  making  sales  the 
terms  of  tlie  power  are  followed.^     Strict  foreclosure  is  forbidden.^ 

1738.  Louisiana.  —  Mortgages  and  deeds  of  trust  with  powers 
are  not  in  use. 

1739.  Maine.  —  Power  of  sale  mortgages  are  sometimes  used, 
though  trust  deeds  are  not. 

1740.  Maryland.3  —  Power  maybe  given  to  the  mortgagee,  or 
any  other  person  named  in  the  deed,*  to  sell  the  mortgaged  prem- 
ises, upon  the  terms  and  contingencies  expressed  in  the  mort- 
gage ;  and  when  the  interests  in  any  mortgage  are  held  under  one 
or  more  assignments,  or  otherwise,  the  power  of  sale  therein  con- 
tained shall  be  held  divisible,  and  he  or  they  holding  any  such 
interest  who  shall  first  institute  proceedings  to  execute  such  power 
shall  thereby  acquire  the  exclusive  right  to  sell  the  mortgaged 
premises.  Before  making  sale,  however,  the  person  authorized 
to  sell  must  give  bond  to  the  State,  in  such  penalty  and  security 
as  shall  be  approved  by  the  judge  or  clerk  of  a  court  of  equity  of 
the  city  or  county  in  which  the  premises  lie,  to  abide  by  and  fulfil 
an}'-  order  or  decree  which  shall  be  made  in  relation  to  the  sale, 
or  the  proceeds  of  it ;  which  bond  is  for  the  security  of  all  per- 
sons interested  in  the  property  or  the  proceeds  of  it.^     Such  notice 


1  Campbell  f.  Johnston,  4  Dana,  178. 

2  Civil  Code  1889,  §  375. 

3  Pub.  G.  L.  1888,  art.  66,  §§  6-22. 
These  proceedings  are  under  the  general 

common  law  and  chancery  powers  of  the 
court,  and  are  simply  a  summary  mode  of 
exercising  an  ordinary  jurisdiction.  In- 
stead of  a  bill  in  equity  for  foreclosure,  the 
agreement  of  the  parties,  as  expressed  in 
the  power  contained  in  the  mortgage,  is 
substituted  for  a  decree  of  sale ;  and  upon 
final  ratification  by  the  court  of  the  report, 
the  sale  has  all  the  judicial  sanction  that  it 
could  have  on  formal  proceedings  in  equity. 
Having  jurisdiction  independent  of  the 
statute,  the  court  may  decide  upon  every 
question  which  occurs  in  the  cause,  and  its 
judgment  is  biudiug  uutil  reversed.  A  sale' 
ratified  by  the  court  cannot  be  called  in 
question  in  a  collateral  proceeding.  Cockey 
V.  Cole,  28  Md.  276,  285,  92  Am.  Dec.  684. 
In  the  cit}'  of  Baltimore,  under  a  public  lo- 
cal law,  a  decree  for  sale  may  be  in  the 
first  place  obtained  from  the  court  of  equi- 
ty ;  and  the  sale  is  made  by  a  trustee  ap- 
pointed by  the  court,  after  giving  bond  and 
advertising.      He  reports  the  sale   to  the 


court,  and  if  everything  is  properly  done 
an  order  is  passed  ratifying  and  confirming 
the  sale.  Code,  vol.  2,  p.  307.  The  valid- 
ity of  such  sale  may  be  inquired  into  at  any 
time  before  the  final  order  of  confirmation 
is  passed.  Black  v.  Carroll,  24  Md.  251. 
In  regard  to  foreclosure  sales  under  powers 
of  sale  in  the  city  of  Baltimore,  see  1  Pub- 
lic Local  Laws,  1888,  p.  504. 

*  Under  this  and  subsequent  provisions 
a  corporation  cannot  exercise  a  power  of 
sale ;  especially  as  the  depositary  of  the 
power  must  act  under  the  responsibility  of 
an  oath.  Therefore  a  power  to  a  corpora- 
tion or  its  attorney,  without  naming  him,  is 
void.  Queen  City  Building  Asso.  v.  Price, 
53  Md.  397. 

The  person  who  is  to  exercise  the  power 
must  be  named  therein.  The  mortgagee 
cannot  delegate  the  power.  •  Frostburg 
Mut.  Build.  Asso.  v.  Lowdermilk,  50  Md. 
175.  See  Lamm  v.  Port  Deposit  Home- 
stead Asso.  49  Md.  233,  33  Am.  Rep.  246. 

^  A  bond  filed  on  the  day  of  sale  is  pre- 
sumed to  have  been  filed  before  the  sale. 
Hubbard  v.  Jarrell,  23  Md.  66. 

617 


§  1740.]  STATUTORY   PROVISIONS  RELATING   TO 

of  the  sale  shall  be  given  as  is  provided  for  in  the  mortgage ;  or,  if 
there  be  no  agreement  as  to  notice,  then  the  party  offering  the 
property  for  sale  shall  give  twenty  days'  notice  of  the  time,  place, 
and  terms,  by  advertisement  in  some  newspaper  printed  in  the 
county  where  the  premises  lie  ;  or,  if  there  be  no  such  newspaper, 
then  in  a  newspaper  having  a  large  circulation  in  the  county, 
and  also  by  advertisement  set  up  at  the  court-house  door  of  said 
county.^ 

All  such  sales  must  be  reported  under  oath  to  the  court,  and 
there  must  be  the  same  proceedings  on  such  report  as  if  the  same 
were  made  by  a  trustee  under  a  decree  of  court,  and  the  sale  may 
be  confirmed  or  set  aside.^  If  set  aside  a  resale  may  be  ordered, 
and  if  justice  requires  it  the  court  may  appoint  a  trustee  to  sell 
the  same.3  The  sale,  when  confirmed  b}^  the  court  and  the  pur- 
chase-money is  paid,  passes  all  the  title  which  the  mortgagor  had 
at  the  time  of  the  recording  of  the  mortgage.*  Any  person  hav- 
ing an  interest  in  the  equity  of  redemption  may  apply  to  the 
court  confirming  the  sale  to  have  the  surplus  of  the  proceeds  of 
sale,  after  payment  of  the  mortgage  debt  and  expenses,  paid  over 
to  such  person,  or  so  much  as  will  satisfy  his  claim,  and  the  court 
distributes  the  surplus  equitably  among  the  claimants.  After  the 
sale  has  been  confirmed,  the  person  making  the  sale  conveys  to 
the  purchaser,^  or,  if  the  vendor  and  purchaser  be  the  same  per- 
son, the  court,  in  its  order  confirming  the  sale,  appoints  a  trustee 
to  convey  the  property  to  the    purchaser  on  the  payment  of  the 

1  As  to  publication  of  notice  where  after  under  a  power  in  a  mortgage,  as  if  such 
the  making  of  a  mortgage  the  mortgaged  sales  had  been  made  under  a  decree  of  the 
land  was  legally  annexed  to  the  city  of  court.  Parties  in  interest  may  of  course 
Baltimore,  see  Chilton  i'.  Brooks,  71  Md.  come  in,  and  object  to  the  ratification  of 
445,  18  Atl.  Rep.  868.  the  sale,  but  such  objections  must  be  as  to 

2  The  proper  time  to  take  advantage  of  the  mode  and  manner  of  the  sale,  and  not 
any  failure  to  comply  with  the  law  is  when  to  the  proceedings  under  which  the  property 
the  sale  is  reported.  Gayle  v.  Fattle,  14  was  sold.  A  party  has  no  right  to  except 
Md.  69.  When  the  sale  is  confirmed,  it  to  the  ratification  of  sale  on  the  ground 
has  all  the  judicial  sanction  that  it  could  that  the  mortgage  or  debt  upon  which  the 
have  if  it  had. been  made  by  virtue  of  an  or-  decree  was  passed  was  fraudulent."  Pa- 
dinary  decree,  and  cannot  be  called  in  ques-  tapsco  Guano  Co.  v.  Elder,  53  Md.  463, 
tion  in  any  collateral  proceeding.     Cockey  465. 

V.  Cole,  28  Md.  276,  285,  92  Am,  Dec.  684;  5  When  the  decree  provides  for  a  credit 

Morrill  v.  Otlston,  34  Md.  413.  as  to  part  of  the  purchase-money,  and  the 

3  No  order  for  a  resale  should  be  made  sale  is  made  on  credit  and  confirmed,  but 
without  notice  to  the  first  purchaser,  the  purchaser  waives  the  credit  and  pays 
Schaefer  v.  O'Brien,  49  Md.  253.  the  whole  purchase-money  at  once,  no  ob- 

*  "  The  object   of  this  provision  of  the  jection  can  be  made  that  the  deed  is  exe- 

Code  was  to  confer  upon  courts  the  same  cuted  forthwith,  before  the  expiration  of 

jurisdiction,  and   to    direct  that   the  same  the  term  of  credit.     Morrill  v.  Gelston,  .34 

proceedings  should  be  had,  in  sales  made  Md.  413. 

618 


POWER  OF  SALE  MORTGAGES  AND  TRUST  DEEDS.  [§  1741. 

purchase-money.  Tlie  mortgagee,  or  his  assignee  or  legal  repre- 
sentatives, ma}'^  purchase  at  the  sale.  All  sales  must  be  in  the 
county  or  city  where  the  premises  are  situated,  and  if  in  more 
than  one  county  the  sale  may  be  made  in  either.^  The  purchaser 
on  the  confirmation  of  the  sale  may  have  a  writ  of  possession 
against  the  mortgagor.  On  the  death  of  the  mortgagee  his  in- 
terest vests  in  his  executor  or  administrator,  who  may  release  in 
the  same  manner  as  the  mortgagee  could. 

If,  upon  a  sale  of  the  wliole  mortgaged  propert}'^  by  yirtue  of  a 
power  of  sale,  the  net  proceeds  shall  not  sujQBce  to  pay  the  mortgage 
debt  and  accrued  interest,  the  court  may,  upon  motion  after  due 
notice,  enter  a  decree  in  personam  against  the  mortgagor  or  other 
party  liable  to  the  debt,  for  the  amount  of  such  deficiency,  provided 
the  mortgagee  would  be  entitled  to  maintain  an  action  at  law  upon 
the  covenants  contained  in  the  mortgage  for  the  residue  of  said 
debt.  Such  decree  shall  have  the  same  effect  as  a  judgment  at 
law. 2 

1741.  Massachusetts. — Mortgages  with  powers  of  sale  are  al- 
most exclusively  used  in  this  State.  AVhen  a  power  of  sale  is  con- 
tained in  a  mortgage  and  a  conditional  judgment  has  been  entered, 
the  demandant  may,  instead  of  a  writ  of  possession,  have  a  decree 
entered  that  the  property  be  sold  pui'suant  to  such  power  of  sale."* 
The  party  selling  must  within  ten  days  thereafter  make  a  report 
under  oath  to  the  court,  and  the  sale  may  be  confirmed.  But  in- 
stead of  such  suit  and  decree  the  mortgagee  or  his  assignee  may 
give  notice,  and  sell  in  accordance  with  the  power;*  and  within 
thirty  days  after  selling  he  must  file  a  copy  of  the  notice,  and  his 
affidavit  setting  forth  his  acts  in  the  premises  fully  and  particularly, 
in  the  office  of  the  registry  of  deeds  in  the  county  or  disti'ict  where 
the  property  is  situated.^  If  it  appears  by  such  affidavit  that  he 
has  in  all  respects  complied  with  the  requisitions  of  the  power,  the 
affidavit,  or  a  certified  copy  of  the  record  of  it,  is  admitted  as  evi- 
dence that  the  power  of  sale  was  duly  executed.*^ 

1  The  parties  cannot  by  agreement  sell  ch.  140,  §§  38-44.     And  see  St.   1868,  ch. 

outside  tlie  county  in  wliich  the  premises  197.     Trust  deeds  are  very  seldom  used, 

are  situate.     Webb  v.  Haeffer,  53  Md.  187,  *  This  is  the  usual  mode  of  proceeding; 

See  Chilton  V.  Brooks,  71   Md.  445,  18  Atl.  a  suit  and  decree   being   very   rare   when 

Kep.  868  ;  §  1849  »■  there  is  a  valid  power  of  sale. 

The  proliibition  does  not  apply  to  deeds  ^  The  affidavit  need  not  allege  the  ren- 

of  trust,  but  only  to  technical   mortgages,  dering  of  an  account,  nor  the  disposition 

Harrison  v.  Annapolis  &  Elk  Ridge  R.  R.  made  of   the   purchase-money.      Ciiilds  v. 

Co.  50  Md.  400.  Dolan,  5  Allen,  319. 

'^  Laws  1892,  ch.  111.  ''  This  provision  respecting  the  record  of 

»  P.  S.  1882,  ch.  181,  §§  14-18;    G.  S.  an  affidavit  of  the  sale  is  held  to  be  merely 

619 


§  1742.]  STATUTORY   PROVISIONS   RELATING   TO 

All  statutes  authorizing  administrators,  guardians,  and  trustees 
to  mortgage  real  estate  are  construed  as  authorizing  the  giving  of 
a  mortgage  containing  a  power  of  sale.^ 

No  sale  under  a  power  is  valid  and  effectual  to  foreclose  the  mort- 
gage unless  previous  notice  of  the  sale  shall  have  been  published 
once  a  week,  the  first  publication  to  be  not  less  than  twenty-one 
days  before  the  day  of  sale,  for  three  successive  weeks,  in  some 
newspaper,  if  there  be  any,  published  in  the'  city  or  town  where  the 
mortgaged  premises  are  situated,  and,  if  no  newspaper  is  published 
in  such  city  or  town,  then  in  some  newspaper  published  in  the 
county  where  the  mortgaged  premises  are  situated  ;  but  this  require- 
ment does  not  avoid  the  necessity  of  also  giving  notice  of  such  sale 
in  accordance  with  the  terms  of  the  mortgage.^ 

When  a  mortgage  is  foreclosed  by  a  sale  under  a  power  or  other- 
wise, and  the  person  having  a  valid  title  to  the  estate  is  kept  out  of 
possession  by  any  person  without  right,  he  may  recover  possession 
by  the  summary  process  provided  for  the  recovery  of  lands  unlaw- 
fully held  by  tenants.^ 

In  a  case  in  Massachusetts,  decided  in  1858,  it  was  held  that  an 
agreement  to  give  a  mortgage  does  not  require  the  giving  of  a  mort- 
gage with  a  power  of  sale,  because  such  power  was  declared  not  to 
be  an  ordinary  accompaniment  of  a  mortgage.^  But  since  the  time 
of  this  decision  this  form  of  mortgage  has  come  to  be  used  almost 
to  the  complete  exclusion  of  any  other,  and  it  seems  doubtful  at 
least  whether  this  decision  would  hold  good  at  the  present  time. 
There  is  no  reason  now,  it  would  seem,  why  a  power  of  sale  should 
not  be  regarded  here,  as  in  England,  a  necessary  incident  to  a  mort- 
gage ;  and  that  an  agreement  to  give  a  mortgage,  or  a  power  by 
will  or  otherwise  to  raise  money  by  a  mortgage,  implies  the  giving 
of  a  mortgage  with  a  power  of  sale. 

1742.  Michigan.^  —  A  mortgage  containing  a  power  of  sale  upon 

directory,  and  a  sale  is  good,  and  the  title  This  statute  is  ancillary  to  and  a  part  of 

valid,  if  no   affidavit  is  ever  made  or   re-  the  process  of  foreclosure,  and  the  use  of 

corded.     Learned  u.  Foster,  117  Mass.  365  ;  the  process  must  be  limited  to  the  mort- 

Burns  v.  Thayer,  115  Mass.  89;  Field  v.  gagee  and  to  the  purchaser  at  the  foreclos- 

Gooding,  106  Mass.  310.  ure  sale. 

1  Stat.  1873,  ch.  280;  P.  S.  1882,  ch.  *  Brayton  v.  N.  E.  Coal  Mining  Co.  11 
142,  §  6.  Gray,  493.     And  see  Piatt  v.  McClure,  3 

2  Acts  1877,  ch.  215;  P.  S.  1882,  ch.  181,  Woodb.  &  M.  151. 

§  17;  Acts  1882,  ch.  75.  5  Annotated    Stats.   1882,  §§  8497-8515. 

3  Acts  1879,  ch.  237  ;  P.  S.  1882,  ch.  175,  Trust  deeds  in  the  nature  of  mortgages 
§§  1-10.    But  a  grantee  of  the  purchaser    seem  not  to  be  in'use. 

cannot  recover  possession  of  the  land  by  The  statutory  foreclosure  is  not  adapted 
this  process.  Warren  v.  James,  130  Mass.  to  cases  where  there  are  conflicting  equities 
540.  which  can  only  be  worked   out   and  pro- 

620 


POWER  OF  SALE  MORTGAGES  AND  TRUST  DEEDS.    [§  1742. 


default  may  be  foreclosed  by  advertisement.^  To  entitle  the  party 
to  give  notice  and  to  make  such  foreclosure,  it  is  requisite :  1st. 
That  some  default  shall  have  occurred;  2d.  That  no  suit  shall  have 
been  instituted  at  law  to  recover  the  debt  or  any  part  of  it,  or,  if  in- 
stituted, that  it  has  been  discontinued,  or  that  execution  has  been 
returned  unsatisfied  in  whole  or  in  part ;  ^  and  3d.  That  the  mort- 
gage has  been  duly  recorded,  as  well  as  any  assignment  of  it ;  ^  4th. 
If  given  to  secure  the  payment  of  money  by  instalments,  each  in- 
stalment after  the  first  is  deemed  a  separate  and  independent  mort- 
gage, and  maybe  foreclosed  for  each  instalment  in  the  same  manner, 
and  with  like  effect,  as  if  given  for  each  separate  instalment.^ 

Notice  is  given   by  publishing   the   same  for  twelve  successive 


tected  in  a  court  of  chancery.  Olcott  v. 
Crittenden,  68  Mich.  230,  36  N.  W.  Kep. 
41. 

A  sale  under  a  power  which  does  not 
purport  to  be  made  under  the  statute  is 
imperfect,  and  does  not  cut  off  the  equity 
of  redemption,  nor  give  a  right  of  entry. 
Pierce  v.  Grimley,  77  Mich.  273,  43  N.  W. 
Rep.  932. 

A  statutory  foreclosure  is  not  proper  in 
case  the  mortgage  has  already  been  the 
subject  of  litigation,  and  the  mortgagee  has 
been  enjoined  from  foreclosing  until  he  has 
complied  with  certain  directions  of  the  de- 
cree. Strong  V.  Tomlinson,  88  Mich.  112, 
50  N.  W.  Rep.  106, 

Equity  will  not  permit  one  tenant  in  com- 
mon in  the  possession  of  property,  for  the 
use  of  whicli  he  is  bound  to  account  to  his 
co-owner,  to  foreclose  by  separate  adver- 
tisements three  mortgages  which  he  holds 
upon  his  co-tenant's  interest,  all  of  which 
are  past  due.  The  foreclosure  must  be  in 
equity,  where  all  the  rights  of  the  parties 
can  be  determined  and  protected.  Dohm 
V.  Haskin,  88  Mich.  144,  50  N.  W.  Rep. 
108. 

1  Poreclosure  by  advertisement  is  not  a 
judicial  proceeding,  but  an  act  of  the  mort- 
gagee, and  cannot  take  place  unless  the 
mortgage  contains  a  power  of  sale.  Hebert 
V.  Bulte,  42  Mich.  489,  4  N.  W.  Rep.  215. 

2  This  refers  to  suits  on  the  debt,  and 
not  to  previous  foreclosure  proceedings. 
Lee  V.  Clary,  38  Mich.  223.  Proving  the 
mortgage  debt  before  commissioners  of  the 
estate  of  a  deceased  mortgagor  is  not  a 
proceeding  at  law  within  this  j)rohibition. 
Larzelerc  v.  Starkweatlier,  38  Mich.  96. 


3  An  assignment  of  a  mortgage  executed 
in  another  State,  and  acknowledged  before 
a  notary  public  witliout  a  certificate  of  his 
authority,  is  not  entitled  to  record,  and 
does  not  support  a  foreclosure  sale  under 
the  statute.  Dohm  v.  Haskin,  88  Mich. 
144,  50  N.  W.  Rep.  108. 

*  Formerly  a  foreclosure  under  a  power 
of  sale  for  one  instalment  forever  discharged 
the  land  of  the  mortgage.  Kimmell  v.  Wil- 
lard,  1  Doug.  217.  Now  under  the  statute 
one  instalment,  by  reason  of  falling  due 
sooner,  has  no  preference  over  the  others. 
All  the  instalments  stand  upon  the  same 
basis,  in  like  manner  as  several  mortgages 
given  at  the  same  time,  and  it  makes  no 
difference  whether  they  are  all  owned  to- 
gether or  by  different  parties.  If  the  sale 
be  expressly  made  subject  to  the  other  in- 
stalments, the  effect  is  to  charge  the  land  in 
the  hands  of  the  purchaser  with  tlie  pay- 
ment of  these ;  but  if  not  so  made,  though 
the  sale  may  bar  the  equity  of  redemption 
of  the  mortgagor  and  subsequent  purchas- 
ers, it  only  transfers  to  the  purchaser  one 
instalment  of  the  mortgage  and  leaves  the 
others  unaffected.  Tliere  is  no  redemption 
by  one  as  against  the  other.  McCurdy  v. 
Clark,  27  Mich.  445  ;  Bridgman  v.  Johnson, 
44  Mich.  491,  7  N.  W.  Rep.  83. 

The  statute  includes  instalments  of  in- 
terest as  well  as  principal,  and  where  there 
has  been  a  statutory  foreclosure  and  sale 
for  instalments  of  interest,  and  a  redemp- 
tion by  the  grantee  of  the  mortgagors,  the 
mortgage  is  not  extinguished.  Edgar  v.  Ed- 
gar (Mich.),  56  N.  W.  Rep.  15,  distinguish- 
ing Miles  V.  Skinner,  42  Mich.  181,  3  N.  W. 
Rep.  918.     In  the  former  case  it  was  said  : 

621 


§  1742.]  STATUTORY   PROVISIONS  RELATING   TO 

weeks, ^  at  least  once  in  each  week,  in  a  newspaper  printed  in  the 
county  where  the  premises,  or  some  part  of  them,  are  situated,  if 
there  be  one  ;  and,  if  no  newspaper  be  printed  in  such  county,  then 
such  notice  shall  be  published  in  a  paper  printed  nearest  thereto. 
The  notice  must  specify :  1st.  The  names  of  the  mortgagor  and  of 
the  mortgagee,  and  assignee,  if  any  ;  2d.  The  date  of  the  mortgage, 
and  when  recorded  ;  3d.  The  amount  claimed  to  be  due  at  the  date 
of  the  notice;  and  4th.  A  description  of  the  mortgaged  premises, 
conforming  substantially  with  that  contained  in  the  mortgage. 

The  sale  must  be  at  public  vendue,  between  the  hour  of  nine 
o'clock  in  the  forenoon  and  the  setting  of  the  sun,  at  the  place  of 
holding  the  circuit  court  within  the  county  in  which  the  premises 
to  be  sold,  or  some  part  of  them,  are  situated,  and  must  be  made 
by  the  person  appointed  for  that  j^i^irpose  in  the  mortgage,  or  by 
the  sheriff,  under-sheriff,  or  a  deputy  sheriff  of  the  county,  to  the 
highest  bidder.  The  sale  may  be  postponed  from  time  to  time,  by 
inserting  a  notice  of  such  postponement  as  soon  as  practicable  in 
the  newspaper  in  which  tlie  original  advertisement  was  published, 
and  continuing  such  publication  until  the  time  to  which  the  sale  is 
postponed,  at  the  expense  of  the  party  requesting  such  postpone- 
ment.^ If  the  premises  consist  of  different  farms,  tracts,  or  lots, 
not  occupied  as  one  parcel,  they  must  be  sold  separately,  and  no 
more  can  be  sold  than  may  be  necessary  to  satisfy  the  amount  due 
on  the  mortgage  at  the  date  of  the  notice  of  sale,  with  interest,  and 
the  costs  and  expenses  allowed  by  law.^  But  if  distinct  lots  be 
occupied  as  one  parcel,  the}'  may  in  such  case  be  sold  together.^ 
The  mortgagee,  his  assigns,  or  his  or  their  legal  representatives,  may 
fairly  and  in  good  faith  purchase  the  premises  so  advertised,  or  any 
part  thereof,  at  such  sale.  The  officer  or  person  making  the  sale 
must  forthwith  execute  and  deliver  to  the  purchaser  a  deed  of  the 
premises,  specifying  the  precise  amount  for  which  such  parcel  was 

"  It  certainly  was  not  the  intention  of  tlie  ^  Only  twelve  weeks'  interval  can  be  re- 

legislatiire  that,  in  a  proceeding  to  foreclose  quired  between  the  publication  of  the  notice 

one  of  tlie  several  instalments  of  principal,  and  the  sale  itself.     In  computing  the  time, 

past-due  interest  upon  other  instalments  of  the  day  of  the  first  publication  should  be 

principal  not  yet  due  should  be  excluded,  excluded   and   the    day   of   sale    included. 

The  language  referred  to  as  used  in  Miles  v.  Gantz  v.  Toles,  40  Mich.  725. 

Skinner  was  not  necessary  to  the  decision  ^  ^  deputy  sheriff  may  make  the  sale. 

of  that  case,  and   therefore  must  be  disre-  Heinmiller  v.  Hatheway,  60  Mich.  391,  27 

garded."    If   the  foreclosure  sale  be  made  N.  W.  Rep.  558. 

for  an  instalment  of  interest  or  of  principal,  ^  'pijg  deed  in  such  case  must  show  the 

the  sale  should  be  made  expressly  subject  to  price  of  each  parcel,  and  not  one  sum  for  all. 

the  principal  debt  or  other  instalments  of  Lee  v.  Mason,  10  Mich.  403. 

the  principal.     Miles  v.  Skinner,  42  Mich.  *  See  Grover  v.  Fox,  36  Mich.  461. 

181,  3  N.  W.  Rep.  918. 

622 


POWER  OF  SALE  MORTGAGES  AND  TRUST  DEEDS.  [§  1742. 

sold,  and  must  indorse  thereon  the  time  when  such  deed  will  become 
operative  in  case  the  premises  are  not  redeemed  according  to  law, 
and  must  deposit  the  same  with  the  register  of  deeds  of  the  county 
in  which  the  land  is  situated,  as  soon  as  practicable  and  within 
twenty  days  after  such  sale.^ 

Unless  the  premises  are  redeemed  within  the  time  limited  for 
such  redemption,  as  hereinafter  provided,  such  deed  thereupon  be- 
comes operative  and  may  be  recorded,  together  with  any  memo- 
randum of  cancelment  of  a  portion  of  the  same  which  may  have 
been  entered  thereon  by  the  register,  and  vests  in  the  grantee  all 
the  right,  title,  and  interest  which  the  mortgagor  had  at  the  time 
of  the  execution  of  the  mortgage,  or  any  time  thereafter,  except  as 
to  any  parcels  redeemed  ;  but  prior  liens  are  not  in  any  way  preju- 
diced or  affected.  The  premises  may  be  redeemed  within  one  year 
from  the  time  of  the  sale,  by  paying  to  the  purchaser  or  his  assigns, 
or  to  the  register  of  deeds  for  the  benefit  of  such  purchaser,  the  sum 
which  was  bid,  with  interest  from  the  time  of  the  sale,  at  the  rate  per 
cent,  borne  by  the  mortgage,  not  exceeding  ten  per  cent,  per  annum, 
whereupon  the  deed  becomes  void  ;  but  in  case  anj'^  distinct  lot  or 
parcel  separately  sold  is  redeemed,  leaving  a  portion  of  the  premises 
unredeemed,  then  the  deed  is  inoperative  merely  as  to  the  parcel  or 
parcels  so  redeemed,  and  as  to  those  not  redeemed  is  valid.  Upon 
the  payment  of  the  entire  sum  bid  at  the  sale  and  interest  to  the 
register  of  deeds,  or  upon  delivering  to  such  register  a  certificate 
signed  and  acknowledged  by  the  person  entitled  to  receive  the  same, 
setting  forth  that  such  sum  and  interest  have  been  paid,  the  register 
thereupon  destroys  the  deed,  and  enters  in  the  margin  of  the  record 
of  such  mortgage  a  memorandum  that  the  mortgage  is  satisfied;  or, 
in  case  one  or  more  parcels  are  redeemed,  it  is  the  duty  of  the  reg- 
ister to  enter  upon  the  face  of  the  deed  a  memorandum  that  the 
same  is  inoperative  as  to  the  parcels  redeemed,  and  to  enter  in  the 
margin  of  the  record  of  the  mortgage  a  memorandum  that  the  same 
is  satisfied  as  to  the  parcels  redeemed.  Any  surplus  must  be  paid 
to  the  mortgagor,  his  jDersonal  representatives  or  assigns,  unless  a 
claim  for  it  shall  have  been  filed  with  the  officer,  whereupon  the 
officer  is  required  to  pay  the  surplus  to  the  register  of  the  circuit 
court  in  chancery  for  the  county,  and  the  claim  is  thereupon  heard 
and  adjudged  in  that  court.^ 

^  See  Grovcr  u.  Fox,  3G  Mich.  4G1.  2  ^^  attorney's  fee  is  provided  for  by 

Wlien  the  deed  is  filed  imniediiitely  after  statute.     Laws  1885,  p.  133,  3  Auiiot.  Stats. 

sale,  the  year  for  redemption  runs  from  the  Supp.  1890,  §  8515  a. 

date  of  filing.     Lilly  v.  GibLs,  39  Mich.  394. 

623 


§  1743.]  STATUTORY   PROVISIONS   RELATING   TO 

Any  party  desiring  to  perpetuate  the  evidence  of  any  sale  may 
procure  :  1st.  An  affidavit  of  the  publication  of  the  notice,  to  be 
made  by  the  printer  of  the  newspaper  in  which  it  was  inserted,  or  by 
some  one  in  his  employ;  2d.  An  affidavit  of  the  fact  of  sale  by  the 
auctioneer,  stating  the  time  and  place  of  it,  the  sum  bid,  and  the 
name  of  the  purchaser.  Such  affidavits  must  be  recorded ;  and 
the  original  affidavits  or  the  records  of  them,  and  certified  copies, 
are  presumptive  evidence  of  the  facts  therein  contained. ^ 

When  any  person  continues  in  possession  of  any  premises  after 
the  expiration  of  the  time  limited  by  law  for  redemption,  summary 
proceedings  may  be  had  to  recover  possession. 

1743.  Minnesota.^  —  Every  mortgage  of  real  estate  containing  a 
power  of  sale,  upon  default  being  made,  may  be  foreclosed  by  ad- 
vertisement within  fifteen  years  after  the  maturity  of  sucli  mort- 
gage or  the  debt  secured.^  To  entitle  any  party  to  make  such  fore- 
closure it  is  requisite:  That  some  default  in  a  condition  of  such 
mortgage  has  occurred,  by  which  the  power  to  sell  has  become 
operative ;  that  no  action  or  proceeding  has  been  instituted  at  law 
to  recover  the  debt  then  remaining  secured  by  such  mortgage  or 
any  part  thereof,  or,  if  the  action  or  proceeding  has  been  instituted, 
that  the  same  has  been  discontinued,  or  that  an  execution  upon  the 
judgment  rendered  therein  has  been  returned  unsatisfied  in  whole 
or  in  part ;  that  the  mortgage  containing  such  power  of  sale  has 
been  duly  recorded,*  and,  if  it  has  been  assigned,  that  all  the  as- 
signments have  been  recorded.^ 

Notice  that  such  mortgage  will  be  foreclosed  by  sale  of  the  mort- 

1  An  affidavit  made  seven  or  eight  years  ercising  the  power  which  conflicts  with  the 
after  the  sale  is  not  such  presumptive  evi-  terms  of  the  mortgage,  or  impairs  its  obli- 
dence.  Mundy  v.  Monroe,  1  Mich.  68.  gation  as  a  contract,  a  sale  under  the  power 
Proof  of  sale  is  allowed  to  be  recorded,  but  made  in  1879,  in  accordance  with  this  stat- 
not  required  to  be.  Lee  v.  Clary,  38  Mich,  ute,  was  valid.  AVebb  v.  Lewis,  45  Minn. 
223.  285,  47  N.  W.  Rep.  803.  | 

2  G.  S.  1891,  §§  5344-5379.  When  land  3  See  Cobb  v.  Bord,  40  Minn.  479,  42  N. 
is  in  two  counties,  see  Balme  v.  Wambaugh,  W.  Rep.  396. 

16  Minn.  116.     The  statute  1877,  chap.  121,  *  Where  the  land  is  situated  in  two  coun- 

abolishing  foreclosure  under  power  of  sale  ties,  but  in  recording  it  in  one  county  the 

mortgages,  is  not  applicable  to  mortgages  description  of  the  land  situated  in  the  other 

made  before  its  passage.     O'Brien  v.  Krenz,  county  is  omitted,  such  record  is  not  suf- 

36  Minn.  136,  30  N.  W.  Rep.  458.     A  power  ficient  to  authorize  a  sale,   in  the  county 

of  sale  mortgage  made  before  this  statute  where  such  imperfect  record  was  made,  of 

is  in  itself  a  complete  and  valid  common-law  the  land  situated  in   the  other  county,  al- 

power,  capable  of  being  executed  without  though  the  mortgage  was  duly  recorded  in 

the  aid  of  any  statute.    "  Powers   of  sale  such  other  county.     Van  Meter  v.  Knight, 

are  not  the  creatures  of  statute,  but  of  the  32  Minn.  205,  20  N.  W.  Rep.  142. 

convention   of  the  parties."     There  being  ^  Lowry  v.  Mayo,  41  Minn.   388,  43  N. 

nothing  in  the  statute  as  to  the  mode  of  ex-  W.  Rep.  78. 

624 


POWER   OF   SALE   MORTGAGES   AND   TRUST    DEEDS.        [§  1743. 

gaged  premises,  or  some  part  of  them,  is  given  by  publishing  the 
same  for  six  successive  weeks,  at  least  once  in  a  week,  in  a  news- 
paper printed  and  published  in  the  county  where  the  premises  in- 
tended to  be  sold,  or  some  part  thereof,  are  situated,  if  there  is 
one  ;  ^  if  not,  then  in  a  newspaper  printed  and  published  in  an  ad- 
joining county,  if  there  is  such  a  newspaper ;  if  there  is  not,  then 
in  a  newspaper  printed  and  published  in  the  county  to  which  the 
county  in  which  the  premises  are  located  is  attached  for  judicial 
purposes,  if  there  be  such  a  newspaper ;  if  there  is  not,  then  in  a 
newspaper  printed  and  published  at  the  capital  of  the  State.  In 
all  cases  a  copy  of  such  notice  must  be  served,  in  like  manner  as  a 
summons  in  civil  actions  in  the  district  court,  at  least  four  weeks 
before  the  time  of  sale,  on  the  person  in  possession  of  the  mort- 
gaged premises,  if  the  same  are  actually  occupied.^  Proof  of  such 
service  may  be  made,  certified,  and  recorded  in  the  same  manner  as 
proof  of  publication  of  a  notice  of  sale  under  a  mortgage.  Every 
notice  must  specify :  the  names  of  the  mortgagor  and  of  the  mort- 
gagee, and  the  assignee,  if  any  ;  the  date  of  the  mortgage,  and 
when  and  where  recorded  ;  ^  the  amount  claimed  to  be  due  thereon, 
and  taxes,  if  any,  paid  by  the  mortgagee  at  the  date  of  the  notice  ; 
a  description  of  the  mortgaged  premises,  conforming  substantially 
to  that  contained  in  the  mortgage  ;  the  time  and  place  of  sale. 

The  sale  is  at  public  vendue,  between  the  hour  of  nine  o'clock  in 
the  forenoon  and  the  setting  of  the  sun,  in  the  county  in  which  the 
premises  to  be  sold,  or  some  part  thereof,  are  situated,  and  is  made 
by  the  sheriff  of  said  county,  or  his  deputy,  to  the  highest  bidder. 
Such  sale  may  be  postponed  from  time  to  time,  by  inserting  a  no- 
tice of  such  postponement,  as  soon  as  practicable,  in  the  newspaper 
in  which  the  original  advertisement  was  published,  and  continu- 
ing such  publication  until  the  time  to  which  the  sale  is  postponed, 
at  the  expense  of  the  party  requesting  such  postponement.  If  the 
mortgaged  premises  consist  of  separate  and  distinct  farms  or  tracts, 
they  must  be  sold  separately,  and  no  more  farms  or  tracts  shall  be 

1  G.  S.  1891,  §§  5362-5363 ;  Laws  1883,  sons  by  whom  it  may  be  made.  The  mort- 
ch.  112,  provide  that  when  a  foreclosure  is  gagee  himself  may  serve  the  notice.  Kirk- 
invalid  by  reason  that  the  notice  was  not  patrick  v.  Lewis,  46  Minn.  164,  47  N.  W. 
published  for  the  requisite  length  of  time.  Rep.  970. 

suit  to  set  aside  the  sale  must  be  brought  Where    there    is    no   actual   occupancy, 

within  five  years  from  the  date  of  the  sale,  within  the  meaning  of  the  law,  but  mere 

Mogan  V.  Carter  (Minn.),  55  N.  W.  Rep.  acts  of   ownership,  the  statutory  notice  is 

1117;  Russell  v.  Lumber  Co.  45  Minn.  376,  not   required.     Moulton   v.    Sidle,  52  Fed. 

48  N.  W.  Rep.  3,  followed.  Rep.  616. 

-  This  has  reference  merely  to  the  mode  ^  Martin   v.  Baldwin,  30  Minn.  537,  16 

of  making  the  service,  and  not  to  the  per-  N.  W.  Rep.  449. 

VOL.  II.             40  625 


§  1743.]  STATUTORY   PROVISIONS   RELATING    TO 

sold  than  are  necessary  to  satisfy  the  amount  due  on  such  mort- 
gage at  the  date  of  notice  of  such  sale,  with  interest,  taxes  paid, 
and  costs  of  sale.  The  mortgagee,  his  assignee,  or  his  or  their  legal 
representatives,  may  fairly  and  in  good  faith  purchase  the  premises 
so  advertised,  or  any  part  thereof,  at  snch  sale.^ 

The  officer  is  required  to  make  and  deliver  to  the  purchaser  a 
certificate,  under  his  hand  and  seal,  containing  a  description  of  the 
mortgage  under  which  such  sale  is  made ;  a  description  of  the 
real  property  sold  ;  the  price  paid  for  eacli  parcel  sold  separately  ; 
the  date  of  the  sale  and  the  name  of  the  purchaser  ;  and  the  time 
allowed  by  law  for  redemption.^  Said  certificate  must  be  executed, 
proved,  or  acknowledged,  and  recorded  as  required  by  law  for  a  con- 
veyance of  real  estate,  within  twenty  days  after  such  sale.  Such 
certificate,  so  proved,  acknowledged,  and  recorded,  upon  the  expi- 
ration of  the  time  for  redemption,  operates  as  a  conveyance  to  the 
purchaser  or  his  assignee  of  all  the  right,  title,  and  interest  of  the 
mortgagor  in  and  to  the  premises  named  therein  at  the  date  of  such 
mortgage,  without  any  other  conveyance  whatever.^ 

When  a  mortgage  is  given  to  secure  the  payment  of  money  by 
instalments,  each  of  the  instalments,  either  of  principal  or  interest, 
mentioned  in  such  mortgage,  may  be  taken  and  deemed  to  be  a 
separate  and  independent  mortgage ;  may  be  foreclosed  in  the  same 
manner,  and  with  like  effect,  as  if  such  separate  mortgage  was 
given  for  each  of  such  subsequent  instalments;  and  a  redemption 
of  any  such  sale  by  the  mortgagor  has  the  like  effect  as  if  the  sale 
for  such  instalment  had  been  made  upon  an  independent  mortgage. 
In  such  case,  if  the  mortgaged  premises  consist  of  separate  and 
distinct  farms  or  tracts,  only  such  tract  or  tracts  are  sold  as  are 
sufficient  to  satisfy  the  instalment  then  due,  with  interest  and  costs 

1  There  are  provisions  as  to  the  surplus  such  sale,  his  heirs  or  assigns,  after  the 
money,  foreclosure  in  firm  name,  and  the  time  for  redemption  therefrom  has  expired; 
validity  and  effect  of  the  sale.  2  G.  S.  and  no  such  sale  shall  be  held  invalid  by 
1891,  §§  5353-5357.  reason  of  any  defect  unless  the  action  in 

2  As  to  what  is  sufficient  in  regard  to  which  the  validity  of  such  sale  shall  be 
stating  the  time  of  redemption,  see  Wells  v.  called  in  question  be  commenced,  or  the  de- 
Atkinson,  24  Minn.  161.  As  to  description  fence  alleging  its  invalidity  be  interposed, 
of  the  mortgage,  see  Cables.  Minneapolis  within  five  years  after  the  date  of  such  sale. 
Packing  Co.  47  Minn.  417,  50  N.  W.  Rep.  2  G.  S.  1891,  §§  5262-5364.  See  Smith  v. 
528;  Lee  v.  Fletcher,  46  Minn.  49,  48  N.  Buse,  35  Minn.  234;  Burke  v.  Lacock,  41 
W,  Rep.  456.  Minn.  250,  42  N.  W.  Rep.  1016. 

3  The  sheriflTs  certificate  of  any  sale  is  As  to  perpetuating  the  evidence  of  notice 
prima  facie  evidence  that  all  the  require-  and  sale,  see  G.  S.  1891,  §§  5365-5370.  As 
mentsof  law  in  that  behalf  liave  been  duly  to  foreclosure  by  foreign  executor  or  ad- 
complied  with,  and  ;)mna  facie  evidence  of  ministrator,  see  §§  5373-5375. 

title  in  fee  thereunder  in  the  purchaser  at 

626 


POWER   OF   SALE  MORTGAGES   AND   TRUST   DEEDS.         [§  1743 

of  sale ;  ^  but  if  said  premises  do  not  consist  of  such  separate  and 
distinct  farms  or  tracts,  the  whole  is  sold  ;  and  in  either  case  the 
proceeds  of  such  sale,  after  satisfying  the  interest  or  instalment  of 
the  principal  due,  with  interest  and  costs  of  sale,  must  be  applied 
towards  the  payment  of  the  residue  of  the  sum  secured  by  said 
mortgage,  and  not  due  and  payable  at  the  time  of  such  sale  ;  and 
if  such  residue  does  not  bear  interest,  such  application  is  made  with 
a  rebate  of  the  legal  interest  for  the  time  during  which  the  residue 
shall  not  be  due  and  payable ;  and  the  surplus,  if  any,  is  paid  to 
the  mortgagor,  his  legal  representatives  or  assigns. 

The  mortgagor,  his  heirs,  executors,  administrators,  or  assigns, 
whose  real  property  is  sold,  may,  within  twelve  months  after  such 
sale,  redeem  such  property,  as  hereinafter  provided,  by  paying  the 
sum  of  money  for  which  the  same  was  sold,  together  with  interest 
on  the  same  from  the  time  of  such  sale.^  No  redemption  can  be 
made  for  real  propert}^  sold  when  the  mortgage  foreclosed  contains 
a  distinct  rate  of  interest,  more  than  seven  per  cent,  per  annum, 
unless  the  party  entitled  to  redeem  shall  pay,  within  the  time  pro- 
vided, the  sum  for  which  said  property  was  sold,  together  with 
interest  thereon  from  date  of  sale  to  the  time  of  redemption,  at 
the  rate  specified  in  the  mortgiige,  not  to  exceed  ten  per  cent,  per 
annum.  When  no  late  of  interest  is  specified  in  the  mortgage,  the 
rate  of  interest  after  sale  is  seven  per  cent,  per  annum  on  the 
amount  for  which  the  property  was  sold.'^ 

Redemption  is  made  as  follows :  The  person  desiring  to  redeem 
is  required  to  pay  to  the  person  holding  the  right  acquired  under 
such  sale,  or  for  him  to  the  sheriff  who  made  the  sale,  or  his  suc- 
cessor in  office,  the  amount  required  by  law  for  such  redemption, 

1  If  the  mortgage  is  in  effect  a  separate  A  junior  mortgagee  is  not  an  "assign" 

mortgage  upon  several  separate    tracts  to  who  is  entitled  to  redeem  within  the  year, 

secure  distinct  sums,   though  consolidated  Cuilerier  v.   Brunelle,  37  Minn.   71,  33  N. 

in  one  writing,  a  sale  of  all  the   tracts  to-  W.  Rep.  123. 

gether  for  a  gross  sum  is  irregular.     Hull  ^  The  foreclosure  sale  attaches  this  con- 

r.  King,  38  Minn.  349,  37  N.  W.  Rep.  792.  dition  to  his  title,  —  that  it  will  pass  at  the 

All  the  lots  may  be  advertised  by  one  no-  end  of  a  year  from  the  sale,  unless  he,  his 

tice,  but  this  must  state  the  amount  due  on  heirs,  executors,  administrators,  or  assigns 

each  lot.     Mason  v.  Goodnow,  41  Minn.  9,  redeem.     Buchanan  v.  Reid,  43  Minn.  172, 

42  N.  W.  Rep.  482.  45  N.  W.  Rep.  11.     Redemption  after  sale 

'^  If  the  mortgage  be  foreclosed  for  more  can  be  exercised  only  as  prescribed  by  stat- 

than  is  actually  due,  the  court  may,  upon  a  ute.    Dickerson  y.  Hayes,  20  l\Iinn.  100.    A 

proper  showing,  allow  the  mortgagor  to  re-  purchaser  of  a  part  may  redeem  the  whole 

deem  on  j)aying  what  was  justly  due;  but  when  the  entire  tract  has  been  sold  to;;ether. 

he  must  show  an  excuse  for  not  applying  O'Brien  i>.  Krenz,  36  Minn.    13G,  30  N.  W. 

to  the  court  before  foreclosure  to  i)revent  a  Rep.  458. 
sale  for  more  than  was  due.     Dickerson  v. 
Haves,  20  Minn.  100. 

627 


§  1743.]  STATUTORY   PROVISIONS   RELATING    TO 

and  to  produce  to  such  person  or  officer  a  certified  copy  of  the 
docket  of  the  judgment,  or  the  deed  of  conveyance  or  mortgage,  or 
of  the  record  or  files,  evidencing  any  other  lien  under  which  he 
claims  a  right  to  redeem,  certified  by  the  officer  in  whose  custody 
such  docket,  record,  or  files  shall  be ;  any  assignment  necessary  to 
establish  his  claim,  verified  by  the  affidavit  of  himself  or  the  sub- 
scribing witness  thereto,  or  of  some  person  acquainted  with  the 
signature  of  the  assignor  ;  and  an  affidavit  of  him.self  or  his  agent, 
showing  the  amount  then  actually  due  on  his  lien.^  The  person  or 
officer  from  whom  such  redemption  is  made  is  required  to  make  and 
deliver  to  the  person  redeeming  a  certificate  under  his  hand  and 
seal,  containing :  the  name  of  the  person  redeeming,  and  the 
amount  paid  by  him  on  such  redemption;  a  description  of  the  sale 
for  which  such  redemption  is  made,  and  of  the  property  redeemed, 
and  stating  upon  what  claim  such  redemption  is  made ;  and,  if  upon 
a  lien,  the  amount  claimed  to  be  due  thereon  at  the  date  of  re- 
demption. Such  certificates  must  be  executed  and  proved,  or  ac- 
knowledged and  recorded,  as  provided  by  law  for  conveyances  of  real 
estate;  and,  if  not  so  recorded  within  ten  days  after  such  redemp- 
tion, such  redemption  and  certificate  are  void  as  against  any  person 
in  good  faith  making  redemption  from  the  same  person  or  lien.  If 
such  redemption  is  made  by  the  owner  of  the  property  sold,  his  heirs 
or  assigns,  such  redemption  annuls  the  sale ;  if  by  a  creditor  holding 
a  lien  upon  the  property  or  any  part  thereof,  said  certificate,  so 
executed  and  proved,  or  acknowledged  and  recorded,  operates  as 
an  assignment  to  him  of  the  right  acquired  under  such  sale,  sub- 
ject to  such  right  of  any  other  person  to  redeem  as  is  or  may  be 
provided  by  law.  If  no  such  redemption  is  made,  the  senior  cred- 
itor having  a  lien,^  legal  or  equitable,  on  the  real  estate,  or  some 
part  thereof,  subsequent  to  the  mortgage,  may  redeem  within  five 
days  after  the  expiration  of  the  said  twelve  months;  and  each  sub- 
sequent creditor  having  such  lien,  within   five  days  after  the  time 

allowed  all  prior  lien-holders  as  aforesaid,  ma}'  redeem  by  paying 

t 

1  Within  twenty-four  hours  after  such  re-  herewith  to    forthwith  deposit  such  docu- 

demptiou  is  made,  the  party  redeeming  shall  ments  in  the  nearest  post-office,  addressed 

cause  the  documents,  so  required  to  be  pro-  to  such  register  of  deeds,  with  tlie  postage 

duced,  to  be  filed  in  the  office  of  the  register  thereon  prepaid.    Supp.  to  Stats.  1888,  ch. 

of  deeds  of  the  county  in  which  the  mort-  81,  §  14. 

gaged  lands  are  situated,  and  the  register  ^  The  purchaser  at  the  foreclosure  of  a 

of  deeds  shall  indorse  thereon  the  date  and  junior  mortgage  may,  within  the  year  from 

hour  of  receiving  the  same  :  provided  that  the  foreclosure  sale,  redeem  from  the  fore- 

in  case  such  redemption  shall  be  made  at  closure  of  a  prior  mortgage  as  "a  creditor 

any  place  other  than   the    county  seat,  it  having  a  lien."  Buchanan  r.  Reid,  43  Minn, 

shall  be   deemed   a    sufficient    compliance  172, 45  N.  W.  Rep.  11. 

628 


POWER   OF   SALE   MORTGAGES   AND   TRUST   DEEDS.      [§§  1744,  1745. 

the  amount  aforesaid,  and  all  liens  prior  to  his  own  held  by  the 
party  from-  whom  redemption  is  made.^  But  no  creditor  is  entitled 
to  redeem  unless,  within  the  year  allowed  for  redemption,  he  files 
notice  of  his  intention  to  redeem  in  the  office  of  the  register  of 
deeds  where  the  mortgage  is  recorded.^ 

1744.  Mississippi.  —  Power  of  sale  mortgages  and  trust  deeds 
are  in  use.  At  first  it  was  thought  that  the  power  could  not  be 
exercised  without  the  aid  of  a  court  of  chancery  ;  ^  but  this  aid  was 
very  soon  dispensed  with,  and  sales  under  the  power  held  effectual 
to  bar  the  equity  of  redemption.^ 

If  a  deed  of  trust,  or  mortgage  with  a  power  of  sale,  be  silent  as 
to  the  place  and  terms  of  sale  and  mode  of  advertising,  a  sale  may 
be  made  after  condition  broken,  for  cash,  upon  such  notice  and  at 
such  time  and  place  as  is  required  for  sheriff's  sale  of  like  property, 
that  is,  at  the  court-house  of  the  county,  on  the  first  Monday  of 
any  month,  or  on  the  first  Monday  or  Tuesday  of  the  term  of  the 
circuit  court  of  the  county,  and  shall  be  advertised  in  a  newspa- 
per published  in  the  county  once  in  each  week  of  three  successive 
weeks.^ 

1745.  Missouri.  —  A  deed  of  trust  is  the  usual  form  of  giving 
security  upon  real  estate ;  but  a  mortgage  with  a  power  of  sale  in 
the  mortgagee  or  his  agent  is  a  form  of  security  often  used,  and 
has  been  repeatedly  recognized  by  the  courts  as  valid.  Such  a 
power  may  be  conferred  upon  a  county  as  mortgagee,  and  may  be 
enforced  by  it.^  Deeds  of  trust  in  the  nature  of  mortgages,  at  the 
option  of  the  cestuis  que  trust,  their  executors,  or  administrators, 
or  assigns,  may  be  foreclosed  by  them,  and  the  property  sold  in  the 
same  manner,  in  all  respects,  as  in  the  case  of  mortgages ; ''  and  all 
real  estate  which  may  be  sold  by  the  trustees,  or  any  one  represent- 
ing them  in  any  deed  of  trust,  according  to  the  terms  of  said  deed, 
without  the  said  deed  of  trust  having  been  first  foreclosed,  and 
which  shall  be  bought  in  at  said  sale  by  the  cestui  que  trust  or  his 
assignee,  or  by  any  other  person  for  them^or  either  of  them,  shall 

1  The  holder  of  the  purchaser's  interest  ^  For  proceedings  when  mortgage  is  fore- 

upon  a  foreclosure  sale,  in  order  to  tack  a  closed  pending  an  action  by  the  mortgagor 

subsequent  lien,  as,  for  instance,  a  second  for  redemption,  see  Laws  1893,  ch.  82. 

mortgage,  to  it  for  tlie  purposes  of  redemp-  ^  Ford  v.  Eussell,  1  Freem.  Ch.  42. 

tion,  must  place  himself  in  the  line  of  re-  ^  Sims  v.  Hundly,  3  Miss.  896. 

dempiioners,    with  respect  to   such   subse-  ^  Annot.  Code,  1892,  §§  2484,3484-3486. 

quent  lien,  by  complying  with  the  statute  ^  Mann  v.  Best,  62  Mo.  491,  495. 

followed.     Pamperinj;.  Scaulan,  28  Minn.  '  2  R.  S.  1889,  §§  7079,  7080,  7091-7093. 

345,  9  N,  W.  Rep.  868,  and  Parke  v.  Hush,  "Deeds  of  trust  as  used  in  this  State  are  of 

29  Minn.  434, 13  N.  W.  Rep.  668  ;  Buchanan  comparatively  recent  origin."    McKnight  v. 

V.  Reid,  43  Miun.  173,  45  N.  W.  Rep.  11.  Wiiner,  38  Mo.  132. 

629 


§  1745.]  STATUTORY   PROVISIONS   RELATING   TO 

be  subject  to  redemption  by  the  grantor  in  said  deed,  or  his  execu- 
tors, administrators,  or  assigns,  at  anytime  within  one*  year  from 
the  date  of  said  sale,  on  payment  of  the  debt  and  interest  secured 
by  said  deed  of  trust,  and  all  legal  charges  and  costs  incurred  in 
making  said  sale  up  to  the  time  of  redemption  ;  and  at  such  sale 
the  purchaser  shall  receive  a  certificate  of  purchase,  setting  forth 
the  property  sold  and  amount  of  purchase-money  received,  which 
certificate  shall  be  delivered  to  the  trustee,  upon  the  application  for 
a  deed,  at  the  expiration  of  twelve  months.  No  party  shall  have 
the  benefit  of  the  right  of  redemption  so  provided  until  he  shall 
have  given  security  to  the  satisfaction  of  the  circuit  court  for  the 
payment  of  tlie  interest  to  accrue  after  the  sale,  and  for  all  damages 
and  waste  that  may  be  occasioned  or  permitted  by  the  party  whose 
property  is  sold.^ 

Mortgnges  with  powers  of  sale  in  the  mortgagee,  and  sales  made 
in  pursuance  of  them,  are  valid  and  binding  upon  the  mortgagors 
and  all  persons  claiming  under  them,  and  forever  foreclose  all  right 
and  equity  of  redemption  of  the  property  sold.  But  the  right  of  a 
tenant  to  the  growing  and  unharvested  crops  on  laud  foreclosed, 
to  the  extent  of  his  interest  under  his  lease,  shall  not  be  affected  in 
any  way.^ 

All  sales  of  real  estate  under  a  po-wer  of  sale  contained  in  any 
mortgage  or  deed  of  trust  shall  be  made  in  the  county  where  the 
land  to  be  sold  is  situated,  and  not  less  than  twenty  days'  notice 
of  such  sale  shall  be  given,  whether  so  provided  in  such  mortgage 
or  deed  of  trust  or  not.  Such  notice  shall  set  forth  the  date,  and 
book,  and  page  of  the  record  of  such  mortgage  or  deed  of  trust,  the 
grantors,  the  time,  terms,  and  place  of  sale,  and  a  description  of  the 
property  to  be  sold  ;  and  shall  be  given  by  advertisement  inserted 
for  at  least  twenty  times,  and  continued  to  the  day  of  sale,  in  some 
daily  newspaper  in  counties  having  cities  of  twenty  thousand  inhab- 

1  A  reasonable  time  is  allowed  for  giving  of  November.  The  person  entitled  to  re- 
the  security.  If  this  is  not  dpne  within  deem  should  be  diligent  and  prompt  in  tak- 
such  reasonable  time,  the  right  to  redeem  is  ing  steps  to  secure  the  right,  and  should  no- 
gone,  or  rather  does  not  spring  into  exist-  tify  the  trustee  on  the  day  of  sale  of  his 
ence,  and  the  trustee  may  properly  make  intention  to  give  the  security  ;  otherwise 
a  deed,  instead  of  giving  a  certificate  of  the  trustee,  in  the  discharge  of  his  duty, 
sale.  A  bond  given  four  months  after  the  could  make  a  deed  to  the  purchaser.  These 
sale  is  not  in  time  to  secure  the  right  of  re-  views  were  declared  in  the  recent  case  of 
demption.  Updike  v.  Elevator  Co.  96  Mo.  Van  Meter  v.  Darrah  (Mo.),  22  S.  W.  Eep. 
160,  8  S.  W.  Rep.  779.  This  ruling  was  30.  But  after  giving  such  notice  a  delay 
adhered  to  in  Dawson  v.  Egger,  97  Mo.  36,  of  two  days  in  giving  the  security  does  not 
11  S.  W.  Rep.  61,  in  which  the  facts  show  affect  the  right  of  redemption.  Godfroy 
that  the  sale  was  made  September  15th,  v.  Stocke  (Mo.),  22  S.  W,  Rep.  733. 
and  the  bond  was  not  given  until  the  28th        ^  Laws  1893,  p.  210. 

630 


POWER   OF   SALE   MORTGAGES   AND   TRUST   DEEDS.      [§§  1746-1751. 

itants  or  more,  and  in  all  otlier  counties  such  notice  shall  be  given 
by  advertisement  in  some  weekly  newspaper  published  in  such 
county,  for  three  successive  weeks,  the  last  insertion  to  be  not  more 
than  one  week  prior  to  the  day  of  sale  ;  and  if  there  be  no  news- 
paper published  in  such  county  or  city,  such  notice  shall  be  pub- 
lished in  the  nearest  newspaper  thereto  in  this  State  ;  but  the  giving 
of  any  shorter  notice  than  that  required  by  such  mortgage  or  deed 
o^  trust  is  not  authorized. 

Whenever  any  real  estate  within  this  State  shall  have  been  or 
shall  hereafter  be  sold  by  any  trustee  or  mortgagee,  or  sheriff  or 
other  person  acting  as  trustee,  under  a  power  of  sale  given  in  any 
mortgage  or  deed  of  trust,  the  recitals  in  the  trustee's  or  mortgagee's 
deed  concerning  the  default,  advertisement,  sale,  or  receipt  of  the 
purchase-money,  and  all  other  facts  pertinent  thereto,  shall  be  re- 
ceived as  prima  facie  evidence  in  all  courts  of  the  truth  thei'eof.^ 

1746.  Montana.  —  A  power  of  sale  in  a  mortgage  or  deed  of 
trust  is  valid  and  may  be  exercised. ^ 

1747.  Nebraska.  —  Power  of  sale  mortgages  and  trust  deeds 
can  be  foreclosed  only  by  action,  as  other  mortgages  are.^ 

1748.  Nevada. — Power  of  sale  mortgages  and  trust  deeds  are 
not  in  use,  as  foreclosure  must  in  all  cases  be  by  action.'* 

1749.  New  Hampshire.  —  Power  of  sale  mortgages  and  trust 
deeds,  though  not  much  used,  are  valid.^ 

1750.  New  Jersey. —  Power  of  sale  mortgages  and  trust  deeds 
are  unusual,  but  sales  made  by  virtue  of  the  powers  in  these  instru- 
ments are  fnlly  sustained.^ 

1751.  New   York."  —  A    mortgage    contaiuing  a  power    to  the 

1  R.  S.  1889,  §  7103.  For  compensation  this  State.  So  far  as  concerns  the  juris- 
of  trustees  selling  under  trust  deeds,  see  diction  of  this  State,  the  parties  may  agree 
R.  S.  1889,  §§  7101,  7102.  in  such  mortgages  upon  such  terms  of  sale 

2  First  Nat.  Bank  v.  Bell  S.  &  C.  Min.  under  the  power  as  they  please.  Elliott  v. 
Co.  8  Mont.  32,  19  Pac.  Hep.  403.  Wood,  45  N.  Y.  71,  53  Barb.  285. 

3  Webb  V.  Hoselton.4  Neb.  308;  19  Am.  To  make  a  sale  valid  under  the  statute 
Eep.  638 ;  Hurley  v.  Estes,  6  Neb.  386  ;  it  must  be  strictly  followed,  as  the  effect  of 
Comstock  V.  Michael,  17  Neb.  288,  298,  22  it  is  to  deprive  the  holder  of  the  equity  of 
N.  W.  Rep.  549;  Wheeler  v.  Sexton,  34  his  title.  Sherwood  v.  Reade,  7  Hill,  431, 
Fed.  Rep.  154.  reversing  8  Paige,  633  ;  Hubbell  v.  Sibley, 

4  §  1348.  5  Lans.  51  ;  Cohoes  Co.  v.  Goss,  13  Barb. 

5  Very  v.  Russell,  65  N.  H.  646,  23  Atl.  137.  If  the  power  contains  provisions  in- 
Rep.  522.  Perley,  J.,  in  Bell  v.  Twilight,  consistent  with  statute,  as  by  providing  for 
22  N.  H.  500,  515,' had  expressed  a  doubt  of  a  private  sale,  the  statute  regulations  must 
the  validity  of  such  mortgages.  be  followed.      Lawrence  v.  Farmers'  Loan 

6  Clark  V.  Condit,  18  N.J.  Eq.  358.  &  Trust  Co.  13  N.  Y.  200.     The  proceed- 
■^  Bliss'  Code  of  Civil  Procedure  of  1890,    ings  must  be  had  in  the  name  of  the  actual 

§§  2357-2400, 2424.  holder  of    the   mortgage.      Cohoes    Co.   v. 

These  provisions  do  not  apply  to  mort-    Goss,  13  Barb.  137. 
gages  made  upon  real  estate  not  situated  in  631 


§  1751.]  STATUTORY   PROVISIONS   RELATING   TO 

mortgagee  or  any  other  person  to  sell  the  mortgaged  property, 
upon  default,  may  be  foreclosed  in  the  manner  hereafter  prescribed 
where  the  following  requisites  concur  :  1st.  Default  has  been  made 
in  a  condition  of  the  mortgage  whereby  the  power  to  sell  has  be- 
come operative.  2d.  An  action  has  not  been  brought  to  recover  the 
debt  secured  by  the  mortgage  or  any  part  thereof ;  or,  if  such  an 
action  has  been  brought,  it  has  been  discontinued,  or  final  judgment 
has  been  rendered  therein  against  the  plaintiff,  or  an  execution 
issued  upon  a  judgment  rendered  therein  in  favor  of  the  plaintiff 
has  been  returned  wholly  or  partly  unsatisfied.  3d.  The  mortgage 
has  been  recorded  in  the  proper  book  for  recording  mortgages  in 
the  county  wherein  the  property  is  situated.^ 

The  person  entitled  to  execute  the  power  of  sale  must  give  notice 
in  the  following  manner  that  the  mortgage  will  be  foreclosed  by  a 
sale  of  the  mortgaged  property,  or  a  part  thereof,  at  a  time  and 
place  specified  in  the  notice:  1st.  A  copy  of  the  notice  must  be  pub- 
lished at  least  once  in  each  of  the  twelve  weeks  ^  immediately  pre- 
ceding the  day  of  sale,  in  a  newspaper  published  in  the  county 
wherein  the  property  to  be  sold,  or  a  part  thereof,  is  situated.^ 
2d.  A  copy  of  the  notice  must  be  fastened  up,  at  least  eighty-four 
days  before  the  day  of  sale,  in  a  conspicuous  place  at  or  near  the 
entrance  of  the  building  where  the  county  court  of  each  county 
wherein  the  property  to  be  sold  is  situated  is  directed  to  be  held ;  ^ 
or,  if  there  are  two  or  more  such  buildings  in  the  same  county,  then 
in  a  like  place  at  or  near  the  entrance  of  the  building  nearest  to  the 
property;  or,  in  the  city  or  county  of  New  York,  in  a  like  place  at 
or  near  the  entrance  of  the  building  where  the  court  of  common 
pleas  for  that  city  and  county  is  directed  by  law  to  be  held.  3d.  A 
copy  of  the  notice  must  be  delivered,  at  least  eighty-four  days  be- 
1  Where  judgment  was  recovered  on  a  eighty-five  days,  and  the  last  eight  days, 
debt  payable  by  instalments,  and  execution  before  the  sale.  Howard  v.  Hatch,  29 
was  issued  on  the  first  instalment  but  after-  Barb.  297.  If  the  first  publication  be  de- 
wards  satisfied,  it  was  held  that  there  could  fective,  there  may  be  a  republication  for  the 
be  no  statute  foreclosure  on  a  second  in-  required  time.  Cole  j;.  Moffitt,  20  Barb.  18. 
stalment  for  which  no  execution  had  been  The  publication  is  a  good  service  upon  an 
issued.     Grosvenor  v.  Day,  Clarke,  109.  unknown  party  though  an  infant.    Wheeler 

If  the  premises  are  situate  in  more  than  v.  Scully,  50  N.  Y.  667. 
one  county,  the  mortgage  must  be  recorded  ^  Jq  New  York  city,  under  authority  of 
in  each.  Wells  v.  Wells,  47  Barb.  416.  an  act  passed  in  1874,  ch.  656,  the  Daily 
The  recording  is  for  the  benefit  of  the  pur-  Register  has  been  designated  by  the  judges 
chaser,  and  objection  cannot  be  made  by  the  of  the  courts  of  record  •as  the  paper  in 
mortgagor.  Wilson  v.  Troup,  2  Cow.  195,  which  legal  notices  are  to  be  published. 
14  Am.  Dec.  458;  Jackson  v.  Colden,  4  *  If  the  land  lies  in  several  counties,  the 
Cow.  266.  notice   must   be    posted   in    each    county. 

"A   publication   once   in   each    week  is    Wells  i>.  Wells,  47  Barb.  416. 
sufficient,  though    the    first   publication  is 

632 


POWER   OF   SALE   MORTGAGES  AND   TRUST   DEEDS.        [§  1751. 

fore  the  day  of  sale,  to  the  clerk  of  each  county  wherein  the  mort- 
gaged property  or  any  part  thereof  is  situated.  4th.  A  copy  of  the 
notice  must  be  served  as  prescribed  in  the  next  section  upon  the 
mortgagor,  or,  if  he  is  dead,  upon  his  executor  or  administrator.^ 
A  copy  of  the  notice  may  also  be  served  in  like  manner  upon  a  sub- 
sequent grantee'-^  or  mortgagee  of  the  property,  whose  conveyance 
was  recorded  in  the  proper  office  for  recording  it  in  the  county,  at 
the  time  of  the  first  publication  of  the  notice  of  sale,^  upon  the 
wife  or  widow  of  the  mortgagor,  and  the  wife  or  widow  of  each 
subsequent  grantee,  whose  conveyance  was  so  recorded,  then  having 
an  inchoate  or  vested  right  of  dower,  or  an  estate  in  dower,  subor- 
dinate to  the  lien  of  the  mortgage ;  *  or  upon  any  person  then 
having  a  lien  upon  the  property  subsequent  to  the  mortgage  by  vir- 
tue of  a  judgment  or  decree  duly  docketed  in  the  county  clerk's 
office,  and  constituting  a  specific  or  general  lien  upon  the  property.^ 
The  notice  specified  in  this  section  must  be  subscribed  by  the  per- 
son entitled  to  execute  the  power  of  sale,  unless  his  name  distinctly 
appears  in  the  body  of  the  notice,  in  which  case  it  may  be  sub- 
scribed by  his  attorney  or  agent. 

Service  of  notice  of  the  sale,  as  prescribed  in  subdivision  fourth 
of  the  last  section,  must  be  made  as  follows:  1st.  Upon  the  mort- 
gagor, his  wife,  widow,  executor,  or  administrator,  or  a  subsequent 
grantee  of  the  property  whose  conveyance  is   upon   record,  or   his 

1  Notice  should  be  given  to  the  executor  It  is  so  as  to  the  persons  not  served  with 

or  administrator,  not  to  the  heirs  or  devisees,  notice.     Eaynor  v.  Eaynor,  21  Hun,  36. 

Anderson  v.  Austin,  34  Barb.  319;  Low  v.  *  In  case  the  mortgage  was  executed  by 

Purdy,  2  Lans.  422.  husband  and  wife,  the  notice  of  sale  after 

^  An   assignee  in   bankruptcy  is  such  a  the  death  of  the  husband  must  be  served  on 

grantee.     Ostrander  y.  Hart,  130  N.  Y.  406,  the  wife  as   surviving   mortgagor,   though 

30  N.  E.  Eep.  504.  not  necessary  to  bar  her  dower  in  a  pur- 

3  An   assignee  of  a  junior  mortgage  is  chase-money  mortgage.     King  i;.  Duntz,  11 

entitled  to  notice.     Winslow  v.  McCall,  32  Barb.  191.     And  see  Brackett  v.  Baum,  50 

Barb.  241;  Wetmore  v.  Roberts,  10  How.  N.  Y.  8.    "  Personal  representatives  "  means 

Pr.  51.  executors  or  administrators,  and  not  heirs. 

Only  such  mortgagees  or  assignees  whose  Anderson  v.  Austin,  34  Barb.  319;  Low  v. 

mortgages  or  assignments  are  recorded  are  Purdy,  2  Lans.  422. 

entitled    to    notice.     Decker   v.   Boice,   19  ^  xhe  lien  of  a  judgment  perfected  after 

Hun,  152.  the  first  publication  of  notice,  and  before 

A  party  in  interest  who  is  not  served  sale,  is  not  cut  off  unless  notice  is  served 
with  notice  is  not  affected  or  barred  by  the  upon  the  judgment  creditor  as  here  pro- 
sale.  Wetmore  v.  Roberts,  10  How.  Pr.  51 ;  vided.  Groff  v.  Morehouse,  51  N.  Y.  503. 
Root  V.  Wheeler,  12  Abb.  Pr.  294;  North-  See,  also,  Klock  v.  Cronkhite,  1  Hill,  107; 
rup  V.  Wheeler,  43  How.  Pr.  122.  Winslow  v.  McCall,  32  Barb.  241.     Though 

If  the  owner  of  the  equity  of  redemption  one  judgment  creditor   has  no  notice,  the 

be  not  served  with  notice,  qmtre,  whether  sale  is  not  therefore  invalidated  as  toothers 

the   foreclosure   is  not  a  nullity  as  to  all  who  were  served  with  notice.     Hubbell  v. 

parties.     Mickles  v.  Dillaye,  15  Hun,  296.  Sibley,  5  Lans.  51. 

633 


§  1751.]  STATUTORY   PROVISIONS   RELATING   TO 

wife  or  widow,  by  delivering  a  copy  of  the  notice,  as  prescribed  for 
delivery  of  a  copy  of  a  summons,  in  order  to  make  personal  service 
thereof  upon  the  person  to  be  served ;  or  by  leaving  such  a  copy, 
addressed  to  the  person  to  be  served,  at  his  dwelling-house,  with  a 
person  of  suitable  age  and  discretion,  at  least  fourteen  days  before 
the  day  of  sale.  If  said  mortgagor  is  a  foreign  corporation,  or, 
being  a  natural  person,  he,  or  his  wife,  widow,  executor,  or  admin- 
istrator, or  a  subsequent  grantee  of  the  property  whose  conversance 
is  upon  record,  or  his  wife  or  widow,  is  not  a  resident  of  or  within  the 
State,  then  service  thereof  may  be  made  upon  them  in  like  manner 
without  the  State  at  least  twenty-eight  days  prior  to  the  day  of 
sale.  2d.  Upon  any  other  person  either  in  the  same  method,  or  by 
depositing  a  copy  of  the  notice  in  the  post-office,^  properly  enclosed 
in  a  postpaid  wrapjDer,  directed  to  the  person  to  be  served,  at  his 
place  of  residence,  at  least  twenty-eight  days  before  the  day  of 
sale.2 

A  count}^  clerk  to  whom  a  copy  of  a  notice  of  sale  is  delivered, 
as  prescribed  in  subdivision  third  of  the  last  section  but  one,  must 
forthwith  affix  it  in  a  book  kept  in  his  office  for  that  purpose  ;  must 
make  and  subscribe  a  minute,  at  the  bottom  of  the  copy,  of  the 
time  when  he  received  and  affixed  it;  and  must  index  the  notice  to 
the  name  of  the  mortgagor. 

The  notice  of  sale  must  specify :  ^  1st.  The  names  of  the  mort- 
gagor, of  the  mortgagee,  and  of  each  assignee  of  the  mortgage.  2d. 
The  date  of  the  mortgage,  and  the  time  when,  and  the  place  where, 
it  is  recorded.^     3d.  The  sum  claimed  to  be  due  upon  the  mortgage 

1  The  notice  may  be  mailed  at  any  place  if  no  personal  representative  is  appointed, 
in  the  State.  Stanton  v.  Kline,  11  N.  Y.  Bond  i'.  Bond,  51  Hun,  507.  Contra,  Van 
196;  Bunce  v.  Reed,  16  Barb.  347.  The  Schaack  ?•.  Saunders,  32  Hun,  515.  Service 
twenty-eight  days  are  to  be  counted  from  upon  one  named  in  a  will  as  executor  is 
the  time  of  deposit  in  the  post-office,  with-  sufEcient,  though  letters  have  not  been  issued 
out  reference  to  the  mailing.  Hornby  v.  to  him.  Van  Schaack  y.  Saunders,  32  Hun, 
Cramer, '12  How.   Pr.  490.     A  mistake  in  515. 

addressing  a  party  at  a  place  other  than  his  The  three  modes  of  giving  notice  must  be 

residence  renders  the  sale  void  as  to  him.  used  together.     If  one  of  them  be  omitted 

Robinson  v.  Ryan,  25  N.  Y.  320.  the  foreclosure  is  void.     Cole  v.  Moffitt,  20 

2  A  notice  addressed  to  A.  B.,  admin-  Barb.  18;  Stanton  v.  Kline,  16  Barb.  9; 
istrator,  is  sufficient,  without  naming  the  King  j7.  Duntz,  11  Barb.  191 ;  Van  Slyke  r. 
estate  of  the  deceased.  George  y.  Arthur,  Shelden,  9  Barb.  278;  Low  r.  Purdy,  2 
2  Hun,  406,  4  T.  &  C.  635.  If  it  does  not  Lans.  422 ;  Mowry  v.  Sanborn,  62  Barb, 
appear,  except  on   information  and  belief,  223. 

that  the  mortgagors  resided  at  the  place  to  ^  Jt  need  not  state  that  the  mortgage  will 

which  the  notices  were  addressed  and  mailed,  be  foreclosed  ;  Leet  u.  McMaster,  51  Barb, 

the   proceedings   are  defective.     Mowry  v.  236 ;  or  that  the  sale  is  for  the  purpose  of 

Sanborn,  7  Hun,  380.  foreclosure.     Judd  v.  O'Brien,  21  N.  Y.  186. 

Notice  to  the  heirs  at  law  is  insufficient  *  The  place  of  record  is  sufficiently  speci- 

634 


POWER   OF   SALE   MORTGAGES   AND   TRUST   DEEDS.       [§  1751. 

at  the  time  of  tlie  first  publication  of  the  notice;^  and,  if  any  sum 
secured  by  the  mortgage  is  not  then  due,  the  amount  to  become 
due  tliereupon.  4th.  A  description  of  the  mortgaged  property  con- 
forming substantially  to  that  contained  in  the  mortgage.^ 

The  sale  may  be  postponed  .from  time  to  time.  In  that  case  a 
notice  of  the  postponement  must  be  published  as  soon  as  practi- 
cable thereafter  in  the  newspaper  in  which  the  original  notice  was 
published ;  and  the  publication  of  the  original  notice,  and  of  each 
notice  of  postponement,  must  be  continued  at  least  once  in  each 
week  until  the  time  to  which  the  sale  is  finally  postponed.^ 

The  sale  must  be  at  public  auction,*  in  the  daytime,  on  a  day 
other  than  Sunday  or  a  public  holiday,  in  the  county  in  which  the 
mortgaged  property,  or  a  part  thereof,  is  situated ;  except  that, 
where  the  mortgage  is  to  the  people  of  the  State,  the  sale  may  be 
made  at  the  capital.  If  the  property  consists  of  two  or  more  dis- 
tinct farms,  tracts,  or  lots,  they  must  be  sold  separatel}^ ;  and  as 
many  only  of  the  distinct  farms,  tracts,  or  lots  shall  be  sold  as  it 
is  necessary  to  sell  in  order  to  satisfy  the  amount  due  at  the  time 
of  the  sale,  and  the  costs  and  expenses  allowed  by  law.^  But 
where  two  or  more  buildings  are  situated  upon  the  same  city  lot, 
and  access  to  one  is  obtained  through  the  other,  they  must  be' 
sold  together. 

The  mortgagee,  or  his  assignee,  or  the  legal  representative  of 
either,  may,  fairly  and  in  good  faith,  purchase  the  mortgaged  prop- 
erty, or  any  part  thereof,  at  the  sale. 

A  sale  made  and  conducted  as  prescribed,  to  a  purchaser  in 
good  faith,  is  equivalent  to  a  sale  pursuant  to  judgment  in  an  ac- 

fied  by  stating  the  clerk's  office  and  the  date  the  sale  will  be  void  ;  but  if  inserted   by 

of  record,  though  the  number  of  the  book  mistake  merely,  and   a   correction  is  pub- 

in  which  it  is  recorded  is  erroneously  stated,  lished  with  the  notice  before  it  could  be  pre- 

5  Waite's  Practice,  253;  Judd  v.  O'Brien,  sumed  that  persons  wishing  to  bid  would 

21  N.  Y.  186,  188.  be  misled,  the  error  would  not  vitiate  the 

1  A  mistake  as  to  the  amount  due  does  sale.     Such  an  error  was  the  statement  of 

not  invalidate  the  sale.     Klock  u.  Croukhite,  a  prior   incumbrance   at    twice   its   actual 

1  Hill,  107;  Jencks  y.  Alexander,  11  Paige,  amount.     Hubbell   v.    Sibley,   5  LaBS.    51 

619  ;  Bunce  v.  Reed,  16  Barb.  347  ;  Mowry  And  see  Klock  v.  Cronkhite,  1  Hill,  107; 

V.  Sanborn,  62  Barb.  223.  Burnet  v.  Uenniston,  5  Johns.  Ch.  35,  42, 

If  only  a  part  of  the  debt  is  due,  it  is  well  For  form  of  notice,  see  5  Wait's  Prac.  254. 

to  state  both  the  amount  due  and  the  whole  ^  jt  jg  not  necessary  to  serve  notice  of 

amount    also.     Jencks    v.    Alexander,    11  postponement;  the  publication  is  sufficient. 

Paige,  619,  626.  Westgate  v.  Handlin,  7  How.  Pr.  372. 

^  The  statute  does  not  require  any  refer-  *  A  private  sale,  though  expressly  author- 
ence  in  the  notice  of  sale  to  incumbrances,  ized  by  the  mortgage,  would    not   bar  the 
If  matters  not  called  for  by  tlie  statute  are  equity  of  redemption.     Lawrence  v.  Farm- 
stated,  wliich  are  calculated  to  mislead  the  ers'  Loan  «So  Trust  Co.  13  N.  Y.  200,  642. 
public  and  prevent  persons  from   bidding,  '^  See  Cox  v.  Wheeler,  7  Paige,  248. 

635 


§  1751.]  STATUTORY    PROVISIONS   RELATING   TO 

tion  to  foreclose  the  mortgage,  so  far  only  as  to  be  an  entire  bar 
of  all  claim  or  equity  of  redemption,  upon,  or  with  respect  to,  the 
property  sold,  of  each  of  the  following  persons :  1st.  The  mort- 
gagor, his  heir,  devisee,  executor,  or  administrator.  2d.  Each 
person,  claiming  under  any  of  them  by  virtue  of  a  title,  or  of  a 
lien  by  judgment  or  decree  subsequent  to  the  mortgage,  upon 
whom  the  notice  of  sale  was  served  as  prescribed  in  this  title.^ 
3d.  Each  person  so  claiming,  whose  assignment,  mortgage,  or 
other  conveyance  was  not  duly  recorded  in  the  proper  book  for 
recording  the  same  in  the  county,  or  whose  judgment  or  decree 
was  not  duly  docketed  in  the  county  clerk's  office  at  tlie  time  of 
the  delivery  of  a  copy  of  the  notice  of  said  sale  to  the  clerk  of  this 
county,  and  the  executor,  administrator,  or  assignee  of  such  a  per- 
son. 4th.  Every  other  person  claiming  under  a  statutory  lien  or 
incumbrance,  created  subsequent  to  the  mortgage,  attaching  to  the 
title  or  interest  of  any  person  designated  in  either  of  the  foregoing 
subdivisions  of  this  section.  5th.  The  wife  or  widow  of  the  mort- 
gagor, or  of  a  subsequent  grantee,  upon  whom  notice  of  the  sale 
was  served  as  prescribed  in  this  title,  where  the  lien  of  the  mort- 
gage was  superior  to  her  contingent  or  vested  right  of  dower  or  her 
estate  in  dower. 

An  affidavit  of  the  sale,  stating  the  time  when  and  the  place 
where  the  sale  was  made,  the  sum  bid  for  each  distinct  parcel 
separately  sold,  and  the  name  of  the  purchaser  of  each  distinct 
parcel,  may  be  made  by  the  person  who  officiated  as  auctioneer 
upon  the  sale.  An  affidavit  of  the  publication  of  the  notice  of 
sale,  and  of  the  notice  or  notices  of  postponement,  if  any,  may  be 
made  by  the  publisher  or  printer  of  the  newspaper  in  which  they 
were  published,  or  by  his  foreman  or  principal  clerk.  An  affidavit 
of  the  affixing  of  a  copy  of  the  notice,  at  or  near  the  entrance 
of  the  proper  court-house,  may  be  made  by  the  person  who  so  af- 
fixed it,  or  by  any  person  who  saw  it  so  affixed,  at  least  eighty- 
four  days  before  the  day  of  sale.  An  affidavit  of  the  affixing  of  a 
copy  of  the  notice  in  the  book  kept  by  the  county  clerk  may  be 
made  by  the  countj'  clerk,  or  by  any  person  who  saw  it  so  affixed, 
at  least  eighty-four  days  before  the  day  of  sale.^     An  affidavit  of 

1  Demarest  v.  Wynkoop,  3  Johns  Ch.  It  may  be  regarded  as  claiming  under  him. 
129,8  Am.  Dec.  467  ;  Mowry  v.  Sanborn,  Brackett  v.  Baum,  50  N.  Y.  8.  Notice 
62  Barb.  223;  Klock  w.  Cronkhite,  I  Hill,  must  be  served  upon  her.  Service  upon 
107.  A  mortgage  for  the  purchase-money  her  husband  alone  is  not  enough.  North- 
not  being  subject  to  the  dower  right  of  the  rup  v.  Wheeler,  43  How.  Pr.  122. 
mortgagor's  wife,  though  not  a  party  to  it,  "^  A  notice  once  affixed  is  presumed  to 
a  sale  under  the  power  is  a  bar  to  the  right,  remain,  and  the  affidavit  may  be  made  by 

636 


POWER  OF   SALE   MORTGAGES   AND   TRUST   DEEDS.       [§  1751. 

the  service  of  a  copy  of  the  notice  upon  the  mortgagor,  or  upon  any 
other  person  upon  whom  the  notice  must  or  may  be  served,  may  be 
made  by  the  person  who  made  the  service.^  Where  two  or  more 
distinct  parcels  are  sold  to  different  purchasers,  separate  affidavits 
may  be  made  with  respect  to  each  parcel,  or  one  set  of  affidavits 
may  be  made  for  all  the  parcels. 

The  matters  required,  to  be  contained  in  any  or  all  of  the  affida- 
vits specified  in  the  last  section  may  be  contained  in  one  affidavit, 
where  the  same  person  deposes  with  respect  to  them.  A  printed 
copy  of  the  notice  of  sale  must  be  annexed  to  each  affidavit,  and  a 
printed  copy  of  each  notice  of  postponement  must  be  annexed  to 
the  affidavit  of  publication  and  to  the  affidavit  of  sale. 

The  affidavits  specified  in  the  last  two  sections  may  be  filed  in 
the  office  for  recording  deeds  and  mortgages  in  the  county  where 
the  sale  took  place.  They  must  be  recorded  at  length  by  the  officer 
vs^ith  whom  they  are  filed,  in  the  proper  book  for  recording  mort- 
gages. The  original  affidavits  so  filed,  the  record  thereof,  and  a 
certified  copy  of  the  record,  are  presumptive  evidence  of  the  mat- 
ters of  fact  therein  stated,  with  respect  to  any  property  sold  which 
is  situated  in  that  county.''^  Where  the  property  sold  is  situated  in 
two  or  more  counties,  a  copy  of  the  affidavits  certified  by  the  officer 
with  whom  the  originals  are  filed  may  be  filed  and  recorded  in  each 
other  county  wherein  any  of  the  property  is  situated.  Thereupon 
the  copy  and  the  record  thereof  have   the  like   effect,  with  respect 

one  who  saw  it  posted  twelve  weeks  prior  -  The  affidavits  are  not  conclusive;  they 

to  the  sale.      It  is  not  necessary  that  he  may   be  disproved.      Bunce    v.    Reed,    16 

should  have  seen  it  each  week.     Hornby  v.  Barb.  347 ;  Sherman  v.  Willett,  42  N.  Y. 

Cramer,  12  How.  Pr.  490.  146  ;  Mowry  v.  Sanborn,  62  Barb.  223,  72 

1  An  affidavit  on  information  and  belief,  N.  Y.  534. 

as  to  the  place  of  residence  of  the  mort-  For  form  of  affidavits  see  5  Wait's  Trac. 

gagors,  to  whom  notice  was  mailed,  is  suf-  258,    261.      The   recording    of    the   affida- 

ficient,  in  the  absence  of  proof  that  they  vits  is  not  essential  to  the  passing  of  title, 

did  not  receive  the  notices,  or  that  they  re-  Howard  v.  Hatch,    29  Barb.  297  ;  Frink  v. 

sided   elsewhere.      MowTy  v.   Sanborn,   62  Thompson,    4   Lans.   489,   overruling    the 

Barb.  223.     Such  affidavit  does  not  furnish  dictum   in   Cohoes  Co.  v.   Goss,    13   Barb, 

presumptive  evidence  of  service,  but  other  137  ;   also  dictum  in   Tuthill  v.  Tracy,  31 

evidence  is  competent  to  show  the  fact  of  N.  Y.  157.     See,  also,  Bryan  v.  Butts,  27 

service.      Youker  v.   Treadwell,   4   N.    Y.  Barb.  503.     But  the  affidavits  must  show  a 

Supp.  674.  full  compliance  with  the  statute  ;  and  the 

Insufficiency  of  service  of  notice  renders  omission  of  a  fact  which   the   statute   re- 

the  sale  invalid  only  as  to   the  party  with-  quires  to  be  shown  by  affidavit  cannot  be 

out   notice.      Youker   v.   Treadwell,   4   N.  supplied  by  amendment  of  it,  though  per- 

Y.   Supp.   674.      The  holder  of  the  mort-  haps  new  affidavits  might  be  filed.    Dwight 

gage  may  give  tlie  notice,  though  he  be  the  v.  Phillips,  48  Barb.  116. 
purchaser.     Hubbell  v.  Sibley,  5  Lans.  51. 

637 


1751.] 


STATUTORY   PROVISIONS   RELATING   TO 


to  the  property  in   that  count}^  as   if  the   originals  were   duly  filed 
and  recorded  therein. 

A  clerk  or  register  who  records  any  affidavits  or  a  certified  copy 
thereof,  filed  with  him,  must  make  a  note  upon  the  margin  of  the 
record  of  the  mortgage  in  his  office,  referring  to  the  book  and  page, 
or  the  copy  thereof,  where  the  affidavits  are  recorded. 

The  purchaser  of  the  mortgaged  premises  upon  a  sale  conducted 
as  prescribed  in  this  title  obtains  title  thereto  against  all  persons 
bound  by  the  sale,  without  the  execution  of  a  conveyance.^  Ex- 
cept where  he  is  the  person  authorized  to  execute  the  power  of 
sale,  such  a  purcliaser  also  obtains  title  in  like  manner  upon  pay- 
ment of  the  purchase-money,  and  compliance  with  other  terms 
of  sale,  if  any,  without  the  filing  and  recording  of  the  affidavits 
prescribed.  But  he  is  not  bound  to  pay  the  purchase-money  until 
the  affidavits  specified  in  that  section,  with  respect  to  the  prop- 
erty purchased  by  him,  are  filed  or  delivered,  or  tendered  to  him 
for  filing. 

An  attorney  or  other  person,  who  receives  any  money  arising 
upon  a  sale  made  as  prescribed  in  this  title,  must,  within  ten  days 
after  he  receives  it,  pay  into  the  Supreme  Court  the  surplus  exceed- 
ing the  sum  due  and  to  become  due  upon  the  mortgage,  and  the 
costs  and  expenses  of  the  foreclosure,  in  like  manner  and  with  like 
effect  as  if  the  proceedings  to  foreclose  the  mortgage  were  taken  in 
an  action  brought  in  the  Supreme  Court  and  triable  in  the  county 
where  the  sale  took  place.^ 

1  Jackson  v.  Coldeu,  4  Cow.  266 ;  Slee  v.        The  following  costs  are  allowed  in  pro- 
Manhattan  Co.  1  Paige,  48.  ceediugs  taken  as  prescribed  in  the  title: 

The  affidavits  in  such  case  stand  in  place  1st.  For  drawing  a  notice  of  sale,  a  notice 

of  a  deed,  and  are  conclusive  as  against  the  of  the  postponement  of  a  sale,  or  an  affi- 

mortgagor  and  those  claiming  under  him.  davit,  made  as  prescribed  in  this  title,  for 

Arnot  V.  McClure,  4   Denio,  41;    Cohoes  each   folio,  twenty-five  cents;   for  making 

Co.  V.  Goss,  13  Barb.  137,  144  ;  Layman  v.  each  necessary  copy  thereof,  for  each  folio, 

Whiting,  20  Barb.  559 ;    Mowry   i'.    San-  thirteen  cents.     2d.  For  serving  each  copy 

born,  6S  N.  Y.  153.  of  the  notice  of  sale  required  or  expressly 

-  The  mortgagee  himself  is  not  responsi-  permitted  to  be  served  by  this  title,  and  for 

ble  to  subsequent  lieu  creditors  for  a  sur-  affixing  each  copy   thereof  required  to  be 

plus   left   in    the    hands   of    a    purchaser,  affixed  upon  the  court-house,  as  prescribed 

Russell  V.   Duflon,  4  Lans.  399.     For  pro-  in  this  title,  one  dollar.     3d.  For  superin- 

ceedings  in  relation  to  surplus,  see  5  Wait's  tending  the  sale  and  attending  to  the  execu- 

I'rac.  264.  lion  of  the  necessary  papers,  ten  dollars. 

But  if  the  mortgagee  receive  the  surplus,        The  sums  actually  paid  for  the  following 

he  is  liable  to  subsequent  lien -holders,  services,  not  exceeding  the  fees  allowed  by 
though  not  for  interest  on  it  until  demand. 
Russell  V.  Duflon,  4  Lans.  399;  Bevier  v. 
Schoonmaker,  20  How.  Pr.  411.  Code  of 
Civil  Procedure  1880,  §§  2401-2403;  Laws 
N.  Y.  1880,  pp.  312,313. 
638 


law  for  those  services,  are  allowed  in  pro- 
ceedings taken  as  prescribed  in  this  title  : 
1st.  For  publishing  the  notice  of  sale,  and 
the  notice  or  notices  of  postponement  if 
am%  for  a  period  not  exceeding  twenty-four 


POWER   OF   SALE   MORTGAGES   AND   TRUST   DEEDS.     [§§  1752,  1752  a. 

1752.  North  Carolina.  —  Power  of  sale  mortgages  "have  long 
been  in  general  use  unquestioned."  ^  Deeds  of  trust  are  also  in 
use.  It  is  provided  that  upon  the  death  of  the  mortgagee  all  his 
rights,  powers,  and  duties  shall  devolve  upon  his  executor  or  ad- 
ministrator.2  The  sale,  whether  advertised  in  some  paper  or  other- 
wise, shall  also  be  advertised  by  posting  a  notice  at  some  con- 
spicuous place  at  the  court-house  door  in  the  county  where  the 
property  is  situated,  such  notice  to  be  posted  for  at  least  twenty 
days  before  the  sale,  unless  a  shorter  time  be  expressed  in  the  con- 
tract.^ 

1752  a.  North  Dakota  and  South  Dakota.*  —  A  power  of  sale 
may  be  conferred  by  a  mortgage  upon  the  mortgagee  or  any  other 
person,  to  be  exercised  after  a  breach  of  the  obligation  for  which  the 
mortgage  is  a  security.  The  power  is  a  part  of  the  security,  and 
passes  by  an  assignment.  Such  power  of  sale  is  a  trust,  and  can  be 
executed  only  in  the  manner  prescribed.  Before  a  foreclosure  can  be 
made  by  advertisement  a  default  must  have  occurred,  and  it  is  fur- 
ther requisite  that  there  be  no  suit  pending  for  the  recovery  of  the 
debt ;  that  any  execution  that  may  have  been  rendei'ed  shall  have 
been  returned  unsatisfied  ;  and  that  the  mortgage  and  any  assign- 
ment of  it  shall  have  been  recorded.  Each  instalment  of  the  mort- 
gage is  deemed  to  be  a  separate  mortgage  so  far  as  to  entitle  the 
holder  of  it  to  a  foreclosure. 

Notice  of  the  foreclosure  sale  must  be  given  by  publishing  the 
same  for  six  successive  weeks,  at  least  once  in  each  week,  in  a  news- 
paper of  the  county  where  the  premises  or  some  part  of  them  are 
situated,  if  there  be  one ;  if  not,  then  in  the  nearest  paper  published 
in  the  State.  The  notice  must  specify  the  names  of  the  mortgagor 
and  mortgagee,  and  the  assignee,  if  any ;  the  date  of  the  mortgage ; 

weeks.      2d.    For  the  services   specified  in  Paschal  v.  Harris,  74  N.  C.   335  ;    Olcott 

§  2390  of  this  act.     3d.  For  recording  the  v.  Bjnura,  17   Wall.   44.      A  "stay  law," 

affidavits,  and  also  where  the  property  sold  providing  that  no  property  should  be  sold 

is   situated   in   two  or   more  counties,  for  under  a  deed  of  trust  or  mortgage  until  the 

making   and  recording   the  necessary  cer-  debts  secured  in   the  deed  are  reduced  to 

tified   copies  thereof.     4tli.   For  necessary  judgments,   was   held   unconstitutional,   as 

postage  and  searches.  not  only  impairing  the  obligation  of  a  con- 

The  costs  and  expenses  must  be  taxed,  tract,  but  altering  it  by  adding  a  condition, 
upon    notice,  by   the   clerk  of   the  county  Latham  v.  Whitehurst,  69  N.  C.  33. 
where  the  sale  took  place,  upon  the  request  ^  Laws  1887,  ch.  147. 
and  at  the  expense  of  any  person  interested  "  Laws  1889,  ch.  70. 
in  the  payment  thereof.     Each  provision  of  *  Code  of  Civ.  Pro.   1883,  §§   597-615; 
this  act  relating  to  the  taxation  of  costs  iu  Comp.  Laws  1887,  §§  5411-5429.     And  see 
the  Supreme  Court  and  the  review  thereof  §§  5150-5159.     The  statutory  right  of  re- 
applies to  such  a  taxation,  demption   applies  to  a  trust  deed  or  mort- 

^  Hyman   v.   Devereux,   63   N.    C.    624,  gage  with  power  of  sale.     Kent  v.  Laffan,  2 

628  ;    Blount  v.  Carroway,  67  N.  C.  396 ;  Cal.  595  ;  Levy  v.  Burkle,  14  Pac.  Rep.  564. 

639 


§  1752  a.]  STATUTORY    PROVISIONS   RELATING   TO 

the  amonnt  claimed  to  be  due  at  the  date  of  the  notice  ;  a  descrip- 
tion of  the  premises  substantially  as  in  the  mortgage ;  and  the  time 
and  place  of  sale. 

The  sale  must  be  at  public  auction,  between  the  hour  of  nine 
o'clock  in  the  forenoon  and  the  setting  of  the  sun  on  that  day,  in 
the  county  in  which  the  premises  to  be  sold,  or  some  part  of  them, 
are  situated,  and  must  be  made  by  the  person  appointed  for  that 
purpose  in  the  mortgage,  or  by  the  sheriff  or  deputy  sheriff  of  the 
county,  to  the  highest  bidder. 

The  sale  may  be  postponed  by  inserting  a  notice  of  the  postpone- 
ment, as  soon  as  practicable,  in  the  newspaper  in  which  the  original 
advertisement  was  published,  and  continuing  this  until  the  time  of 
the  postponed  sale,  at  the  expense  of  the  party  requesting  the  post- 
ponement. If  the  promises  consist  of  distinct  farms  or  lots  they 
must  be  sold  separately,  and  no  more  can  be  sold  than  is  sufficient 
to  satisfy  the  amount  due  at  the  date  of  the  notice  of  sale,  with  in- 
terest and  costs.  The  mortgagee  may  fairly  and  in  good  faith  pur- 
chase at  the  sale.  The  officer  making  the  sale  gives  to  the  purchaser 
a  certificate  stating  a  particular  description  of  the  property  sold,  the 
price  bid  for  each  distinct  lot,  and  the  whole  price  paid,  and  files  a 
duplicate  in  the  registry  of  deeds. ^ 

Redemption  may  be  made  within  one  year  after  the  sale  by  pay- 
ment to  the  purchaser,  if  within  the  county,  or  otherwise  to  the 
officer  who  made  the  sale,  of  the  amount  for  which  the  premises 
sold,  together  with  interest  at  the  rate  of  twelve  per  cent,  per  an- 
num from  the  time  of  sale.  If  not  redeemed,  the  officer  executes 
a  deed  of  the  premises  to  the  purchaser.  Any  surplus  there  may 
be  must  be  paid  over  by  the  officer  to  the  mortgagor,  his  represen- 
tatives or  assigns.^ 

The  evidence  of  the  sale  may  be  perpetuated  by  an  affidavit  of 
the  publication  of  the  notice  made  by  the  printer ;  an  affidavit  of 
the  fact  of  sale,  of  the  time  and  place  of  the  sale,  of  the  sum  bid, 
and  the  name  of  the  purchaser,  made  by  the  person  who  acted  as 
auctioneer.  Such  affidavits  are  recorded  in  the  registry  of  deeds  for 
the  count}',  and  are  presumptive  evidence  of  the  facts  set  forth. 
The  party  foreclosing  a  mortgage  by  advertisement  is  entitled  to 
his  costs  and  disbursements  out  of  the  sale,  in  addition  to  any  at- 
torney's fee  agreed  upon  in  the  mortgage. 

1  The  requirement  to  file  a  duplicate  cer-  -  The  complaint  by  its  averments  must 
tificate  is  directorj,  not  mandatory.  John-  show  a  cause  of  action.  Aultman  v.  Seg- 
son  V.  Day,  2  N.  d".  295,  50  N.  W.  Rep.  701.    linger  (S.  D.),  50  N.  W.  Rep.  911. 

640 


POWER   OF   SALE   MORTGAGES   AND   TRUST   DEEDS.       [§§  1753-1757. 

1753.  Ohio.  —  Power  of  sale  mortgages  and  trust  deeds  are  sel- 
dom used. 

1754.  Oregon. — Power  of  sale  mortgages  and  trust  deeds  are 
seldom  used. 

1755.  Pennsylvania.  —  Power  of  sale  mortgages  and  trust  deeds 
were  seldom  used  until  quite  recently,  but  have  now  become  a  com- 
mon mode  of  creating  marketable  securities  on  which  to  raise  loans 
for  corporations.^ 

1756.  Rhode  Island.  —  Mortgages  generally  contain  a  power  of 
sale.     Trust  deeds,  being  less  effectual,  are  not  in  common  use. 

At  any  sale  by  public  auction  made  according  to  the  provisions 
of  any  mortgage,  or  other  conveyance  by  way  of  mortgage,  or  of 
any  power  of  sale  contained  in  it  or  annexed  to  it,  the  mortgagee, 
his  heirs  or  assigns,  or  any  person  for  him,  may  fairly  and  in  good 
faith  bid  for  and  purchase  the  property  or  any  part  of  it,  in  the 
same  manner  as  other  persons  may  bid  for  and  purchase  it :  pro- 
vided, that  notice  in  writing  of  his  intention  to  bid  shall  be  given 
to  the  mortgagor,  or  left  at  his  last  and  usual  place  of  abode, 
twenty  days  prior  to  the  time  of  sale  at  which  he  proposes  to  bid  as 
mortgtigee,  and  that  the  proper  evidence  that  such  notice  has  been 
given  shall  be  in  the  possession  of  the  auctioneer  at  the  time  the 
sale  takes  place  ;  or  that  such  mortgagee  shall,  in  his  public  adver- 
tisement of  sale,  give  notice  that  it  is  his  intention  to  bid  upon  such 
property  so  advertised  for  sale.^ 

Whenever  any  mortgagee,  or  any  person  acting  under  a  power 
of  sale,  shall  sell  any  real  estate  the  title  to  which  will  in  any 
manner  depend  upon  notice  of  sale  to  be  published  in  any  news- 
paper, the  person  causing  such  sale  to  be  made  shall  cause  a  copy 
of  the  advertisement,  in  pursuance  of  which  such  sale  is  made, 
to  be  attached  to  the  deed  given  thereunder,  together  with  his, 
her,  or  their  affidavit,  stating  when,  how  many  times,  and  in  what 
newspaper  or  newspapers,  such  advertisement  was  published,  and 
the  manner,  time,  and  place  of  making  such  sale.  Such  copy  and 
affidavit  shall  be  recorded  with  the  deed  to  which  they  are  attached, 
and  the  record  thereof  shall  be  primd  facie  evidence  of  the  truth 
of  the  matters  and  things  therein  stated.^ 

1757.  South  Carolina.  —  Trust  deeds  seem  to  be  in  use.     Power 

1  Bradley  v.   Chester   Valley   R.  R.  Co.  If  the  mortgagor  has  conveyed  the  equity 

36  Pa.   St.   141,   151  ;    Corpman  v.  Bacca-  of   redemption,  the  notice  prescribed  must 

stow,  84  Pa.  St.  363,  5  N.  Y.  W.  R.  204.  be  given  to  the  purchaser.     McLaughlin  v. 

'  P.  S.  1882,  eh.  176,  §  15;    Acts  1891,  Hanley,  12  R.  I.  61. 

ch.  1011.  3  p.  s.  1882,  ch.  173,  §  11. 

VOL.  II.                     41  641 


§  1758-1761.]      STATUTORY   PROVISIONS  RELATING   TO 

of  sale  mortgages,  though  not  in  very  common  use,^  are  valid,  and 
the  equity  of  redemption  may  be  barred  by  a  sale  in  compliance 
with  the  terms  of  the  power.^ 

1758.  Tennessee.  —  Power  of  sale  mortgages  and  trust  deeds 
are  in  use.  Real  estate  sold  under  them  by  virtue  of  the  power 
is  subject  to  redemption  at  any  time  within  two  years,  in  the 
same  manner  as  when  sales  are  made  under  judicial  decree,^  un- 
less the  right  of  redemption  is  expressly  waived  or  surrendered  in 
the  deed  or  mortgage.*  But  if  the  mortgagee  does  not  exercise 
a  power  of  sale  free  from  the  equity  of  redemption  contained  in 
a  mortgage,  and  the  sale  be  not  made  under  a  decree  of  court,  the 
right  of  redemption  will  still  exist.  The  statute  cutting  off  the 
equity  of  redemption  must  be  strictly  pursued.^ 

1759.  Texas.  —  Trust  deeds  are  in  common  use,  and  power  of 
■sale  mortgages  are  also  sometimes  used.^ 

1760.  Vermont.  —  A  power  of  sale  in  a  mortgage  is  unusual 
if  not  unknown,  and  there  is  no  statute  regulating  its  exercise." 
Neither  are  trust  deeds  in  use  as  a  mode  of  securing  debts. 

1761.  Virginia.  —  Trust  deeds  are  used  to  the  exclusion,  almost, 
of  all  other  forms  of  security  upon  real  estate.  It  is  provided  that 
the  trustee  in  such  deed,^  except  so  far  as  may  be  therein  otherwise 
provided,  shall,  whenever  required  by  any  creditor  secured  or  any 
surety  indemnified  by  the  deed,  or  the  personal  representative  of 
any  such  creditor  or  surety,  after  the  debt  due  to  such  creditor,  or 
for  which  such  surety  may  be  liable,  shall  have  become  payable,  and 
default  shall  have  been  made  in  the  pa3nnent  thereof,  or  any  part 

1  Mitchell  V.   Bogan,   11    Rich.  686,  per  rison  y.   Bean,  15   Tex.  267;  Buchanan   v. 

Withers,  J.:  "Not  familiar  in  our  observa-  Monroe,  22  Tex.  537;  McLane  v.  Paschal, 

tion."  47  Tex.  375.     See  §  1792. 

'^  Robinson  v.  Amateur  Asso.   14   S.  C.  "•   Wing  v.  Cooper,  37  Vt.  169. 

148.  8  "A  deed  of  trust  to  secure  debts  or  in- 

3  See  §  1358.  demnify  sureties  may  be  in  the  following 

*  Code  1884,  §§  2947,  2948.  form,  or  to  the  same  effect :  — 

Where  the  grantor  in  a  trust  deed  stip-  " '  This  deed,  made  the          day  of         , 

nlated  that  "  in  the  event  a  sale  is  made,  I  in  the  year         ,  between         (the  grantor) 

hereby  waive  the  right  of  redemption  given  of    the   one  part,  and         (the   trustee)  of 

me  by  law;  and  in  the  event  a  sale  is  made  the  other  part,   witnesseth  :    that  the  said 

the  said  grantee  agrees,  in  consideration  of  (the  grantor)  doth  (or  do)  grant  unto 

the  waiving  of  the  right  of  redemption,  to  the   said           (the   trustee)    the    following 

make  the  land  bring  as  much  as  $4,000,"  it  property  (here  describe  it).     In  trust  to  se- 

was  held  that  the  grantee  was  not  bound  to  cure  (here  describe  the  debts  to  be  secured 

make  the  property  bring  that  price  unless  or  the  sureties  to  be  iudemnitied,  and  insert 

he  made   the  sale  free  from  the  equity  of  covenants  or    other  provisions  the  parties 

redemption.     Ordway  i;.  White,  3  Lea,  537.  may  agree  upon).  Witness  the  following  sig- 

^  Frierson  v,  Blanton,  57  Tenn.  272.  natures  and  seals  (or  signature  and  seal).'  " 

«  Rob  rtson   v.  Paul,  16  Tex.  472;  Mor-  Code  1887,  §  2441. 

642 


POWER   OF   SALE   MORTGAGES   AND   TRUST   DEEDS.      [§  1762. 

thereof,  by  the  grantor,  sell  the  property  conveyed  by  the  deed,  or 
so  much  thereof  as  may  be  necessary,  at  public  auction,  for  cash, 
having  first  given  reasonable  notice  of  the  time  and  place  of  sale, 
and  shall  apply  the  proceeds  of  sale,  first,  to  the  payment  of  ex- 
penses attending  the  execution  of  the  trust,  including  a  commission 
to  the  trustee  of  five  per  cent,  on  the  first  three  hundred  dollars, 
and  two  per  cent,  on  the  residue  of  the  proceeds,  and  then  pro  rata 
(or  in  the  order  of  priority,  if  any,  prescribed  by  the  deed)  to  the 
payment  of  the  debts  secured  and  the  indemnity  of  the  sureties  in- 
demnified by  the  deed,  and  shall  pay  the  surplus,  if  any,  to  the 
grantor,  his  heirs,  personal  representatives,  or  assigns.^ 

1762.  "West  Virginia.^  —  The  form  of  trust  deed  is  the  same  as 
that  prescribed  by  the  Code  of  Virginia.  The  trustee  in  any  such 
deed  shall,  whenever  required  by  any  creditor  secured  or  any  surety 
indemnified  by  the  deed,  or  the  personal  representative  of  any  such 
creditor  or  surety,  after  the  debt  due  to  such  creditor,  or  for  which 
such  surety  may  be  liable,  shall  have  become  payable  and  default 
shall  have  been  made  in  the  payment  thereof,  or  any  part  thereof, 
by  the  grantor,  sell  the  property  conveyed  by  the  deed,  or  so  much 
thereof  as  may  be  necessary,  at  public  auction,  upon  such  terms  as 
are  mentioned  in  said  deed,  and,  if  no  terms  are  therein  mentioned, 
then  upon  the  following  terms,  to  wit:  If  the  property  to  be  sold 
be  real  estate,  one  third  of  the  purchase-money  cash  in  hand,  one 
third  thereof  with  interest  in  one  year,  and  the  residue  thereof  with 
interest  in  two  years,  from  the  day  of  sale,  taking  from  the  pur- 
chaser his  notes,  with  good  security,  for  the  deferred  payments,  and 
retaining  the  legal  title  as  further  security  ;  and  if  the  property  to 
be  sold  be  personal  estate,  then  for  cash,  having  first  given  notice  of 
such  sale  as  hereinafter  prescribed ;  and  shall  apply  the  proceeds  of 
sale,  first,  to  the  payment  of  expenses  attending  the  execution  of  the 
trust,  including  a  commission  to  the  trustee  of  five  per  centum  on 
the  first  three  hundred  dollars,  and  two  per  centum  on  the  residue 
of  the  proceeds,  then  pro  rata  (or  in  the  order  of  priority,  if  any, 
prescribed  by  the  deed)  to  the  payment  of  the  debts  secured  and 
the  indemnity  of  the  sureties  indemnified  by  the  deed  ;  and  shall 
pay  the  surplus,  if  any,  to  the  grantor,  his  heirs,  personal  repre- 
sentatives, or  assigns.^ 

Every  such  notice  of  sale  shall  show  the  following  particulars : 
1.  The  time  and  place  of  sale;  2.  The  names  of  the  parties  to  the 
deed  under  which  it  will  be  made ;    3.  The  date  of  the  deed  ;    4. 

1  Code  1887,  §  2442.  ^  The  trustee  mugt  give  a   bond  before 

2  Code  1891,  eh.  72,  §§  5-7.  selling. 

643 


§  1763.]  STATUTORY   PROVISIONS   RELATING   TO 

The  office  and  book  in  which  it  is  recorded  ;  5.  The  quantity  and 
description  of  the  hmd  or  other  property,  or  both,  conveyed  thereby  ; 
6.  The  terms  of  the  sale.^ 

When  any  property  is  about  to  be  sold  under  a  deed  of  trust,  the 
trustee  shall,  unless  it  be  otherwise  provided  in  the  deed  of  trust, 
or  in  the  opinion  of  the  trustee  the  property  to  be  sold  be  of  less 
value  than  three  hundred  dollars,  publish  a  notice  of  such  sale  in 
some  newspaper  published  in  the  county,  if  there  be  one  which  will 
publish  the  notice  at  the  rates  prescribed  by  la^v.  Such  notice  shall 
be  published  at  least  once  a  week  for  four  successive  weeks  preced- 
ing the  day  of  sale,  and  a  copy  of  such  notice  shall  be  posted  at  the 
front  door  of  the  conrt-house  for  a  like  period  ;  but  if  there  be  no 
newspaper  published  in  the  county,  or  if  there  be  none  that  will 
publish  such  notice  at  the  rates  prescribed  by  law,  or  if,  in  the 
opinion  of  the  trustee,  the  property  be  of  less  value  than  three 
hundred  dollars,  such  a  notice  of  sale  shall  be  posted  at  least  thirty 
days  prior  thereto  on  the  front  door  of  the  court-house  of  the  county 
in  which  the  property  to  be  sold  is,  and  at  three  other  public  places 
at  least  in  the  county,  one  of  which  shall  be  as  near  the  premises 
to  be  sold  (in  case  the  sale  be  of  real  estate)  as  practicable  ;  and  in 
all  cases,  whether  the  notice  be  published  or  not,  a  copy  of  such 
notice  shall  be  served  on  the  grantor  in  the  deed,  or  his  agent  or 
personal  representative,  if  he  or  they  be  within  the  county,  at  least 
twenty  days  prior  to  the  sale.^ 

1763.  Wisconsin.^ — A  mortgage  containing  a  power  of  sale 
may  upon  default  be  foreclosed  by  advertisement :  provided  no 
action  has  been  instituted  at  law  to  recover  the  debt,  or  if  instituted 
that  it  has  been  discontinued,  or  that  an  execution  upon  the  judg- 
ment has  been  returned  unsatisfied  in  whole  or  in  part ;  and  pro- 
vided the  mortgage  containing  such  power  has  been  duly  recorded, 
and  that  all  assignments  of  it  have  been  recorded.*  If  the  mort- 
gage be  payable  by  instalments,  each  instalment  after  the  first  is 
deemed  a  separate  mortgage,  and  may  be  foreclosed  for  each  instal- 
ment as  if  a  separate  mortgage  were  given  for  each. 

Notice  is  given  by  publishing  the  same  for  six  successive  weeks, 
at  least  once  a  week,  in  a  newspaper  printed  in  the  county  where 
the  premises  or  some  part  of  them  are  situated,  if  there  be  one  ; 

1  Where  the  debtor  conveys  all  his  prop-  This  statute  does  not  prevent  a  foreclosure 

erty  to  a  trustee  for  the  benefit  of  his  cred-  by  bill.     Byron  v.  May,  2  Finn.  443. 

itors,  the  trustee  must  settle   his  accounts  *  This  provision   does  not  apply  to   an 

before  a  commissioner.  executor  or  administrator.     Hayes  r.  Frey, 

-  Code  1887,  ch.  72,  §§  6,7.  54  Wis.  503,  11  N.  W.  Rep.  695. 

3  Annot  Stats.  1889,  ch.  152,  §§  3523-3543. 

644 


POWER   OF   SALE   MORTGAGES   AND   TRUST   DEEDS.        [§  1763. 

otherwise  in  a  newspaper  published  in  an  adjoining  county,  if  there 
be  one ;  but  if  not,  then  in  a  paper  published  at  the  seat  of  govern- 
ment. The  notice  must  specify  the  names  of  the  mortgagor  and  of 
the  mortgagee,  and  of  the  assignee  if  any  ;  the  date  of  the  mort- 
gage and  when  recorded  ;  the  amount  claimed  to  be  due  at  the  date 
of  the  notice ;  a  description  of  the  premises  substantially  as  in  the 
mortgage  ;  and  the  time  and  place  of  sale.^ 

The  sale  must  be  at  public  auction,  between  the  hour  of  nine 
o'clock  in  the  forenoon  and  the  setting  of  the  sun,  in  the  county  in 
which  the  premises  or  some  part  of  them  are  situated,  and  must  be 
made  by  the  person  appointed  for  that  purpose  in  the  mortgage,  or 
by  the  sheriff  or  his  deput}^  to  the  highest  bidder.  The  sale  may 
be  postponed  from  time  to  time  by  inserting  a  notice  of  such  post- 
ponement, as  soon  as  practicable,  in  the  newspaper  in  which  the 
original  advertisement  was  published,  and  continuing  such  publica- 
tion to  the  time  of  sale.  If  the  premises  consist  of  distinct  farms 
or  lots,  they  must  be  sold  separately ;  and  no  more  shall  be  sold  than 
may  be  necessary  to  satisfy  the  amount  due,  with  interest  and  costs. 
The  mortgagee,  his  assigns,  or  his  or  their  representatives,  may 
fairly  and  in  good  faith  purchase  the  premises,  or  any  part  thereof, 
at  the  sale. 

The  officer  or  other  person  making  the  sale  gives  the  purchaser  a 
certificate  in  writing  under  seal,  setting  forth  a  description  of  each 
tract  sold,  the  sum  paid  therefor,  and  the  time  when  the  purchaser 
will  be  entitled  to  a  deed,  unless  redeemed  ;  ^  and  within  ten  days 
files  in  the  office  where  the  deed  is  recorded  a  duplicate  of  such  cer- 
tificate. The  premises  may  be  redeemed  within  one  year  after  such 
sale,  on  payment  of  the  sum  bid,  with  interest  at  the  rate  of  ten  per 
centum  per  annum  from  the  time  of  sale  ;  but  the  mortgagor  may 
retain  fall  possession  until  the  title  vests  absolutely  in  the  pur- 
chaser. If  not  redeemed,  the  officer,  or  some  person  appointed  by 
the  court  for  the  purpose,  executes  a  deed  of  the  premises  to  the 
purchaser,  or  to  the  assignee  of  the  certificate.^  Any  surplus  re- 
maining after  satisfying  the  mortgage  is  paid  to  the  mortgagor  or 
his  assigns. 

The  evidence  of  sale  may  be  perpetuated  by  an  affidavit  of  the 
publication  of  -the  notice  to  be  made  by  the  printer,  or  by  some  pei-- 

1  The  notice  need  not  recite  the  words  fice  has  expired,  or  by  his  succegsor  in  office. 
of  the  statute,  that  the  mortgage  "  will  be  Hayes  v.  Frey,  54  Wis.  503,  11  N.  W.  Hep. 
foreclosed   by  sale."     Nau  v.  Brunette,   79     695. 

Wis.  664,  48  N.  W.  Eep.  649.  ^  Failure  to  attach  a  seal  to  the  certificate 

2  The  deed  may  be  executed  by  the  officer  is  not  a  fatal  defect.  Hayes  v.  Frey,  54 
who  made  the  sale,  though  his  term  of  of-     Wis.  503,  11  N.  W.  Rep.  695. 

645 


§  1763.]  STATUTORY   PROVISIONS. 

son  in  his  employ  knowing  the  facts,  and  an  affidavit  of  the  fact  of 
the  sale  to  be  made  by  the  auctioneer,  stating  the  time  and  place  of 
sale,  the  sum  bid,  and  the  name  of  the  purchaser ;  and  such  affi- 
davits, when  recorded,  are  presumptive  evidence  of  the  facts.^  The 
record  of  the  affidavits,  and  of  the  deeds  executed,  pass  the  title, 
and  the  conveyance  is  a  bar  of  all  equity  of  redemption  ;  but  no 
title  accruing  prior  to  the  execution  of  the  mortgage  is  affected. 

A  subsequent  mortgagee  is  entitled  to  the  same  privilege  of  re- 
demption that  the  mortgagor  might  have  had,  or  may  satisfy  the 
prior  mortgage,  and  thereby  acquire  all  the  rights  of  the  prior  mort- 
gagee. 

When  the  premises,  or  any  part  of  them,  are  purchased  by  the 
mortgagee,  his  representatives,  or  his  or  their  assigns,  the  affida- 
vits of  publication,  and  of  the  circumstances  of  sale,  are  evidence 
of  the  sale,  and  of  the  foreclosure  of  the  equity  of  redemption,  with- 
out any  conveyance  being  executed,  in  the  same  manner,  and  with 
like  effect,  as  a  conveyance  executed  by  a  mortgagee  upon  a  sale 
to  a  third  person. 

When  notice  of  the  sale  is  published  in  other  than  the  county 
in  which  the  premises  are  situated,  a  copy  of  such  notice  must  be 
served  at  least  four  weeks  before  the  time  of  sale  on  the  person 
in  possession  of  the  premises,  in  all  cases  where  the  same  are  occu- 
pied ;  and  where  they  are  not  occupied,  then  upon  the  mortgagor, 
his  heirs  or  personal  representatives,  if  he  or  they  reside  in  the 
county  where  such  premises  lie.  Proof  of  the  service  of  such  no- 
tice may  be  made,  certified,  and  recorded  in  the  same  manner,  and 
with  the  like  effect,  as  proof  of  the  publication  of  a  notice  of  sale 
under  a  mortgage. 

1  Bond  V.  Carroll,  71  Wis.  347,  37  N.  W.  Rep.  91. 

646 


CHAPTER  XL. 


POWER  OF  SALE  MORTGAGES  AND  TRUST  DEEDS. 


I.  The  nature  and  use  of  powers  of  sale, 
1764-1772. 
II.  The  power  of  sale    is  a  cumulative 
remedy,  1773-1776. 

III.  Construction  of  power,  1777-1791. 

IV.  Revocation     or    suspension    of     the 

power,  1792-1800. 
V.  When  the  exercise  of  the  power  may 
be  enjoined,  1801-1820. 
VI.  Personal  notice  of  sale,  1821-1826. 
VII.  Publication  of  notice,  1827-1838. 
VIII.  What    the    notice    should    contain, 
1839-1856. 


IX.  Sale  in  parcels,  18.57-1860. 
X.  Conduct  of  sale,  terras,  and  adjourn- 
ment, 1861-187.5. 
XI.  Who   may   purchase  at   sale  under 
power,  1876-1888. 
XII.  The  deed  and  title,  1889-1903. 

XIII.  The  affidavit,  190-t,  1905. 

XIV.  Setting  aside  and  waiving  sale,  1906- 

1922. 
XV.  Costs  and  expenses,  1923-1926. 
XVI.  The  surplus,  1927-1940. 


I.   The  Nature  and  Use  of  Powers  of  Sale. 

1764.  In  general.  —  The  delay  and  expense  incident  to  a  fore- 
closure and  sale  in  equity  have  brought  power  of  sale  mortgages 
and  trust  deeds  into  general  favor  both  in  England  and  America; 
and  although  their  general  use  is  now  confined  to  a  part  only  of 
our  States,  the  same  influences  which  have  already  led  to  their  par- 
tial axloption  and  use  are  likely  to  lead  to  their  general  use  every- 
where at  an  early  day.i  It  is  true  that  recent  codes  and  statutes 
have  done  something  to  simplify  the  remedy  by  bill  in  equity ;  but 
at  best  the  process  of  foreclosure  by  suit  is  cumbersome  and  expen- 
sive as  compared  with  the  remedy  afforded  by  a  power  of  sale. 
Preliminary  to  a  bill  in  equity,  or  to  a  petition  or  suit  authorized 
by  codes  which  adopt  a  bill  in  equity  as  the  basis  of  the  proceed- 
ing, is  an  investigation  to  ascertain  who  have  become  interested  in 
the  property  since  the  taking  of  the  mortgage.  All  such  parties, 
sometimes  quite  numerous,  must  be  made  parties  to  the  suit  and 
must  be  served  with  process,  else  the  foreclosure  will  not  be  com- 
plete. The  decree  of  sale  may  be  rendered  only  after  a  long  delay. 
The  sale  is  made  through  a  sheriff  or  ofecer  of  the  court,  who 
must  report  his  proceedings  to  the  court.  Orders  must  be  obtained 
for  the  confirmation  of  the  sale,  and  perhaps  for  the  distribution  of 
the  proceeds  of    it.     There  may  also  be  attendant  references  to 

^  First  Nat.  Bank  v.  Mining  Co.  8  Mont.  32,  53,  19  Pac.  Rep.  403,  quoting  text. 

647 


§  1765.]       POWER   OF   SALE  MORTGAGES   AND   TRUST   DEEDS. 

ascertain  the  amount  of  the  mortgage  debt,  or  to  determine  whether 
the  whole  property  shall  be  sold  together  or  in  separate  parcels ;  or 
to  determine  in  what  order  different  parcels  shall  be  sold  in  conse- 
quence of  the  equities  of  subsequent  purchasers :  or,  after  the  sale 
is  made,  to  determine  whether  the  title  is  such  that  the  sale  can  be 
enforced  against  the  purchaser.  It  is  true  that  all  these  proceed- 
ings are  designed  for  the  protection  of  the  mortgagor  and  others 
who  may  be  interested  in  the  property  ;  but  while  such  protection 
is  occasionally  not  without  its  use,  in  almost  all  cases  the  parties  in- 
terested in  the  property  are  equally  well  protected  by  the  remedy 
out  of  court  afforded  by  a  power  of  sale,  and,  as  will  be  presently 
noticed,  when  protection  is  needed  in  exceptional  cases  the  courts 
can  be  effectually  appealed  to. 

A  power  of  sale,  whether  vested  in  the  creditor  himself  or  in  a 
trustee,  affords  a  prompt  and  effectual  security.  Although  it  may 
press  harder  upon  the  debtor  in  point  of  time,  it  is  not  without  its 
advantages  to  him.  The  delay  and  expense  incident  to  a  foreclosure 
suit  he  is  obliged  to  pay  for  in  some  way,  and  it  is  generally  in  the 
way  of  paying  a  higher  rate  of  interest  for  the  loan.^  It  is  prob- 
ably safe  to  saj'  that  in  its  practical  operation  the  power  of  sale  is 
not  used  to  oppress  or  injure  the  debtor  more  frequently  than  is  the 
process  of  foreclosure  by  suit.  There  is  undoubtedly  some  preju- 
dice against  this  form  of  security  still  remaining.  This  is  more 
especially  the  case  where  it  is  little  used,  and  in  those  parts  of  the 
country  where  capital  is  scarce  and  the  difficulty  of  obtaining  large 
sums  of  money  without  delay  is  a  serious  one.  But  both  the  fan- 
cied and  real  objections  to  powers  of  sale  in  mortgages  and  trust 
deeds  are  likel}^  soon  to  give  wa}^  under  the  real  advantages  they 
afford  to  both  the  debtor  and  creditor ;  and  their  general  adoption, 
to  the  exclusion  of  other  forms  of  security  upon  real  property,  may 
be  looked  for  at  an  early  day. 

1765.  In  some  of  the  early  cases  both  in  England  and  Amer- 
ica, the  validity  of  powers  of  sale  in  mortgages  was  much  ques- 
tioned. The  case  of  Croft  v.  Powell^  was  for  a  considerable  time 
considered  as  authority  against  mortgages  of  this  description,  al- 
though their  validity  was  not  involved  in  the  decision.  This  was  a 
mortgage  made  by  a  dee|^  and  separate  defeasance,  which  provided 
that,  if  the  loan  was  not  paid  within  the  time  agreed,  then  the  mort- 

1  First  Nat.  Bank  v.  Mining  Co.  8  Mont,  duced  "  allowing  the  mortgagee  to  repay 
32,  19  Pac.  Rep.  403,  quoting  text.  himself  by  sale  of  the  mortgaged  premises, 

2  2   Comyn,   603   (1738).     In  The  King  adds,  "but  a  court  of  equity  would,  I  be- 
V.  Edington,  1  East,  288  (1801),  Lord  Ken-  lieve,  controlthe  exercise  of  that  power." 
von,  speaking  of  a  clause  "  sometimes  intro- 

648 


THE   NATURE   AND   USE   OF   POWERS   OF   SALE.  [§  1765. 

gagee  should  mortgage  or  absolutely  sell  the  same  lands  free  from  re- 
demption, and  out  of  the  money  raised  by  such  mortgage  or  sale  pay 
the  loan  and  interest,  and  be  accountable  for  the  overplus  to  the 
mortgagor  or  his  heirs.  The  money  not  being  paid  at  the  time, 
the  mortgagee  agreed  to  convey  the  estate  to  a  third  person,  and  in 
the  agreement  and  conveyance  an  exception  was  made,  and  the  de- 
feasance was  mentioned.  For  this  reason  it  was  considered  that  it 
was  not  the  intention  of  the  mortgagee  to  give  the  purcbaser  an 
absolute  and  indefeasible  estate,  for  it  was  not  conveyed  to  him 
absolutely  and  free  from  the  equity  of  redemption,  but  subject  to 
the  defeasance. 

When  Mr.  Powell  wrote  his  Treatise  on  Mortgages^  he  consid- 
ered  the  validity  of  powers  of  sale  "  of  too  doubtful  a  complexion 
to  be  relied  upon  as  the  source  of  an  irredeemable  title."  Even  so 
late  as  1825,  although  such  powers  had  been  sustained  in  the  few 
cases  in  which  the}^  had  been  the  subject  of  adjudications  during 
the  early  part  of  the  present  century.  Lord  Eldon,  then  Chancellor 
of  England,  while  not  denying  the  validity  of  a  mortgage  in  this 
form,  strongly  objected  to  it,  saying:  "  Here  the  mortgagee  is  him- 
self made  the  trustee.  It  would  have  been  more  prudent  for  him 
not  to  have  taken  upon  himself  that  character.  But  it  is  too  much 
to  say  that  if  the  one  party  has  so  much  confidence  in  the  other  as 
to  accede  to  such  an  arrangement,  this  court  is  for  that  reason  to 
impeach  the  transaction.  It  is  next  provided  that  if  the  mortgagor 
shall  make  default  in  paying  the  sum  stated  at  the  appointed  time,  the 
mortgagee  may  make  sale  and  absolutely  .dispose  of  the  premises 
conveyed  to  him.  This  is  an  extremely  strong  clause;  but  perhaps 
it  may  be  one  of  the  many  new  improvements  in  conveyancing  which 
make  conveyancing  so  different  from  what  it  was  when  I  was  in 
practice  in  that  part  of  law."  Here  he  inquired  of  Mr.  Sugden  how 
the  practice  was  in  that  respect.  Mr.  Sugden  admitted  that  the  clause 
was  usually  inserted  in  deeds  like  the  present.     Lord  Eldon :  "  How 

1  Powell  on  Mortg.  19.  the  common  mode  of  mortgaging.  .  .  .  The 
"  Their  validity,"  says  Mr.  Coventry,  evil  of  the  former  mode  of  mortgaging  is, 
"was  at  first  much  questioned;  and  when  that  the  mortgagee,  in  proceeding  for  the 
the  doubts  surrounding  their  introduction  recovery  of  his  money,  is  liable  to  be  de- 
were  removed,  they  were  for  a  considerable  layed  for  an  indefinite  time  in  chancery, 
time,  and  are  even  now  in  some  degree,  The  new  mode  is  framed  with  a  view  to  a 
viewed  as  a  harsh  measure,  and  only  to  be  settlement  out  of  court,  so  that  a  large  por- 
nscd  wliere  the  money  lent  approaches  very  tion  of  chancery  practice  will  be  abstracted 
nearly  the  value  of  the  estate  mortgaged,  or  from  court  if  this  mode  of  mortgaging  be- 
where  the  interest  is  likely  to  run  in  arrear.  comes,  as  it  bids  fair  to  do,  the  only  acknow- 
A  mortgage  of  this  description  is  certainly  ledged  mode  of  mortgaging  in  general  use." 
a  prompt,  powerful  security  compared  with  Mortg.  Prac.  p.  150. 

649 


§  1766.]        POWER   OF   SALE   MORTGAGES   AND   TRUST   DEEDS. 

can  it  be  right  that  such  a  clause  should  be  introduced  into  a  deed 
under  which  the  party  is  a  trustee  for  himself?  Then  there  is  a 
clause  that  it  shall  not  be  necessary  for  the  purchaser  to  inquire 
whether  a  sale  was  proper,  etc.  Here,  too,  it  must  be  recollected 
that  this  is  a  clause  to  be  acted  upon,  not  by  a  middle  person,  who 
is  to  do  his  duty  between  the  cestuis  que  trust,  but  the  mortgagee 
is  himself  made  trustee  to  do  all  these  acts.  Upon  the  whole,  I 
must  say  that  this  deed  seems  to  me  of  a  very  extraordinary  kind, 
and  that  there  are  clauses  in  it  upon  which  it  would  be  difficult  to 
induce  a  court  of  equity  to  act."  ^  It  seems,  however,  that  his  ob- 
servations were  made  without  deliberation,  and  were  not  called  for 
in  the  case  before  him.  By  general  accord,  power  of  sale  mortgages 
were  about  this  time  adopted  into  general  use  in  England,  and  they 
have  always  been  fully  sustained  and  approved.^  At  the  present 
time  every  mortgage  has  a  power  of  sale  ;  for  when  not  inserted 
in  the  deed,  as  is  usually  the  case,  a  power  of  sale  is  supplied  by 
statute.^ 

1766.  The  powers  generally  inserted  in  mortgages  used  in 
England  are  much  more  complete,  and  give  a  more  speedy  remedy 
after  a  default  than  the  statute  power,  so  that  it  is  now  the  general 
understanding  that  there  must  be  a  power  of  sale,  else  the  money 
is  hardly  obtainable  vipon  the  mortgage.  For  these  reasons  it  is 
now  held,  contrary  to  the  opinion  formerly  entertained,^  that  trus- 
tees, under  a  direction  in  a  will  to  raise  money  by  mortgage,  are 
authorized  to  give  the  mortgagee  a  power  of  sale  in  case  of  default 
in  repayment  of  the  money  or  the  interest  of  it.  In  a  recent  case  ^ 
Sir  R.  Malins,  V.  C,  said  :  "  I  am  of  opinion  that  a  power  of  sale 

1  Roberts   v.  Bozon,   Chan.  (Feb.    1825)  used  to  be  thirty  or  forty  years  ago.    But  it 

MS.   cited   iu   Coventry's    Prac.    Mort.   p.  is  by  no  means  an  universal  practice;    and 

150;    1    Powell's   Mortg.    (Am.   ed.)    9   a,  many  mortgages  maybe  seen  at  this  day 

note.  in  which  no  power  of  sale  is  introduced." 

-  Ashton  V.  Corrigan,  L.  R.  13  Eq.  76  But  waiving  this,   he   held   that  a  special 

(1871);   Hermann  i>.  Hodges,  L.  R.  16  Eq.  power  to  a  trustee  to  mortgage  does  not 

18  (1872).  give  him  authority  to  sell,  and  a  fortiori 

^  See  §  1722.  does  not  give  him  a  right  to  give  another 

*  In  Sanders  v.  Richards,  2  Coll.  568,  it  person  power  to  sell. 
was  held  that  an  executor  had  no  right  to  ^  In  re  Chawner's  Will,  L.  R.  8  Eq.  569 
give  a  mortgage  with  a  power  of  sale.  (1869).  In  Bridges  v.  Longman,  24  Beav. 
This  is  overruled  in  the  cases  cited  in  the  27,  the  Master  of  the  Rolls  held  that  a 
following  note.  In  Clarke  v.  The  Royal  power  of  sale  is  incident  to  a  power  to  raise 
Panopticon,  4  Drew.  26,  Vice-Chancellor  money  by  mortgage.  See,  also,  to  same 
Kindersley  remarked :  "It  is  said  that  the  effect,  Selby  v.  Cooling,  23  Beav.  418; 
practice  of  conveyancers  is  to  treat  a  power  Russell  v.  Plaice,  18  Beav.  21  ;  Cook  v. 
of  sale  as  a  necessary  incident  to  a  mort-  Dawson,  29  Beav.  123,  128;  Vane  v.  Rig- 
gage;  to  introduce  it  universally.  ...  I  den,  L.  R.  5  Ch.  663;  Cruikshank  v.  Duf- 
admit  that  it  is  much  more  frequent  than  it  fin,  L.  R.  13  Eq.  555,  560. 

650 


THE   NATURE   AND   USE   OF   POWERS   OF  SALE.  [§  1767. 

is  a  necessary  incident  to  a  mortgage,  and  that,  when  a  testator 
says  that  a  sum  of  money  is  to  be  raised  by  mortgage,  he  means  it 
to  be  raised  in  the  way  in  which  money  is  ordinarily  raised  by  mort- 
gage, and  therefore  that  the  mortgage  may  contain  what  mort- 
gages in  general  do  contain,  namely,  a  power  of  sale."  This  is 
further  illustrated  by  another  case  where  a  mortgage  was  made  by 
a  deposit  of  title  deeds,  with  a  written  agreement  by  the  mortgagor 
"  to  execute  a  mortgage  "  when  called  upon  to  do  so.^  He  then 
sold  and  conveyed  the  estate  subject  to  the  mortgage  ;  and  after- 
wards executed  a  power  of  sale  mortgage  to  his  mortgagee,  who  sub- 
sequently sold  the  estate  under  the  power.  It  was  held  that  the 
purchaser  was  bound  by  the  power  of  sale  ;  the  Master  of  the  Rolls 
saying  the  "  mortgage  very  properly  contains  a  power  of  sale." 

1767.  It  is  not  possible  to  say  when  powers  of  sale  in  mort- 
gages were  first  used  in  this  country ;  but  it  appears  from  a 
statute  enacted  in  New  York  in  the  year  1774  ^  that  they  were  al- 
ready in  use  at  that  time.  The  provisions  of  that  statute  were  re- 
enacted  in  the  first  revision  of  the  statutes  of  that  State,  and  under 
various  modifications  the}''  have  been  continued  to  the  present  day. 
In  Massachusetts,  in  1826,  Chief  Justice  Parker^  said  that  a  power 
to  sell  executed  to  one  who  relies  upon  such  power,  and  expects  and 
intends  to  purchase  an  absolute  estate,  would  without  doubt  pass 
an  unconditional  estate  to  the  purchaser ;  yet  he  says  "  this  form  of 
conveyance  is  rare  in  this  country ; "  and  he  cites  the  case  of  Croft 
V.  Powell^  decided  almost  a  hundred  j'ears  before,  to  the  effect  that 
if  the  purchaser  knows  the  original  nature  of  the  transaction,  and 
appears  not  to  have  purchased  wholly  without  reference  to  the  con- 
ditional character  of  the  title,  he  will  be  compelled  in  equity  to 
surrender  it  on  receiving  the  money  he  has  advanced. 

In  some  early  cases  it  had  been  contended  that  the  power  of  sale 
so  altered  the  character  of  the  conveyance  as  to  deprive  it  of  the 
qualities  of  a  mortgage ;  but  in  Eaton  v.  Whiting  it  was  said  that 
without  doubt  the  power  while  unexecuted  left  the  estate  as  it  would 
have  been  if  no  power  had  been  given.* 

^  Leigh  V.  Lloyd,  35  Beav.  455.  also,  as  to  the  early  use  of  powers  of  sale 

2  Act  of    19   March,    1774.      From    this  in  New  York,  Bergen  v.  Bennett,  1  Caines 

statute  it  appears   that  doubts   were  then  Cas.   1,   3,  2  Am.   Dec.  281 ;    Doolittle  v. 

entertained   whether    sales   under    powers,  Lewis,  7  Johns.  Ch.  45,  11  Am.  Dec.  389 ; 

by  the   mere   act  of  the  person    to    whom  Slee  v.  Manhattan    Co.   1    Paige,   48,  69  ; 

the  power  was  granted,  would  extinguish  Lawrence  v.  Farmers'  Loan  &  Trust  Co.  13 

the  equity  of  redemption.   After  reciting  the  N.  Y.  200. 

inconvenience  of  allowing  them  to  be  im-  '  In  Eaton  v.  Whiting,  3  Pick.  484. 

paired,  it  declares  that  the  rights  of  bona  *  Taylor   v.  Chowning,    3   Leigh,    654  ; 

fide  purchasers  shall  not  be  debated.     See,  Turner  v.  Bouchell,  3  Har.  &  J.  99. 

651 


§  1768.]        POWER   OF  SALE   MORTGAGES   AND   TRUST   DEEDS. 

Fifty  years  ago  power  of  sale  mortgages  were  not  in  general  use 
anywhere  in  this  country  ;  and  although  considerable  use  was  made 
of  them  at  an  earlier  time  than  any  corresponding  use  was  made  of 
them  in  England,^  they  have  been  adopted  in  the  latter  country,  to 
the  exclusion  of  other  forms  of  security,  while  they  have  not  been 
so  adopted  here.  Within  the  past  half  century,  however,  the  use 
of  them  has  rapidly  extended,  so  that  in  several  States  any  other 
form  of  mortgage  is  exceptional.  The  validity  of  these  powers  of 
sale  is  everywhere  recognized,  and  the  use  of  tbem,  either  in  mort- 
gages or  in  trust  deeds,  is  becoming  general.^  One  of  the  latest 
decisions  on  the  validity  of  mortgages  in  this  form  is  one  of  the 
best,  because  it  declares  such  validity  to  be  grounded  in  the  common 
law  right  of  all  men  to  contract  for  the  sale  of  their  land  in  such 
form  as  they  may  deem  best.  "  We  are  unable  to  see  upon  what 
ground,"  say  the  Supreme  Court  of  New  Hampshire,  "  in  the  absence 
of  legislative  prohibition,  the  court  can  put  a  restriction  upon  the 
freedom  of  the  citizen  to  contract  for  the  sale  of  his  land  upon  terms 
and  in  a  mode  stipulated  in  a  mortgage,  any  more  than  upon  his 
liberty  to  contract  for  its  sale  in  any  other  way,  or  by  stipulations 
contained  in  any  other  instrument."^ 

1768.  The  use  of  power  of  sale  mortgages,  however,  has  not 
yet  become  so  universal  here  as  to  lead  to  their  being  regarded 
generally  as  a  necessary  incident  of  a  mortgage.  In  New  York  it 
is  true  that  as  early  as  1823  Chancellor  Kent  decided  that  a  powder 
of  attorney  to  execute  a  mortgage  authorized  the  making  of  it  with 
a  power  of  sale,  because  such  a  power  was  then  one  of  the  customary 
and  lawful  remedies  given  to  a  mortgagee  ;  that  it  had  become  an 
incident  to  the  power  to  mortgage,  and  was  of  course  included  under 
the  authority  to  mortgage,  unless  specially  excluded.^  But  if  else- 
where the  usage  has  become  so  established  as  to  warrant  a  similar 
declaration,  the  question  has  not  since  been  presented  to  the  courts 
for  judicial  determination.  In  Massachusetts,  where  the  use  of  this 
form  is  now  more  nearly  universal,  probably,  than  in  any  other  part 
of  the  country,  it  was  held,  in  1858,  that  a  stipulation  "  to  give 
a  mortgage"  was  complied  with  by  giving  one  without  a  power  of 

1  In  Jackson  v.  Henry,  10  Johns.  185,  man  r.  Devereux,  63  N.  C.  624,  628 ;  Mitch- 
196,  6  Am.  Dec.  328  (1813),  a  case  upon  a  ell  v.  Bogan,  11  Rich.  L.  686;  Longwith 
power  of  sale  mortgage,  Chief  Justice  Kent  v.  Butler,  8  111.  32 ;  Kinsley  v.  Ames,  2  Met. 
remarked:  "  There  is  no  case  precisely  like  29;  Lydston  r.  Powell,  101  Mass.  77. 

this   in  the  English  books,   because   these  ^  Very  v.  Russell,  65  N.  H.  646,  23  Atl. 

powers  are  not  in  use  in  Great  Britain."  Rep.  522,  per  Foster,  J.     And  see  Webb  v. 

2  Turner    v.    Johnson,    10    Ohio,    204;  Lewis,  45  Minn.  285,  47  N.  W.  Rep.  803. 
Brisbane  v.  Stoughton,  17  Ohio,  482  ;  Hy-  *  Wilson  v.  Troup,  7  Johns.  Ch.  25. 

652 


THE  NATURE   AND   USE   OF   POWERS   OF   SALE.  [§  1769. 

sale ;  and  that  a  power  of  sale  was  not  then  a  usual  accompaniment 
of  a  mortgage.!  Since  that  time,  however,  there  can  be  no  doubt 
that  a  power  of  sale  has  become,  not  merely  a  usual  accompaniment 
of  a  mortgage,  but  almost  an  invariable  one  ;  and  it  may  be  antici- 
pated that,  when  the  occasion  arises,  the  courts  will  hold,  as  have 
the  courts  in  England,  that  a  power  of  sale  is  a  necessary  incident 
to  a  mortgage. 

Although  in  several  States  a  mortgage  is  by  statute  or  judicial 
interpretation  declared  to  be  a  mere  security  for  the  payment  of  a 
debt,  and  not  a  conveyance  of  the  legal  title,  yet  this  view  of  the 
nature  of  the  security  does  not  in  any  way  interfere  with  or  impair 
the  doctrine  of  powers  to  sell.^ 

1769.  Deeds  of  trust,  as  has  already  been  noticed,  are  in  legal 
effect  mortgages.^  Where  a  mortgage  is  regarded,  in  accordance 
with  the  common  law  doctrine,  as  a  conveyance  of  the  legal  estate, 
a  deed  of  trust  is  of  course  none  the  less  a  conveyance  of  the  legal 
estate;^  the  only  difference  of  opinion  on  this  point  is,  whether  in 
those  States  in  which  a  mortgage  is  regarded  as  a  mere  lien,  and  not 
a  conveyance  of  the  legal  estate,  a  deed  of  trust  shall  be  held  to 
vest  the  legal  estate  in  the  trustees.  Generally  a  deed  of  trust  is  in 
this  respect  held  to  have  only  the  same  effect  as  a  mortgage  ;  such 
being  the  decision  in  lowa,^  Nebraska,^  Kansas,^  Nevada,^  and 
Texas.^  But,  on  the  other  hand,  in  California,  Colorado,  and 
Florida,  it  is  held  that,  although  a  mortgage  does  not  vest  the  legal 
estate  in  the  mortgagee,  a  deed  of  trust  is  a  conveyance  which  does 

1  Capron  v.  Attleborough  Bank,  11  Gray,        In  Louisiana,  a  deed  of  trust  will  not  be 

492 ;    Piatt  v.   McClure,  3    Woodb.   &   M.  given  the  effect  of  an  act  of  mortgage  bind- 

151-  ing   on    third   persons,   although    properly 

-  Calloway  v.  People's  Bank,  54  Ga.  441,  recorded,  and  although  it  might  be  consid- 

•*49-  ered    between   the   parties   as   intended   by 

3  §62;  Shillaber  v.  Robiuson,  97  U.  S.  them  to  secure  the  payment  of  a  debt  as 

68;    Southern  Pac.    Ry.  Co.    v.  Doyle,  11  therein    mentioned.      A  mortgage  in  this 

Fed.  Rep.  253;    Bartlett  v.    Teah,    1    Mc-  State   must   conform  witii   the  forms  pre- 

Crary,   176,  1    Fed.  Rep.  768;   McLane  i'.  scribed  by  the  local  law  and  customs,  and 

Paschal,  47   Tex.  365,  369  ;    Blackwell  v.  must  announce  clearly  the  purpose  of  the 

Barnett,  52  Tex.  326 ;   De  Wolf  v.  Sprague  act.     Thibodaux  v.  Anderson,  34  La.  Ann. 

Manuf.  Co.  49  Conn.  282.  797. 

*  Newman  iJ.  Jackson,  12  AVheat.  570.  5  Newman    v.    Samuels,    17    Iowa,   528, 

In  Ohio,  under  a  deed  of  trust  as  collat-  535. 
eral  security  or  in   the  nature  of  a  mort-        ^  Webb  v.  Hoselton,  4  Neb.  308,  19  Am. 

gage,  the  grantor  in  possession  retains  the  Rep.  638 ;  Kyger  v.  R^ley,  2  Neb.  20,  28. 
legal  estate,  and   a   subsequent   judgment        ^  Lenox  v.  Reed,  12  Kaus.  223. 
against  him  becomes  a  lieu  upon  the  prop-        »  First  Nat.  Bank   v.   Kreig,    (Nev.)   32 

erty  subject  to  the  mortgage.      Martin  v.  Pac.  Rep.  641. 

Alter,  42  Ohio  St.  94.  9  McLane  v.  Paschal,  47  Tex.  365,  369. 

653 


§  1770.J       POWER   OF   SALE   MORTGAGES   AND   TRUST   DEEDS. 

vest  the  legal  title  in  the  trustee.^  And  in  the  first  named  State 
such  a  deed  is  not  a  mortgage  requiring  judicial  foreclosure.^ 

As  a  general  rule,  upon  the  payment  of  a  deed  of  trust  satisfac- 
tion is  entered  on  the  margin  in  the  same  way  that  it  is  in  the  case 
of  a  mortgage,  and  a  reconveyance  is  not  necessary.  The  statutes 
upon  this  subject,  although  relating  in  terms  to  mortgages,  embrace 
deeds  of  trust. ^  In  like  manner  statutes  relating  to  the  recording 
of  mortgages  embrace  deeds  of  trust  without  special  mention  of 
them.4 

So  substantially  alike  are  a  mortgage  and  a  deed  of  trust  given 
as  security,  that  a  railroad  authorized  to  mortgage  its  property  may 
do  this  by  means  of  a  deed  of  trust ;  ^  and  a  bank  authorized  to 
take  a  mortgage  of  lands  may  take  a  deed  of  trust  for  its  use  to 
trustees.^  "  The  attributes  of  a  deed  of  trust  for  such  purposes," 
says  Mr.  Justice  Walker,  of  Arkansas,  in  a  recent  case,"  "  and  a 
mortgage  with  power  of  sale,  are  the  same :  both  are  intended  as 
securities,  and  in  a  legal  sense  are  mortgages ;  in  both,  the  legal 
title  passes  from  the  grantor ;  but  in  equity  he  is,  before  foreclos- 
ure, considered  the  actual  owner  in  both,  and  as  broadly  in  one  as 
the  other ;  the  grantor  has  the  right  to  redeem,  in  other  words  the 
equity  of  redemption,  which  can  only  be  barred  by  a  valid  execu- 
tion of  the  power." 

1770.  A  deed  of  trust  is  often  preferred  to  a  mortgage  on 
account  of  the  intervention  of  a  disinterested  person  as  trustee.  It 
has  already  been  noticed  that  Lord  Eldon  thought  it  quite  objec- 
tionable that  a  mortgagee  should  himself  be  made  the  trustee  to 
sell  under  the  power.  But  Mr.  Coventry,  after  quoting  his  re- 
marks, expressed  his  own  preference  for  a  mortgage  with  a  power  of 
sale  in  the  mortgagee.  He  thought  the  intervention  of  a  trustee  is 
in  all  cases  a  serious  inconvenience ;  and  that,  even  if  he  does  not 
become  hostile  to  the  creditor,  he  may,  by  his  inexperience  or 
squeamishness,  subject  him  to  much  trouble  ;  and  he  recommended 

1  Soutter  V.  Miller,  15  Fla.  625.  And  397.  Co«fra,  Wilkins  r.  Wright,  6  McLean, 
see  authorities  cited  by  Judge    Dillon  in    340. 

2  Am.  L.  Keg.  (N.  S.)  655;  Bateman  v.  *  Fogarty  v.  Sawyer,  23  Cal.  570;  Ma- 
Burr,  57  Cal.  480 ;  Grant  v.  Burr,  54  Cal.  gee  v.  Carpenter,  4  Ala.  469.  See  further 
298;  Stephens  v.  Clay,  17  Colo.  489,30  Pac.  on  this  subject  an  article  by  Judge  Dillon,  2 
Rep.  42.  Am.  L.  Reg.  (N.  S.)  641 ;  Wilkins  v.  Wright, 

2  Grant  t'.  Burr, -54  Cal.  298;  Koch  v.  6  McLean,  340;  Bank  of  Commerce  y.  Lan- 
Briggs,  14  Cal.  256,  73  Am.  Dec.  651.  ahan,  45  Md.  396;    Woodruff  v.  Robb,  19 

3  Ingle  V.   Culbertson,    43    Iowa,    265;     Ohio,  212. 

Woodruff  r.  Robb,  19  Ohio,  212;  Smith  v.         6  Wright  v.  Bundy,  11  Ind.398,404. 
Doe,  26  Miss.   291;   Crosby  v.  Huston,   1         ^  Bennett  y.  Union  Bank,  5  Humph.  612. 
Tex.  239;  M'Gregor  v.   Hall,  3   St.  &  P.         '  Turner  v.  Watkins,  31  Ark.  429,  437. 

654 


THE   NATURE   AND   USE   OF   POWERS   OF   SALE.  [§  1771. 

that  the  mortgagee  retain  in  his  own  hands  absolute  power  over  his 
own  property.  I'he  objections  to  the  intervention  of  a  trustee  are 
apt  to  come  from  the  mortgagee,  and  he  is  generally  in  position  to 
have  his  own  choice  in  the  matter.  The  mortgagor  is  apt  to  sup- 
pose that,  in  placing  the  exercise  of  the  power  in  the  hands  of  a 
disinterested  third  party,  whose  position  in  relation  to  it  is  merely 
that  of  a  trustee,  he  secures  for  himself  the  protection  of  fair  deal- 
ing. It  generally  happens,  however,  that  the  debtor  has  to  pay  for 
the  services  of  a  trustee,  whose  disinterestedness  is  no  more  than  that 
of  the  creditor  himself.  The  trustee  is  obliged  to  act  when  the 
creditor  secured  by  tlie  deed  has  a  legal  right  to  call  for  the  exer- 
cise of  the  power,  and,  if  he  neglects  or  refuses  to  act,  he  may  be 
compelled  to  do  so  or  to  give  up  the  trust.  The  trustee  may,  when 
in  doubt  about  his  duty,  apply  to  the  court  in  equity  to  direct  him. 

This  form  of  security  has  come  into  very  general  use  in  several 
States,  and  in  Virginia  and  West  Virginia,  in  particular,  has  come 
into  universal  use  in  securing  debts  upon  real  estate.^ 

1771.  The  trustee  in  a  deed  of  trust  is  the  agent  of  both  par- 
ties, and  he  should  perform  his  duties  with  the  strictest  impar- 
tiality .^  Inasmuch  as  the  trustee  acts  for  both  parties,  and  the  law 
requires  of  him  the  utmost  good  faith  and  the  strictest  impartiality, 
he  should  have  no  personal  interest  to  subserve,  and  the  beneficia- 
ries should  not  be  relatives  or  friends  whom  he  might  feel  called 
upon  to  accommodate.  Certainly  no  one  interested  in  the  debt 
secured,  and  no  one  who  is  a  near  relative  of  the  beneficiary,  should 
be  a  trustee.^  A  failure  to  use  reasonable  diligence,  or  an  abuse  of 
his  discretionary  powers,  renders  him  personally  liable  to  the  party 
injured  for  the  damage  done.^     Thus,  if  without  authority  he  re- 

^  Taylor  v.  Stearns,  18  Gratt.   244,  278  "At  an  early  period  it  met  with  some  re- 

(1868).  sistance  from  the  court  and  the  bar,  though 

Mr.  Justice  Rives,  in  the  course  of   an  feeble  and  ineffectual.   It  was  deprecated  as 

able  opinion   holding    unconstitutional,  as  an  engine  of  oppression  in  the  bauds  of  the 

applied  to  trust  deeds,  a  law  staying  the  creditor.     It    was   denounced    as  a  pocket 

collection   of    debts   for  a   limited    period,  judgment.  ...  It   is   now  a  favorite  secu- 

spoke  of  the  nature  and  use  of  this  security,  rity  for  the  payment  of  money,  closely  in- 

"  What  is  a  deed  of  trust"?     It  is  a  form  of  terwoven  with  the  transaction  of  business, 

security  which  has,  in  our  practice,  super-  and  firmly  established  by  the  practice   of 

seded  the  mortgage,  and  doubtless  for  the  the  country  and  the  sanction  of  the  courts, 

very  reason  that  it  does  not  rcqure  the  inter-  It  has,  doubtless,  aided   credit,  facilitated 

vention  of  the  courts.     The  introduction  of  the  collection  of  debts,    and   saved    to  the 

trustees,  as  impartial  agents  of  the  creditor  debtor  tlie  costs  of  legal  proceedings." 

and  debtor,  admits  of  a  convenient,  cheaj),  '^  Sherwood  v.    Saxton,  63  Mo.  78,  and 

and  speedy  execution  of  the  trust,  and  in-  cases  cited, 

volves   none  of   the   expenses   and    delays  ^  Long  v.  Long,  79  Mo.  644. 

attendant  upon  mortgages.  *  Murrell  v.  Scott,  51  Tex.  520. 

655 


POWER   OF   SALE   MORTGAGES   AND   TRUST   DEEDS.       [§§  1771  a,  1772. 

leases  any  part  of  the  security,  or  after  a  sale  of  tlie  property  under 
the  power  improperly  releases  the  purchaser  from  his  bid,  and  sub- 
sequently sells  for  a  less  sum,  he  is  liable  to  the  beneficiary  in  an 
action  at  law  for  the  damages  sustained. ^  A  sheriff  or  other  officer 
acting  in  lieu  of  a  trustee,  under  authority  of  a  statute,  acts  in  his 
official  capacity,  and  for  a  breach  of  trust  or  failure  of  duty  is  liable 
upon  his  bond.^ 

The  fact  that  the  trustee  named  in  a  deed  of  trust  has  acted  as 
the  attorney  in  fact  of  the  creditor  in  selling  the  property  to  the 
mortgagor  does  not  disqualify  him  to  act  in  the  execution  of  the 
trust. ^  But  a  trustee  may  be  removed  by  a  court  of  equity  on  ac- 
count of  personal  ill-will  between  him  and  the  cestui  que  trusts 

1771  a.  The  trustee  may  divest  himself  of  the  legal  title  by  a 
conveyance  to  another  without  compliance  with  the  conditions  of 
the  trust  ;  but,  without  compliance,  a  sale  and  deed  do  not  pass 
the  trustor's  equitable  estate.  The  grantee  takes  only  the  trustee's 
title,  subject  to  the  equitable  right  of  the  grantor  in  the  trust  deed. 
The  trustee's  deed  is  not  void,  but  transfers  to  the  grantee  the  legal 
title  with  the  trust,  which  equity  may  compel  the  grantee  to  exe- 
cute, or  to  transfer  the  title  to  a  new  trustee,  upon  whom  will  de- 
volve the  execution  of  the  power.  A  trustee  who  has  conveyed 
the  trust  property  cannot  exercise  the  power  originally  vested  in 
him.  His  second  deed  is  wholly  void,  though  made  upon  a  read- 
vertisement  and  resale  in  accord  with  the  conditions  of  the  trust.^ 

There  are,  however,  some  cases  which  hold  that  a  trustee's  irreg- 
ular sale  and  conveyance  are  void,  and  that  he  may  reassume  his 
duty  as  trustee  and  proceed  to  make  a  formal  and  effectual  sale  and 
conveyance.^ 

1772.  The  debt  secured  by  a  deed  of  trust  belongs  primd 
facie  to  the  beneficiar}^  named  in  the  deed.  When  this  is  claimed 
by  the  trustee  himself,  the  presumption  against  him  derived  from 
the  deed  must  be  overcome  by  the  clearest  proof ;  and  the  fact 
that  the  note  and  deed  have  been  left  in  his  possession  is  of  little 
importance,  especially  when  the  beneficiary  is  a  woman  and  a  near 
relative."     Though  the  trustee  is  not  the  owner  of  the  note  secured 

1  Sherwood  w.  Saxton,  63  Mo.  78.  ingsly,   16   Ala.   414;    Taylor   v.   King,   6 

2  State  V.  Griffith,  63  Mo.  545  ;  §§  1745,  Munf.  358 ;  Cranston  v.  Crane,  97  Mass. 
1785.  459  ;  Fulton  v.  Johnson,  24  W.  Va.  95. 

■^  Sternberg  v.  Valentine,  6  Mo.  App.  176.  «  Ohnsburg  v.  Turner,  87  Mo.  127,  affirm- 

*  MePherson  v.  Cox,  96  U.  S.  404.  ing  13  Mo.  App.  533;  Enochs  v.  Miller,  60 

5  Stephens?;.  Clay,  17  Colo.  489,  30  Pac.  Miss.   19;  Bottineau  v.  iEtna   Ins.  Co.  31 

Rep.   43,  citing  Koestcr   v.  Burke,   81  111.  Minn.  125,16  N.  W.  Rep.  849. 

436  ;  Wells  v.  Cay  wood,  3  Colo.  487  ;    Doe  ''  Gimbel  v.  Pignero,  62  Mo.  240. 

V.  Robinson,  24  Miss.  688  ;  Huckabee  v.  Bill- 

666 


THE   POWER   OF   SALE   IS   A   CUMULATIVE   REMEDY.      [§  1773. 

by  the  deed  of  the  trust  at  the  time  of  its  execution,  the  benefi- 
ciary named  in  it  being  his  clerk,  the  deed  and  a  sale  under  it  are 
not  for  this  reason  void.  The  trustee  in  such  case  is  in  effect  a 
mortgagee  with  a  power  of  sale.^  But  where  a  trust  deed  is  by 
mistake  made  to  the  beneficiary  instead  of  the  trustee,  and  purports 
to  be  to  secure  the  trustee  and  not  the  beneficiary,  a  subsequent 
sale  of  the  land  by  the  intended  trustee,  and  purchase  of  it  by  the 
beneficiary,  are  void,  and  the  maker  of  the  note  secured,  having 
paid  it,  is  entitled  to  receive  his  property  clear  of  the  cloud  cast  on 
it  by  the  pretended  conveyance  and  purchase. - 

II.   The  Poiver  of  Sale  is  a  Cumulative  Remedy. 

1773.  Generally  a  power  of  sale  does  not  affect  the  right  to 
foreclose  in  equity,  either  by  a  strict  foreclosure,^  or  by  a  judicial 
sale,*  or  to  foreclose  in  any  way  provided  by  statute  for  the  ordi- 
nary foreclosure  of  mortgages,  as  by  entry  and  possession,  or  by 
suit  at  law.  The  power  is  merely  a  cumulative  remedy.  It  is  one 
species  of  foreclosure,  but  it  does  not  exclude  jurisdiction  in  equity. 
The  option,  however,  to  proceed  in  equity,  lies  wholly  with  tlie 
mortgagee.  A  resort  to  a  court  of  equity  is  not  necessary,  except 
where  made  so  by  statute ;  it  can  be  effectually  exercised  without 
the  aid  of  the  courts.^  If  the  power  proves  to  be  defective,  a 
resort  to  a  suit  in  equity  is  rendered  necessary.^  Even  after  the 
filing  of  a  bill  in  equity  to  foreclose  such  a  mortgage,  and  while  the 
bill  is  pending,  a  sale  may  be  made  under  the  power.''' 

A  resort  to  proceedings  in  equity  is  more  frequent  under  deeds 
of  trust  than  with  mortgages.  The  creditor  may  sometimes  be 
compelled  to  do  this  in  order  to  control  the  adverse  action  of  the 
trustee;  and  a  trustee  may  sometimes  do  so  in  order  to  obtain  the 

^  Cassady  v.  Wallace,  102    Mo.  575,   15  ter  r.  Kinman,  Harr.  (Mich.)  243;  Morri- 

S.  W.  Rep.  1.38.  son  z;.  Bean,  15  Tex.  267,  269;  Blackwell 

2  McMeel  v.   O'Connor  (Colo.),  32  Pac.  r.  Barneit,  52  Tex.  326  ;  Frierson  v.  Blan- 

llep.  182.  ton,  1  Bax.  272;  McDonald  v.  Vinson,  56 

^  Wayne  v.  Hanham,  9  Hare,   62,  20  L.  Miss.  497  ;  Green  v.  Gaston,  56  Miss.  748; 

J.  530;  Slade  v.  Rigg,  3  Hare,  35;    Cor-  Charleston  v.  Caulfield,  19  S.  C.  201 ;  Den- 

merais  v.  Genella,  22  Cal.  116.  ver  B.  &  M.  Co.  v.  McAllister,  6  Colo.  261, 

*  Hutton  V.    Sealy,   4  Jiir.    N.  S.   450;  266;  Knox  v.  McCain,  13  Lea,  197;  First 

McGowan    v.  Branch  Bank    at  Mobile,   7  Nat.  Bank  v.  Bell  Mining  Co.  8  Mont.  32, 

Ala.  823  ;  Marriott  v.  Givens,  8  Ala.  694  ;  19  Pac.  Rep.  403,  quoting  text. 

Vaughan  v.  Marable,  64  Ala.    60 ;  Carra-  ^  Hyde  v.  Warren,  46  Miss.  13. 

dine  u.  O'Connor,  21  Ala.  573;  Wofford  w.  «  Webb  v.   Haeffer,   53  Md.   187;  State 

Police  Board,  44  Miss.  579;  McAllister  v.  Bank  v.  Chapelle,  40  Mich.  447. 

Plant,  54  Miss.  106;  Fogarty  v.  Sawyer,  17  ^  Brisbane  v.  Stoughton,  17  Ohio,  482; 

Cal.  589  ;  Cormerais  v.  Genella,  22  Cal.  116;  First  Nat.  Bank  v.  Mining  Co.  8  Mont.  32, 

Brickell  v.  Batchelder,  62  Cal.  623;  Atwa-  19  Pac.  Rep.  403,  quoting  text. 

VOL.  II.            42  057 


§  1774.]        POWER   OF   SALE   MORTGAGES   AND    TRUST   DEEDS. 

direction  of  the  court  as  to  bis  duties.  A  trustee  may  resort  to  a 
bill  in  equity  in  order  to  prevent  tbe  bar  of  the  statute  of  limita- 
tions which  would  occur  before  a  sale  could  be  advertised  under  the 
deed.i  When  a  trustee  under  a  trust  deed  enters  into  a  collusive 
arrangement  with  the  grantor  in  the  deed  and  declines  to  execute 
the  trust,  and  after  instituting  an.  action  of  ejectment  to  recover 
possession  of  the  premises  dismisses  it  against  the  wish  of  the  bene- 
ficiary, a  foreclosure  may  be  had  in  chancery  and  a  receiver  may  be 
appointed,  upon  showing  the  inadequacy  of  the  security  for  the 
payment  of  the  debt.^  A  court  of  equity,  whenever  a  contingency 
arises  which  gives  it  jurisdiction  and  occasion  to  interfere,  will,  at 
the  instance  of  a  cestui  que  trust,  control,  restrain,  and  direct  the 
exercise  of  the  pov/er.^ 

1774.  The  court  will  appoint  a  new  trustee  upon  the  death, 
inability,  or  declination  of  the  trustee  named  in  the  deed  of  trust, 
upon  the  application  of  the  persons  interested  in  the  execution  of 
the  trust,  and  of  the  author  of  the  trust  as  well;"^  but  they  are  all 
necessary  parties  to  a  bill  to  obtain  such  appointment.  Although 
the  person  who  made  the  trust  deed  has  conveyed  to  another  his 
interest  in  the  premises,  so  long  as  Ije  remains  liable  for  the  pay- 
ment of  the  note  secured  by  the  deed  he  is  interested  in  the  ap- 
pointment of  a  proper  person  to  sell  the  property  in  such  manner 
as  not  unnecessarily  to  cause  a  deficiency.  The  purchaser  from 
him  is  directly  interested  in  the  sale  of  the  property,  and  is  also  a 
necessary  party .^ 

So,  also,  when  a  trustee  removes  to  a  foreign  country  and  there 
becomes  a  permanent  resident,  he  incapacitates  himself  from  dis- 
charging the  duties  of  his  trust  and  vacates  his  office.  A  new  trus- 
tee may  thereupon  be  appointed.  Where  a  railroad  mortgage  pro- 
vides that  upon  the  death,  removal,  or  incapacity  of  a  trustee  the 
majority  of  the  bondholders  may  designate  in  writing  a  person  to 
fill  the  vacancy,  and  the  bondholders  select  a  new  trustee  in  place 
of  one  who  has  permanently  removed  from  the  State,  the  courts  will 
recognize  the  new  trustee,  and  restrain  the  other  from  acting.'' 

A  trustee  who  has  once  accepted  the  trust  is  not  allowed  to  lay  it 
down  without  the  assent  of  the  beneficiary,  or  the  decree  of  a  court 
of  equity  ; "  but  if  within  the  jurisdiction  of  the  court,  may  be  com- 
pelled to  discharge  the  trust. ^ 

1  McDonald  v.  Vinsou,  56  Miss.  497.  ^  Holden  v.  Stickney,  2  MacArthur,  141. 

2  Myers  v.  Estell,  48  Miss.  372.  ^  Farmers'  Loan  &  Trust  Co.  v.  Hughes, 

*  Youngman  v.  Elmira  &  Williamsport     11  Hun,  130. 

R.  R.  Co.  65  Pa.  St.  278,  ''  Drane  v.  Gunter,  19  Ala.  731. 

*  Clark  V.  Wilson,  53  Miss.  119.  »  Sargent  v.  Howe,  21  111.  148. 

668 


TIIK   POWER   OF   SALE   IS   A   CUMULATIVE   REMEDY.       [§  1774. 

Tlie  trust  deed  often  makes  provision  for  the  filling  of  any  va- 
cancy that  may  occur  in  tlie  office  of  trustee ;  and  if  the  person  who 
is  to  execute  the  trust  and  the  event  upon  which  he  may  execute  it 
are  distinctl}'^  described  he  may  act,  and  his  acts  will  he  valid.  But 
if  a  power  to  appf)int  a  new  trustee  be  conferred  by  the  deed  upon 
the  cestui  que  trust.,  liis  assignee  cannot  make  a  valid  appointment, 
for  this  power  of  appointment  is  personal  or  in  gross  ;  is  a  con- 
fidence reposed  in  him  which  he  cannot  delegate  to  another,  unless 
expressly  authorized  by  the  donor.^ 

Where  a  deed  of  trust  appoints  the  sheriff  of  the  county  or  any 
other  person  to  act  in  case  of  the  death  or  absence  of  the  trustee 
named  in  the  deed,  the  holder  of  the  obligation  secured  cannot,  by 
an  ex  parte  proceeding,  have  a  third  person  appointed  trustee.^ 

A  deed  of  trust  provided  that,  in  the  event  the  trustee  named 
should  be  unwilling  or  unable  to  act  in  carrying  out  the  trust, 
he  should  appoint  a  substitute  trustee ;  and  in  the  event  the  trustee 
sliould  refuse  to  appoint  a  substitute  trustee,  then  it  should  be 
lawful  for  the  holder  of  the  note,  due  and  unpaid,  to  appoint  a  sub- 
stitute trustee  under  his  hand  and  seal,  and  that  his  acts  should  be 
effectual  and  binding.  Prior  to  any  action  being  taken  under  the 
deed  of  trust,  the  original  trustee  died  without  appointing  a  substi- 
tute, and  afterwards  the  holder  of  the  note  appointed,  in  writing 
not  under  seal,  a  substitute  trustee,  by  whom  the  land,  after  de- 
fault, was  advertised,  sold,  and  conveyed.  In  a  controversy  involv- 
ing the  validity  of  the  sale,  it  was  held  that,  the  original  trustee 
being  rendered  unable  to  act  by  death,  though  there  was  technically 
no  refusal  to  appoint  a  substitute,  there  existed  what  was  in  effect 
equivalent  to  a  refusal,  and  that,  the  execution  of  the  power  being 
in  other  respects  valid,  the  omission  of  a  seal  in  the  appointment  of 
the  substitute  trustee  did  not  invalidate  it.^ 

Where  a  trust  deed  empowers  the  beneficiary  to  appoint  a  sub- 
stituted trustee  in  case  the  original  trustee  refuses  or  fails  to  act, 
the  appointment  of  a  substituted  trustee  while  the  original  trustee 
is  advertising  the  property  for  sale  under  the  trust  deed  confers  no 
title  on  tlie  substituted   trustee.     Until  the  original  trustee  refuses 


'  Clark  U.Wilson,  53  Miss.  119;  Equi-  he  is  paid  for  his  services,  such  refusal  con- 
table  Trust  Co.  V.  risher,  106  111.  189.  If  stitutes  such  a  failure  as  authorizes  the  ap- 
hy  the  terms  of  a  deed  of  trust  the  cestui  poiutment  of  a  substitute.  Klein  v.  Glass, 
que  truat  be  authorized  to  appoint  a  substi-  53  Tex.  37. 

tute  trustee  in  the  event  of  the  death,  re-  ^  Bacigalupo  v.  Lallemcnt,   7  Mo.  App. 

fusal,  or  failure  of  the  original  trustee  to  595. 

act,  and  the  trustee  decline  to  execute  the  ^  Jacobs  v.  McCliutock,  53  Tex.  72. 
trust  unless,  in  addition  to  his  commissions, 

659 


§§  1774  a,  1775.]  power  of  sale  mortgages  and  trust  deeds. 

to  act  in  the  performance  of  his  duties  as  trustee,  there  is  no 
power  in  any  one  to  appoint  a  substitute.^  Moi-eover,  the  bene- 
ficiary cannot  substitute  another  trustee  in  case  he  has  never  asked 
the  original  trustee  to  make  the  sale,  since  the  trustee  could  not  be 
said  to  "  fail "  to  act  until  he  had  been  requested  to  act,  and  has 
omitted  to  do  so.^ 

1774  a.  A  trust  regarding  realty  will  be  enforced  regardless 
of  the  situation  of  the  property.  Thus,  where  a  deed  of  trust  of 
land  has  been  executed  in  California,  by  persons  residing  there, 
of  land  in  another  State,  a  court  of  California,  having  jurisdiction  of 
the  parties,  may  appoint  a  new  trustee  in  place  of  one  incompetent 
to  act,  and  direct  him  to  carry  out  the  trust.^  The  lex  rei  sitce 
governs  as  to  questions  affecting  the  title  to  real  property.  Land  is 
held  and  the  title  determined  by  the  laws  of  the  country  or  State 
where  it  is  situated,  and  the  tribunals  administering  those  laws  are 
the  proper  forums  in  which  titles  to  realty  should  be  litigated.  The 
effect  of  a  court's  decree  is  necessarily  limited  by  the  boundary  lines 
of  its  jurisdiction.  Thus,  where  a  court  of  Pennsylvania  adjudged 
a  conveyance  of  land  in  New  Jersey  to  be  a  mortgage,  and  cancelled 
the  same,  all  the  parties  living  in  Pennsylvania,  the  Supreme  Court 
of  New  Jersey  said:  "  The  decree  cannot  operate  ex proprio  vigors 
upon  the  lands  in  another  jurisdiction  to  create,  transfer,  or  vest  a 
title.  The  courts  of  one  State  or  country  are  without  jurisdiction 
over  title  to  lands  in  another  State  or  country."  ^  But  a  court  of 
equity  has  jurisdiction  of  matters  of  trust,  and,  "  whenever  jurisdic- 
tion over  the  parties  has  been  acquired,  administer  full  relief,  with- 
out regard  to  the  nature  or  situation  of  the  property  in  which  the 
controversy  had  its  origin,  and  even  where  the  relief  sought  con- 
sists in  a  decree  for  the  conveyance  of  property  whicii  lies  beyond 
the  control  of  the  court,  provided  it  can  be  reached  by  the  exercise 
of  its  powers  over  the  person,  and  the  relief  asked  is  of  such  nature 
as  the  court  is  capable  of  administering."  ^  In  the  language  of 
Chief  Justice  Marshall  in  such  a  case,  "  the  circumstance  that  a 
question  of  title  may  be  involved  in  the  inquiry,  and  may  even  con- 
stitute the  essential  point  on  which  the  case  depends,  does  not  seem 
sufficient  to  arrest  that  jurisdiction."*^ 

1775;  The  sale  is  by  virtue  of  the  power  and  not  of  the  de- 

1  Chestnutt  v.  Gann,  76  Tex.  150,  13  S.  507;   Barger  v.  Buckland,  28  Gratt.  850; 
W.  Rep.  274.  Massie  v.  Watts,  6  Cranch,  148. 

2  Stallings  v.  Thomas,  55  Ark.  326, 18  S.        *  Liudley  v.  O'Kdlly,  50  N.  J.  L.  636,  15 
W.  Rep.  184.  Atl.  Rep.  379. 

3  Smith  V.  Davis,  90  Cal.  25,  27  Pac.  Rep.        ^  Wimer  v.  Wimer,  82  Va.  800. 
26.     And  see  Poindextery.  Burwell,  82  Va.        ^  Massie  v.  Watts,  6  Crauch,  148. 

660 


THE   POWER   OF   SALE   IS   A    CUMULATIVE    REMEDY.       [§  1776. 

cree  wlien  the  court  enforces  the  power.  Upon  the  death  of  the 
trustee  named  in  a  deed  of  trust,  a  court  of  equity  has  power  to 
appoint  a  new  trustee  to  execute  the  power  of  sale,  and  to  deter- 
mine the  amount  of  the  debt  secured  by  the  trust;  but  a  sale  by 
such  trustee  professedly  by  virtue  of  the  trust  deed,  made  in  pur- 
suance of  such  decree,  is  not  a  sale  made  under  a  decree  of  fore- 
closure, but  one  made  by  virtue  of  the  power  in  the  trust  deed.^  A 
sale  made  by  decree  of  a  court  of  equity  varying  substantially  in 
its  terms  from  the  provisions  of  the  power  is  a  judicial  sale,  and  not 
a  sale  under  the  power. ^ 

It  has  been  held  in  Virginia  that  the  trustee  cannot  sell  until  the 
amount  of  the  debt  secured  is  ascertained,  and  that  either  party  in 
interest  may  resort  to  a  court  of  equity  for  this  purpose.^  After  as- 
certaining the  amount  the  court  may,  in  its  discretion,  dismiss  the 
bill  and  leave  the  trustee  to  sell  under  the  power,  or  may  retain 
the  case  and  have  the  trust  executed  under  its  own  supervision.  The 
court  may  also  appoint  a  commissioner  to  make  the  sale  instead  of 
the  trustee  ;  but  he  must  pursue  the  provisions  of  the  deed  as  to 
the  terms  and  mode  of  sale.  The  court  cannot  set  aside  the  deed 
of  trust  in  any  respect."^ 

1776.  When  debt  is  unliquidated.  — If  the  amount  secured  by 
the  mortgage  can  be  ascertained  by  calculation,  there  is  no  objec- 
tion to  a  foreclosure  under  the  power ;  ^  neither  is  there  if  it  is  con- 
ditioned for  the  deliverj'^  of  certain  specified  articles,  when  a  specified 
sum  is  authorized  to  be  retained  from  the  proceeds  upon  a  breach  of 
the  condition.^  It  is  then  equivalent  to  a  mortgage  to  secure  the 
payment  of  a  definite  sum.  But  a  mortgage  given  to  secure  and 
cover  unliquidated  damages  cannot  be  foreclosed  in  this  manner" 
until  the  amount  due  under  the  mortgage  has  been  ascertained.  It 
has  been  held  also  that  under  a  deed  of  trust,  if  the  amount  of  the 
debt  secured  be  unliquidated  and  uncertain,  a  sale  cannot  be  made 
under  the  power  until  the  amount  of  the  debt  has  first  been  deter- 
mined in  a  court  of  equity.^ 

The  objection  that  the  sum  secured  is  uncertain  or  unliquidated 
has  particular  force  in  those  States  in  which  there  are  statutory  pro- 

1  Rice  V.  Brown,  77  111.  549 ;  Holden  v.  ^  Mowry  v.   Sanborn,  62  Barb.  223,  68 

Stickney,  2  McArthur,  141  ;  Staats  v.  Bige-  N.  Y.  153.     See  §  1812. 

low,  2  McArthur,  367;  Doolittle  v.  Lewis,  <5  Jackson  v.  Turner,  7  Wend.  458. 

7  Johns.  Ch.  45,  11  Am.  Dec.  389;  Beatie  ''  Ferguson  v.  Kimball,  3  Barb.  Ch.  616; 

".  Butler,  21  Mo.  313,  64  Am.  Dec.  234.  Mowry  v.  Sanboru,  62  Barb.  223  ;  Mosby  v. 

-  Chew  V.  Hyman,  7  Fed.  Eep.  7.  Hodge,  76  N.  C.  387. 

■'  Wilkins  v.  Gordon,  11  Leigh,  547.  »  Wiikins  v.  Gordon,  11  Leigh,  547.     See 

*  Crenshaw  v.  Seigfried,  24  Gralt.  272.  Kiggs  v.  Armstrong,  23  W.  Va.  760. 

661 


§§  1777-1777  b.]  power  of  sale  mortgages  and  trust  deeds. 

visions  that  only  so  much  of  the  estate  as  maybe  necessary  to  satisfy 
the  mortgage  debt  shall  be  sold. 

III.   Construction  of  Power. 

1777.  The  power  to  sell  may  not  only  be  made  by  an  instru- 
ment separate  from  the  mortgage,^  but  it  may  be  to  a  third  per- 
son, instead  of  the  mortgage  creditor  ;  for  instance,  it  may  be  in  the 
form  of  a  power  of  attorney  to  a  third  person  ;  and  such  power, 
when  executed  according  to  its  terms,  effectually  cuts  off  the  equity 
of  redemption. 2  Moreover,  a  power  in  the  mortgage  or  deed  may 
be  changed  by  a  writing  subsequently  executed  by  the  parties  under 
seal.^  A  power  of  sale,  though  it  should  be  expressly  and  fully 
conferred,  may  sometimes  arise  by  necessary  implication  from  the 
terms  of  the  instrument.^ 

1777  a.  A  power  of  sale  may  in  general  be  conferred  by  any 
owner  of  lands  who  has  the  legal  capacity  to  convey  them.  A 
statute  which  provides  that  any  married  woman  above  the  age  of 
eighteen  years,  joining  with  her  husband,  may  make  a  valid  mort- 
gage or  other  conveyance  of  her  real  estate,  or  of  any  interest 
therein,  authorizes  such  married  woman  executing  a  mortgage  or 
deed  of  trust  in  the  manner  provided  to  confer  a  power  of  sale,  the 
exercise  of  which  will  effectually  bar  her  equity  of  redemption.'' 
Such  a  power  is  an  irrevocable  authority  to  aid  in  the  alienation 
of  the  estate,  and  bears  no  analogy  to  covenants  declared  by  the 
common  law  to  be  inoperative  in  the  deed  of  a  married  woman.^ 

1777  b.  The  mortgage  generally  provides  upon  what  event 
the  power  may  be  exercised.  In  general  it  is  provided  that  a  sale 
under  the  power  may  be  had  upon  any  default  in  the  conditions  of 
the  mortgage.  A  default  in  the  payment  of  any  instalment  of  the 
principal  or  of  the  interest  of  the  mortgage  debt  is  a  default  which 
authorizes  the  exercise  of  the  power.*^ 

Under  a  deed  of  trust  securing  several  notes  due  at  different  times 
which  authorizes  the  trustee  to  sell  in  case  the  debtor  fails  to  pay 
"sa/'id  notes  on  or  before  the  maturity  thereof,"  the  trustee  or  the 
beneficiary  has  the  right  to  enforce  a  sale  of  the  land  for  the  pay- 

1  Alexander  v.  Caldwell,  61  Ala.  543.  "^  §§  1177,  1178 ;  Hooper  v.  Stump  (Ari- 

2  Brisbane  v.  Stoui>liton,  17  Ohio,  482.  zona),  14  Pac.  Rep.  799;  Brickell  u.  Batcli- 
8  Baldridge  v.  Walton,  1  Mo.  520.  elder,  62  Cal.  623  ;  Gustav.  Adolph.  Build. 
*  Purdie  v.  Whitney,  20  Pick.  25 ;  Mundy  Asso.  v.  Kratz,  55  Md.  394 ;  Potomac  Manuf. 

V.  Vawter,  3  Gratt.  518.  Co.  v.  Evans,  84  Va.  717,  6  S-  E.  Rep.  2. 

^  Barnes  v.  Erliman,  74  111.  402.  Cured  by  tender  before  sale.     Phillips  v. 

6  Barnes    v.   Ehrman,    74    111.    402,  per    Bailey,  82  Mo.  639. 
Scott,  J. 

662 


CONSTRUCTION   OF   POWER.  [§§  1778,  1779. 

ment  of  one  or  more  of  the  notes  not  paid  at  maturity,  without 
waiting  for  the  maturity  of  all  the  notes.i  The  same  construction 
is  given  to  a  power  to  sell  in  the  event  that  "  the  said  notes  should 
not  be  well  and  truly  paid."^  A  sale  made  before  the  debt  or  any 
part  of  it  is  due  is  absolutely  void  and  passes  no  title."  ^ 

1778.  The  parties  may  also  make  such  provisions  and  regula- 
tions about  the  sale  of  the  property  under  the  trust  as  they  may 
choose ;  and  the  sale  must  be  in  accordance  with  the  provisions  of 
the  power  given.  No  particular  form  of  words  is  necessary  to  con- 
stitute the  power.  The  essential  provisions  of  it  should  be  clearly 
and  fully  expressed,  for  the  title  of  the  purchaser  under  the  power 
rests  upon  the  authority  there  given.*  When  in  a  trust  deed  the 
powers  of  the  trustee  are  not  strictly  defined,  they  rest  largely  in 
his  discretion,  and  it  is  presumed  that  he  will  exercise  them  for  the 
best  interests  of  the  cestui  que  trusts  Thus  the  deed  usually  des- 
ignates the  place  of  sale  and  the  character  of  the  notice  of  it  to  be 
given  ;  but  if  the  deed  leaves  these  matters  to  the  discretion  of  the 
trustee,  a  sale  by  him  in  the  honest  exercise  of  his  judgment  will  be 
sustained.^ 

Under  a  trust  deed  made  to  secure  a  loan,  with  authority  to  the 
trustee  to  take  possession  of  the  property  and  sell  it  upon  thirty 
days'  notice,  the  authority  to  sell  is  for  the  benefit  of  the  creditor, 
and  may  be  exercised  at  the  discretion  of  the  trustee.  He  is  not 
bound  to  sell  within  the  time  named,  or  at  all,  unless  by  direction 
of  a  court  of  equity.  In  the  mean  time  it  is  his  right  and  duty  to 
take  possession,  and  to  apply  the  rents  and  profits  to  the  payment 
of  the  debt.  The  object  of  the  trust  is  to  enable  the  creditor  to 
make  his  money  out  of  the  property,  and  therefore  its  provisions  are 
to  be  construed  and  applied  with  a  view  to  that  end." 

1779.  WTiat  is  a  sufficient  power.  —  A  provision  in  a  mortgage 
that,  if  the  mortgagor  "  shall  fail  to  make  the  payment,  the  said 
mortgagee  shall  advertise  twenty  days,  and  sell  enough  of  the  estate 
herein  conveyed  to  him  to  pay  said  amount  then  due,  and  the  said 
mortgagor  shall  have  the  right  to  direct  what  shall  be  sold,"  is  a 
sufficient  power  of  sale,  and  may  be  executed  without  the  aid  of 
a  court  of  equity.^     The  power  of  sale  may  even  be  contained  in  a 

1  Bridges  v.  Ballard,  62  Miss.  237.  son  v.  Lawrence,  117  U.  S.  679,  6  Sup.  Ct. 

2  Rediiick.   v.    Gressman,    49    Mo.    389,    Rep.  915. 

Hunt  V.  Harding,  U  Ind.  24.'3.  *  Graiine  v.  Cullen,  23  Gratt.  266. 

3  Long  I'.  Long,  79  Mo.  644  ;  Eitelgeorge  ^  Ligle  v.  Culiiertson.  43  Iowa,  26.5. 
V.  Mut.  House  Building  Asso.  69  Mo.  55.  ^  in^rje  ,-.  Culbertson,  43  Iowa,  265. 
Parol  evidence  is  admissilde  to  show  when  "^  Walker  v.  Teal,  7  Sawyer,  39. 

the  power  of  sale  became  absolute.     Jack-        "  Hynian  v.  Devereux,  63  N.  C.  624. 

663 


§§  1780-1782.]     POWER  OF  sale  mortgages  and  trust  deeds. 

deed  of  the  land  to  the  debtor.  A  stipulation  in  such  deed  that,  if 
the  grantee  fail  to  pay  the  notes  given  for  the  purchase-money  when 
due,  the  sheriff  of  the  county  acting  at  the  time  of  default  shall  sell 
the  land,  give  title  to  the  purchaser,  and  pay  the  money  to  the 
grantor,  or  to  the  assignee  or  holder  of  any  of  the  notes,  confers  a 
valid  power  of  sale  upon  the  sheriff,  although  the  title  to  the  land 
is  in  the  grantee.^  ' 

1780.  Acceptance  of  trust.  —  It  is  not  requisite  to  the  validity 
of  a  power  in  a  trust  deed  that  the  person  who  is  to  execute  the 
power  shall  signify  his  willingness  to  do  so  by  joining  in  the  deed, 
or  by  any  formal  writing.^  Although  the  deed  be  delivered  to  the 
cestui  que  trust,  and  the  trustee  never  has  possession  of  it,  yet  his 
acting  under  the  trust  by  advertising  the  property  for  sale  is  an 
acceptance  of  the  trust  by  him.^  Neither  is  it  necessary  that  the 
cestui  que  trust  should  signify  his  assent  by  any  formal  writing. 
The  deed  being  for  his  benefit,  his  assent  is  presumed.^ 

1781.  An  obvious  error  on  the  face  of  the  power,  such  as  a 
recital  that  "  the  party  of  the  first  part,"  who,  according  to  the 
phraseology  of  the  deed,  was  the  mortgagor,  should  proceed  to  sell, 
does  not  invalidate  the  power,  when  it  appears  from  the  whole  in- 
strument that  the  intention  was  to  confer  a  power  of  sale  on  the 
mortgagee.^ 

1782.  Under  a  power  in  default  of  payment  to  "enter  and 
take  possession  of  said  premises  iuimediately,  and  sell  and  dis- 
pose of  the  same,"  the  entry  and  possession  are  not  generally  con- 
sidered a  condition  precedent  to  the  exercise  of  the  power  of  sale,^ 
though  it  has  been  held  that  under  such  a  provision  a  sale  cannot 
be  made  without  a  previous  entry  and  taking  possession,  or  at  least 
a  demand  for  possession  and  a  refusal  ;  ">  but  it  is  not  necessary  that 
the  mortgagee  should  enter  upon  the  premises  at  any  other  time, 
or  in  any  other  manner,  than  at  the  time  of  the  sale,  and  for  the 
purposes  of  the  sale.  Such  entry  is  authorized  to  enable  the  sale  to 
be  made  upon  the  premises.^ 

1  Moore  v.  Lackey,  53  Miss.  85.  44  III.  186;  Clark  v.  Harvey,  16  Ontario, 

'-  Leffler  v.  Armstronfj,  4  Iowa,  482,  68  159. 

Am.  Dec.  672;  Hipp  y.  Huchett,  4  Tex.  20;  ^  Roarty  v.  Mitchell,  7    Gray,   243,  fol- 

Flint  V.  Clinton  Co.  12  N.  H.  430,  432.  lowed  in  Foster  v.  Boston,  133   Mass.  143. 

3  Crocker  v.  Lowenthal,  83  111.  579.  If  the  deed  makes  entry  and  possession  a 

■1  Shearer  r.  Lofiin,  26  Ala.  703.  condition   precedent,  this  cannot  be  satis- 

5  Gaines  v.  Allen,  58  Mo.  537.  fied  by  a  demand  for  possession.     Vaughan 

6  Vaughan  v.  Powell,  65  Miss.  401,  4  So.  v.  Powell,  65  Miss.  401,  4  So.  Kep.  257,  per 
Rep.  257;  Tyler?;.   Herring,  67  Miss.  169,  Campbell,  J. 

6  So.  Kep.  840;    Hamilton  v.   Haplin,   68        ^  Cranston   v.   Crane,  97    Mass.  459,  93 
Miss.  99,  8  So.  Rep.  739  ;  Kiley  v.  Brewster,    Am.  Dec.  106. 

601 


CONSTRUCTION   OF   POWER.  [§§  1783-1785. 

1783.  The  fact  that  a  mortgagee  has  made  an  entry  for  fore- 
closure, and  taken  rents  and  profits  which  are  insufficient  to  dis- 
charge the  debt,  does  not  prevent  his  making  a  valid  sale  under  a 
power  of  sale  in  the  mortgage.  The  rents  and  profits  received  go 
to  reduce  the  amount  of  the  mortgage  debt.^ 

1784.  As  against  the  mortgagor  a  sale  under  a  power  is  good 
although  the  mortgage  or  the  power  has  not  been  recorded  ;  ^ 
though  now,  in  several  States  in  which  the  exercise  of  the  pow^r  of 
sale  is  regulated  by  statute,  it  is  provided  that  the  mortgage  or 
power  shall  be  recorded.  Under  such  provisions,  if  the  premises 
consist  of  distinct  lots  situated  in  two  or  more  counties,  the  mort- 
gage must  be  recorded  in  each  county,  or  the  sale  will  be  invalid  as 
to  the  part  in  the  county  in  which  there  was  no  record.^  A  valid 
sale  may  be  nrade  by  the  assignee  of  a  mortgage  containing  a  power 
of  sale,  although  the  assignment  is  not  recorded  till  after  the  sale, 
if  nobody  is  thereby  misled,  unless  otherwise  provided  by  statute.* 

1785.  Who  may  exercise  the  power.  —  In  general  any  person 
in  whom  the  legal  estate  or  title  under  the  mortgage  is  vested  may 
sell  under  the  power.  The  person  exercising  the  power  must  hold 
the  legal  title,^  save  in  exceptional  cases,  as  where  the  title  is  in  an 
executor  or  administrator.^  So  long  as  the  mortgagee  retains  the 
mortgage  the  power  must  be  exercised  by  him;  and  when  it  has 
been  wholly  assigned  the  assignee  must  exercise  it.'' 

To  create  a  valid  power,  or  to  make  a  valid  execution  of  it,  one 
must  have  a  legal  capacity  to  act  and  contract,  and  one  under  any 
legal  disability,  such  as  minority,  can  do  neither.^  A  married  woman 
may  make  a  good  power,  or  a  valid  execution  of  one.^ 

A  corporation,  to  which  as  a  mortgagee  a  power  of  sale  is  given, 
may,  as  a  general  rule,  exercise  the  power.  In  Maryland,  however, 
as  the  person  exercising  the  power  must  act  under  oath,  a  power  of 
sale  cannot  be  exercised  by  a  corporation,  though  it  may  be  exer- 

1  Montague   v.    Dawes,    12  Allen,    397.  N.  Dak.  266,  47  N.  W.  Rep.  375  ;  Brown  w. 

And  see  §  1268.  Delaney,  22  Minn.  349  ;  Dameron  v.  Esk- 

■2  Wilson   V.  Troup,  2  Cow.  195,  14  Am.  ridge,  104  N.  C.  621,  10  S.  E.  Rep.  700. 

Dec.  458;  Jackson  f.  Golden,  4  Cow.  266.  "^  Baldwin  i'.  Allison,  4  Minn.  25,  Mor- 

3  Wells  V.  Wells,  47  Barb.  416.  ris  v.  McKnight,  1   N.  Dak.  266,  47  N.  W. 

4  Montague   v.   Dawes,    12  Allen,   397;  Rep.  375. 

Western  Md.  R.  R.  Co.  v.  Goodwin  (Md.),  '  Cohoes  Co.  v.  Goss,  13  Barb.  137  ;  Mc- 

26  Atl.  Rep.  319.  Guire  v.  Van  Pelt,  55  Ala.  344. 

^  Backus  y.  Burke,  48  Minn.  260,  51  N.  W.  «  Bm-ugj;   v.    Dennistou,    5    Johns.    Ch. 

Rep.  284;  Burke  v.  Backus  (Minn.),  53  N.  35. 

W.  Rep.  458 ;  Solberg  v.  Wright,  33  Minn.  ^  Deniarest  v.  Wynkoop,  3  Johns.  Ch. 

224,  22  N.  W.  Rep.  381 ;  Lee  v.  Clary,  38  129,  8  Am.  Dec.  467  ;  Doolittle  v.  Lewis,  7 

Mich.  223;  Miller  v.  Clark,  56  Mich.  337,  Johns.  Ch.  45,  11  Am.  Dec.  389;  Young  t;. 

23  N.  W.  Rep.  35  ;  Morris  v.  McKnight,  1  Graff,  28  111.  20. 

665 


§  1786.]        POWER    OF   SALE   MORTGAGES   AND   TRUST    DEEDS. 

cised  by  a  natural  person  designated  in  the  mortgage  as  the  attorney 
of  the  corporation. 1 

A  deed  of  trust  with  a  power  of  sale  made  to  a  sheriff  and  his 
successors  in  office  is  construed  as  conferring  a  power,  not  upon  the 
sheriff  in  his  individual  capacity,  hut  in  his  official  capacity,  and  his 
successors  in  office  may  execute  it.^ 

A  trust  deed  may  properly  provide  for  a  successor  in  the  trust 
who  may  exercise  the  power  of  sale  in  the  absence  of  the  trustee 
first  named,  or  in  case  of  his  refusal  to  act,  and  in  such  case  a  suc- 
cessor appointed  in  the  manner  provided  is  clothed  with  all  the 
power  to  make  the  sale  which  the  trustee  first  named  was  invested 
with  .2 

A  mortgage  was  made  to  secure  a  debt  to  a  partnership,  one  of 
the  partners  in  which  had  died,  and  tiie  other  partner  was  then  his 
administrator.  The  consideration  was  stated  to  be  paid  by  the  sur- 
viving partner  and  the  estate  of  the  deceased  partner,  and  the  same 
form  was  used  in  designating  the  grantees  ;  and  a  power  of  sale  was 
given  to  "said  grantees."  It  was  held  that  the  surviving  partner 
as  administrator  was  sufficiently  designated  as  one  of  the  grantees ; 
that  the  whole  legal  title  was  vested  in  him,  one  half  to  his  own 
use,  and  the  other  as  administrator ;  and  that  his  omission  to  de- 
scribe himself  as  administrator  in  a  deed  given  in  execution  of  the 
power  to  sell  did  not  invalidate  the  deed.^ 

Upon  the  death  of  a  mortgagee  holding  a  mortgage,  it  can  only 
be  foreclosed  by  his  executor  or  administrator.  A  foreclosure  by  a 
notice  of  sale  purporting  to  be  in  the  name  of  the  deceased  mort- 
gagee, or  by  his  authority,  is  void,  and  the  notice  cannot  be  made 
effectual  by  proof  that  it  was  really  the  act  of  a  person  who  had 
purchased  the  note  and  mortgage,  although  the  mortgagee  had  not 
indorsed  the  note  nor  assigned  the  mortgage.^ 

1786.  A  power  of  sale  may  be  executed  by  the  executor  or 
administrator  of  the  mortgagee,  although  in  terms  the  power  is 
given    only    to    him,  "his   heirs   or  assigns."^      The  power   being 

1  §  1740;  Chilton  v.  Brooks,  71  Md.  445,  v.  Cooley,  44  Minn.  446,  46  N.  W.  Rep. 
18  Atl.  Rep.   868  ;  Frostbuvg  Mut.  Build.    908. 

Asso.   V.  Lowdermilk,  50  Md.  175;  Queen  <^  Lewis  w.  Wells,  50  Ala.  198;  Harnickell 

City  Build.  Asso.  v.  Price,  53  Md.  397.  v.  Orndorff,  35  Md.  341  ;  Berry  r.  Skinuer, 

2  Beal  y.  Blair,  33  Iowa,  318;  White  w.  30  Md.  567,  573;  Collins  v.  Hopkins,  7 
Stephens,  77  Mo.  452  ;  §  1771.  Iowa.  463  ;  Demarest  v.  Wynkoop,  3  Johns. 

»  Irish  V.  Antioch  College,  126111.474,  18  Ch.  129,  145,  8  Am.  Dec.  467;  Johnson  r. 

N.  E.  Rep.  768  ;  Lake  v.  Brown,  116  111.  83.  Turner,  7  Ohio,  568  ;  Mervin  t;.  Lewis,  90 

*  Look  V.  Kenney,  128  Mass.  284.  111.  505.    So  in  North  Carolina  :  Acts  188T, 

6  Bausman    ;;.  Kelley,  38   Minn.  197,  36  ch.  147.    This  statute  applies  to  cases  where 

N.  W.  Rep.  338,  8  Am.  St.  Rep.  661;  Welsh  the  executor  is  not  mentioned  in  the  power. 

666 


CONSTRUCTION   OF   POWER. 


[§  1787. 


coupled  with  an  interest  passes  to  any  one  in  whom  the  mortgagee's 
estate  becomes  vested,  whether  by  assignment  in  fact  or  in  law.  It 
does  not  matter  that  the  appointment  of  the  executor  or  adminis- 
trator is  made  in  another  State,  as  the  power  is  a  matter  of  contract 
and  not  of  jurisdiction,  though  no  evidence  of  their  appointment  is 
of  record  in  the  county  where  the  mortgaged  premises  are  situated.^ 
For  the  purpose  of  making  the  record  title  complete,  an  appoint- 
ment in  the  State  where  the  land  is  situated  is  essential.^  A  sur- 
viving executor  or  administrator,  if  he  retains  authority  under  the 
will  or  by  law"  to  go  on  with  the  administration  of  the  estate,  may 
sell  under  the  power. 

1787.  A  legal  assignment  of  the  mortgage  passes  the  power 
of  sale  unless  there  are  words  of  restriction.'^  It  does  not  matter 
that  the  assignment,  though  absolute  in  form,  is  in  fact  a  collateral 
security  for  a  debt  due  from  the  mortgagee  ;  ^  but  although  such 
assignee  may  foreclose  in  the  same  way  as  any  assignee,  yet,  if  he 
purchases  at  the  sale,  the  mortgagee  may  redeem. ^     If  by  concur- 


The  mortgage  may  itself  provide  that  the 
executor  shall  exercise  the  power,  and  in 
that  case  the  provision  of  the  mortgage  suf- 
ciently  designates  the  person  to  be  charged 
with  this  duty.  Yount  v.  Morrison,  109 
N.  C.  520,  is's.  E.  Rep.  892. 

1  Morris  v.  McKnight,  1  N.  Dak.  266,  47 
N.  W.  Rep.  375  ;  Hayes  i:  Frey,  54  Wis.  503, 
11  N.  W.  Rep.  695;  Miller  v.  Clark,  60 
Mich.  162,  26  N.  W.  Rep.  872  ;  Lee  v.  Clarj-, 
38  Mich.  223;  Holcombe  v.  Richards,  38 
Minn.  38,  35  N.  W.  Rep.  714. 

2  Doolittle  V.  Lewis,  7  Johns.  Ch.  45,  11 
Am.  Dec.  389 ;  Averill  v.  Taylor,  5  How. 
Pr.  476  ;  Sloan  v.  Frothiugham,  65  Ala. 
593;  Hayes  v.  Frey,  54  Wis.  503,  11  N.  W. 
Rep.  695;  Holcombe  v.  Richards,  38  Minn. 
38,35  N.  W.  Rep.  714. 

3  Bush  V.  Sherman,  80  111.  160;  Cohoes 
Co.v.  Goss,  13  Barb.  137;  Slee  v.  Manhat- 
tan Co.  1  Paige,  48 ;  Bergen  v.  Bennett,  1 
Caines  Cas.  1,  11  Am.  Dec.  281  ;  Wilson  i;. 
Troup,  2  Cow.  195,  236,  14  Am.  Dec.  458 ; 
Pease  r.  Pilot  Knob  Iron  Co.  49  Mo.  124; 
Pickett  V.  Jones,  63  Mo.  195;  Harnickell 
V.  Orndorff,  35  Md.  341  ;  McGuire  v.  Van 
Pelt,  55  Ala.  344. 

In  Michigan,  §  1742 ;  Minnesota,  §  1743 ; 
North  Dakota  and  South  Dakota,  §  1752  (i, 
Conip.  Laws,  §  5412 ;  and  Wisconsin, 
§  1763,  the  recording  of  a  mortgage  and 
an  assignment  of  it  are  made  a  condilion 


precedent  to  a  foreclosure  by  advertise- 
ment. See,  also,  Morris  v.  McKnight,  1  No. 
Dak.  266,  47  N.  W.  Rep.  375  ;  Backus  v. 
Burke,  48  Minn.  260,  51  N.  W.  Rep.  284; 
Burke  v.  Backus  (Minn.),  53  N.  W.  Rep. 
458. 

Where  an  assignment  of  a  mortgage  had 
been  executed  by  an  attorney,  it  is  not 
necessary  for  his  letters  of  attorney  to  be 
recorded,  because  the  statute  only  requires 
the  morigage  and  assignments  to  be  re- 
corded. Benson  v.  Markoe,  41  Minn.  112, 
42  N.  W.  Rep.  787. 

Where  a  mortgage  was  executed  to 
"Beecher  &  Dean,"  and  subsequently  one 
Charles  R.  Dean  assigned  his  interest  in 
such  mortgage  to  another,  the  assignment 
being  duly  recorded,  as  were  also  two  sub- 
sequent assignments,  and  the  last  assignee 
proceeded  to  foreclose  by  advertisement,  it 
was  held  that  the  record  did  not  show  that 
the  legal  title  to  the  mortgage  had  never 
passed  from  "  Beecher  &  Dean,"  and  such 
foreclosure  was  void  on  the  face  of  the 
record.  The  use  of  a  firm  name  is  not  in 
itself  sufficient  to  establish  the  identity  of 
the  individual  partners.  Morris  v.  Mc- 
Knight, 1  N.  Dak.  266,  47  N.  W.  Rep.  375  ; 
Morrison  if.  Mendenhall,  18  Minn.  232. 

4  Holmes  V.  Turner's  Falls  Lumber  Co. 
150  Mass.  535,  23  N.  E.  Rep.  305. 

6  Slee  V.  Manhattan  Co.  1  Paige,  48. 
667 


§  1787.]        POWER   OF    SALE   MORTGAGES   AND    TRUST   DEEDS. 

rence  of  the  raortgagor  the  time  of  payment  is  extended,  or  the 
terms  are  otherwise  changed,^  the  power  remains  unimpaired.  The 
assignment  of  the  note  does  not  prevent  a  foreclosure  in  the  name 
of  the  mortgagee  for  the  use  of  the  assignee.^  But  if  the  mortgagee 
commences  the  advertisement  under  the  power,  and  before  the  sale 
assigns  the  mortgage  to  a  third  person,  who  continues  the  advertise- 
ment in  the  mortgagee's  name  instead  of  advertising  anew,  the  sale 
is  irregular  and  void.^  An  assis^nment  which  is  not  effectual  either 
at  common  law  or  by  statute,  as,  for  instance,  one  made  by  an  in- 
formal indorsement  without  any  transfer  of  the  note,  does  not  operate 
to  pass  the  power  of  sale  to  the  assignee,  but  leaves  it  still  in  the 
mortgagee.* 

The  power  of  sale  is  usually  vested  in  the  mortgagee,  "  his  ex- 
ecutors, administrators,  or  assigns."  If  it  is  not  given  to  his  "  as- 
signs," then  one  who  has  taken  a  transfer  of  the  mortgage  cannot 
exercise  it,^  although  the  deed  empowers  the  "  assigns,"  amongst 
others,  to  give  a  receipt  for  the  purchase-moneys  obtained  by  such 
sale.^  Where  the  power  is  to  "  assigns,"  a  devisee  of  the  mort- 
gagee can  exercise  it,  though  he  cannot  if  these  words  are  omitted.''' 
The  word  "  assigns  "  is  not  regarded  as  meaning  merely  the  persons 
whom  the  mortgagee  may  during  his  lifetime  make  such,  but  as 
meaning  as  well  those  whom  he  or  his  transferee  may  make  such 
by  will.^ 

An  assignee  of  part  of  the  mortgage  notes  with  an  assignment 
of  the  mortgage,  or  so  much  thereof  as  secures  the  payment  of  the 
notes  assigned,  has  an  implied  right  to  avail  himself  of  the  power 
of  sale  to  collect  the  notes  assigned.^ 

An  assignee  to  whom  a  mortgage  has  been  assigned  solely  for 

1  Young  V.  Roberts,  15  Beav.  558.  tion,  and  to  uo  one  else,    its   assigns   not 

-  Bourland  v.  Kipp,  55  111.  376.  being    named,    is    void.      Frostbnrg    Mut. 

3  Niles   V.   Ransford,    1    Mich.    338,   51  Build.  Asso.  v.  Lowdermilk,  50  Md.  175; 

Am.  Dec.  95  ;  Bausman  v.  Kelley,  38  Minn.  Queen  City  Build.  Asso.  v.  Price,  53  Md. 

971,  36  N.  W.  Rep.  333,  8  Am.  St.  Rep.  397. 
661.  6  Bradford    v.    Belfield,    2     Sim.     264; 

*  Hamilton  v.  Lubukee,   51  111.   415,  99  Townsend  v.  Wilson,  1  Barn.  &  Aid.  608; 

Am.  Dec.  562;  Dameron  v.  Eskridge,  10-1  Woonsocket  Inst,  for  Sav.  v.  Am.  Worsted 

N.  C.  621,  10  S.  E.  Rep.  700.  Co.  13  R.  I.  255. 

5  Dolbear  v.  Norduft,   84  Mo.  619.     In        In  England  ib  is  now  a  common  precau- 

Maryland,  where  it  is  held  that  a  power  of  tion  to  vest  the  power  of  sale  also  in  all 

sale   given  to  a  corporation  as  mortgagee  persons  entitled  to   give  a  receipt  for  the 

cannot  be  exercised,  yet  an  assignee  of  the  mortgage  debt.     Fisher's  Mortg.  p.  504. 
mortgage  who  is  a  natural  person  may  ex-        "^  Cooke  v.  Crawford,  13  Sim.  91  ;  Mac- 

ercise  the   power  when  this  is  in  express  donald  v.  Walker,  14  Beav.  556;  Wilson  v. 

terms  given  to  the  corporation  and  its  as-  Bennett,  5  De  G.  &  S.  475. 
signs.     Chilton  v.  Brooks,  71  Md.  445,  18        »  Titley  r.  Wolstenholme,  7  Beav.  425. 
Atl.  Rep.  868.     But  a  power  to  a  corpora-        ^  Brown  v.  Delaney,  22  Minn.  349. 

668 


CONSTRUCTION  OF  POWER.  [§§  1788, 1789. 

the  purpose  of  collecting  the  mortgage  debt  may  exercise  the  power 
of  sale.^  So  long  as  the  power  be  exercised  by  the  legal  holder  of 
the  mortsacre,  it  is  not  material  whether  he  exercises  it  for  his  own 
benefit  or  that  of  some  other  party  in  interest.^  If  upon  the  face 
of  the  assignment  it  appears  that  it  has  been  assigned  only  in  part, 
the  mortgagee  and  assignee  should  join  in  the  sale.^ 

1788,  In  respect  to  the  assignment  of  deeds  of  trust  a  dif- 
ferent rule  prevails,  however.  The  trustee  is  a  mere  instrument 
to  execute  the  purpose  of  the  grantor,  and  he  is  clothed  with  the 
legal  estate  merely  for  this  purpose.  The  trust  is  a  confidence 
which  cannot  be  delegated  except  as  provided  by  the  persons  who 
created  the  trust ;  and  a  provision  for  this  purpose  must  be  express 
and  beyond  question.  Therefore  it  has  been  held  that  a  trust  deed 
to  two  persons,  or  the  survivor  of  them,  and  the  heirs  and  assigns 
of  the  survivor,  could  not  be  executed  by  another  to  whom  the  sur- 
vivor conveyed  the  property,  as  the  word  "assigns"  does  not  with 
certainty  mean  a  person  whom  the  trustee  might  make  such  by  his 
own  act  during  his  life.* 

1789.  An  equitable  assignee  cannot  execute  the  power.^  The 
power  must  be  strictly  pursued,  and  it  is  presumed  that  the  delega- 
tion of  the  power  is  induced  by  trust  and  confidence  in  the  trustee 
or  mortgagee.  If  the  mortgage  does  not  provide  that  an  assignee 
may  execute  the  power,  the  law  does  not  confer  it  upon  the  assignee, 
and  it  can  only  be  exercised  by  the  mortgagee.^  It  may  be  exer- 
cised by  an  assignee  if  the  power  so  provides,  and  the  assignee  is 
the  legal    assignee   of  the  debt  and   mortgage.'^     In    some  States, 

^  Kussum  V.  Wanser,  53  Md.  92;    Buell  ment.     A  more  formal  assignment  of  the 

V.  Underwood,  65  Ala.  285.  mortgage    was   executed  a  few  days  later 

-  Lee  V.  Clary,  38  Mich.  223.  and  recorded.      It  was  held  that  such  as- 

2  Wilson  V.  Troup,  2  Cow.  195,  231,  14  signee,  either  as  the  successor  of  the  former 

Am.  Dec.  458.  trustee,  or  in  virtue  of  the  assignment  of 

*  Missouri :     Whittlesey    v.  Hughes,   39  the  mortgage  debt  to  him,  was  fully  author- 
Mo.  13  ;  McKnight  v.  Wimer,  38  Mo.  132.  ized  to  exercise  the  power  of  sale.    Western 
And  see  I'ickett  v.  Jones,  63  Mo.  195,  199.  Md.  K.  R.  Co.  v.   Goodwin  (Md.),  26    Atl. 
South   Carolina:   Johnson    v.   Johnson,   27  Rep.  319. 
S.  C.  309,  3  S.  E.  Rep.  606.  See  act   validating   sales    under    powers 

In  Maryland,  however,  a  different   rule  of  sale  made  by  persons  not  authorized  by 

prevails.      Property   was   mortgaged   to   a  tlie  terms  of  the  power.     Laws   1890,  ch. 

trustee  to  secure  a  debt  evidenced  by  a  note,  187. 

the  mortgage  containing  a  power  of  sale  in  ^  Dameron  v.  Eskridge,  104  N.  C.  621, 

favor  of  the  trustee,  his  successors  and  as-  10  S.  E.   Rep.  700;  Williams  v.  Tcachey, 

sign.s,  in  case  of  default.     Subsequently,  the  85  N.  C.  402. 

trustee  wishing  to  be  released,  another  was  ®  Flower  i;.  Elwood,  66  111.  438 ;  Wilson 

appointed  his  successor,  the  mortgage  as-  v.  Spring,  64  111.  14. 

signed  to  him   by  a  writing   on  the   back  ^  Heath  v.  Hall,  60  111.  344  ;  Dill  v.  Sat- 

thereof,  and  the  note  assigned  by  indorse-  terfield,  34   Md.  52;  Berry  v.  Skinner,  30 

669 


§  1790.]        POWER    OF   SALE   MORTGAGES   AND   TRUST    DEEDS. 

where  the  mortgage  is  regarded  merely  as  a  lien,  a  legal  assignee 
of  the  debt  without  a  formal  assignment  of  the  mortgage  may  ex- 
ercise the  power  of  sale  in  his  own  name.  But  if  the  debt  be  not 
evidenced  by  an  instrument  assignable  by  law,  nor  in  any  way  ex- 
cept b}^  the  mortgage  itself,  which  is  not  assignable  except  in  eqult}^ 
then  the  mere  assignment  of  the  mortgage  passes  only  an  equitable 
title  to  the  debt,  and  the  power  does  not  pass  to  the  assignee,  and 
can  be  executed  only  by  the  mortgagee  himself.^  An  assignee  of 
the  note  alone  cannot  execute  the  power.^  If  tiie  debt  is  of  such 
a  character  that  it  may  be  legally  assigned,  so  as  to  vest  the  legal 
title  in  the  assignee,  then  the  assignee  himself  must  execute  the 
power.^  The  legal  assignee  may  make  the  sale  in  his  own  name, 
but  the  equitable  assignee  cannot.*  Such  assignee  can  avail  him- 
self of  his  assignment  only  by  proceedings  in  equity.^ 

1790.  A  power  in  a  mortgage  or  a  trust  deed  to  two  or  more 
jointly  must  be  executed  by  all  the  donees.  But  if  it  provide 
that  the  grantees  "  or  either  of  them  "  may  sell,  then  the  power 
may  be  exercised  by  one  alone.^  It  is  the  better  practice,  however, 
for  the  persons  having  a  joint  interest  in  a  mortgage  to  join  in  the 
execution  of  the  power  of  sale."  If  there  be  two  or  more  joint 
mortgagees  or  trustees,  the  power  should  be  extended  to  the  sur- 
vivors and  survivor  of  them,  and  the  executors  or  administrators  of 
such  survivor,  or  their  or  his  assigns.  When  the  deed  is  without 
this  provision  for  survivorship,  on  the  death  of  one  of  the  grantees 
his  executor  or  administrator  must  join  in  the  execution  of    the 

Md.  573;  Daraeron  r.  Eskridge,  104  N.  C.  *  Cushman   v.    Stone,   69    111.  516.      In 

621,  10  S.  E.  Kep.  700.  Alabama,  Code,  §  1844,  a  power  of  sale  is 

In  Alabama  the  Cude,  §   1S44,  provides  declared  to  be  a  part  of  the  security,  and 

that  the  assignee  of  a  mortgage,  in  which  may  be  executed   hy  any  person   who,   by 

is  given  the  grantee  the  power  to  sell,  may  assignment  or  oilierwise,   becomes  entitled 

execute  the  mortgage  notwithstanding  the  to  the  money  thereby  secured.     Under  this 

assignment  may  not  contain  apt  words  to  provision,  apt  words  of  conveyance  are  not 

convey  the  legal^  title.     Johnson  v.  Beard,  necessary  to  entitle  the  assignee  of  a  mort- 

93  Ala.  96,   9   So.  Rep.  535 ;    Martinez  v.  gage  to  exercise  a  power  of  sale.     Martinez 

Lindsay,    91    Ala.   334,    8    So.    Eep.    787;  v.  Lindsay,  91  Ala.  334,  8  So.  Rep.  787; 

Wildsmith  i-.  Tracy,  80  Ala.  258;  Buell  v.  Wildsmith  v.  Tracy,  80  Ala.  258;  Buell  v. 

Underwood,  65  Ala.  285;  McGuire  u.  Van  Underwood,  65  Ala.  285;  ]\IcGuire  v.  Van 

Pelt,  55  Ala.  344.  Pelt,  55  Ala.  344. 

1  Mason  v.  Ainsworth,  58  111.  163;  Ham-  &  Olds  v.  Cummiugs,  31  111.  188;  Mason 

ilton  V.  Lubukee,  51  111.  415.     See  §  826.  v.  York  &  Cumberland  R.  R.  Co.  52  Me. 

'■^  Cushman  v.  Stone,  69  111.  516,  99  Am.  82. 

Dec.  562.                                             ,  6  Loveland   v.  Clark,  11    Colo.   265,    18 

a  Pardee  v.  Lindley,  31  111.  174,  83  Am.  Pac.  Rep.  544. 

Dec.  219;    Strother  v.  Law,  54   111.  413;  "  Wilson  v.  Troup,  2  Cow.  195,  331,  14 

Sargent  v.  Howe,  21  111.   148;    Wilson  v.  Am.  Dec.  458;  White  y.  Watkins,  23  Mo. 

Troup,  2  Cow.  195,  197,  14  Am.  Dec.  458  ;  423 ;  Powell  v.  Tattle,  3  N.  Y.  396. 
Vansant  v.  AUmon,  23  111.  30. 

670 


CONSTRUCTION   OF   POWER.  [§  1791. 

power;  ^  unless  it  appears  otherwise  from  the  deed  that  the  interest 
was  a  joint  one,  and  that  the  intention  was  that  the  security  with 
all  the  advantage  of  the  power  should  vest  in  the  surviving  mort- 
gagee.^ 

The  execution  of  the  trust  may  be  confided  to  one  person  alone, 
or  to  two  or  more  jointly,  or  to  two  or  more  jointly  and  severally.  If 
if  be  to  several  jointly,  all  must  act  in  the  execution  of  it;  but  if  it 
be  to  them  severally,  or  to  either  of  them,  then  one  alone  may  exe- 
cute the  trust.  The  deed  itself  is  the  authority  for  the  execution 
of  the  trust,  and  it  may  contain  such  provisions  about  the  execution 
of  the  trust  as  the  parties  see  fit  to  make.^  If  the  trust  or  power 
be  given  to  two  or  more,  it  is  joint  unless  there  be  words  added 
which  make  it  several  also,  or  which  show  the  grantor's  intention 
to  confide  the  execution  of  it  to  any  number  less  than  the  whole. 
But  upon  the  death  of  one  or  more  of  several  trustees,  under  a  deed 
of  trust,  the  survivors  take  the  entire  legal  estate,  and  may  execute 
the  trust,  although  there  be  no  express  provision  to  this  effect  in  the 
deed.*  Upon  the  death  of  the  last  trustee  the  title  vests  in  his  heir, 
until  the  appointment  of  a  new  trustee  by  the  court.^  The  estate 
is  generally  regarded  as  vesting  in  the  new  trustee  by  the  appoint- 
ment without  a  conveyance.'^ 

1791.  A  first  and  second  mortgagee  may  concur  in  a  sale.  In 
a  case  where  this  course  was  pursued,  objection  was  taken  that  the 
title  under  such  sale  was  not  marketable,  because  it  was  not  clear 
under  which  power  the  property  had  been  sold ;  but  the  Master 
of  the  Rolls  said  that,  as  either  mortgagee  alone  might  have  sold 
under  his  power,  there  was  no  reason  why  they  could  not  combine 
together  and  sell.'^ 

A  trustee  holding  two  deeds  of  trust  executed  by  the  same  per- 
son for  the  benefit  of  the  same  creditor,  each  deed  being  for  an  un- 
divided half  of  the  land,  should  sell  the  whole  together  under  both 
deeds,  and  not  an  undivided  half  under  each  deed  at  different  times,  as 
the  presumption  is  that  the  property  would  command  a  better  price 
if  sold  entire.^ 

1  Towiiscnd  i>.  Wilson,  3  Madd.  261.  5  Qreenleaf    v.    Queen,    1    Peters,    138; 

-  Hind  V.  J'oole,  1  Kay  &  J.  383,  1  Jur.  Maulden  v.  Armistead,  14  Ala.  702,  708. 

(N.  S.)  371.  6  Duffy  v.  Calveit,  6  (Jill.  487  ;    Goss  v. 

3  Gricine  v.  Cullen,  23  Gratt.  266;   Tay-  Sin{^leton,  2  Head,  67;  Gibbs  v.  Marsh,  2 

lor  V.  Dickinson,  15  luwa,  483.  Met.  243,  253. 

*  Hannah    v.   Carrin{;ton,    18    Ark.    85;  '^  M'Carogher    v.    Whieldou,   34    Beav. 

Franklin  v.  O.sgood,  14  Johns.  527.  107. 

8  Coffman  v.  Scoville,  86  111.  300. 

671 


§  1792.]        POWER   OF   SALE   MORTGAGES   AND   TRUST   DEEDS. 

IV.  Revocation  or  Suspension  of  the  Power. 

1792.  The  death  of  the  mortgagor  does  not  revoke  a  power 
of  sale.i  This  being  coupled  with  an  intei'est  in  the  estate  cannot 
be  revoked  or  suspended  by  the  mortgagor.  Of  course,  after  his 
death  the  power  cannot  be  exercised  in  his  name,  but  the  authority 
to  execute  it  in  the  name  of  the  grantee  continues.  The  execution 
of  the  power  is  the  grantee's  act  by  virtue  of  the  power.  It  is  not 
a  mere  power  of  attorney.^  A  power,  however,  to  be  irrevocable, 
must  be  coupled  with  an  interest  in  the  pi'operty  itself,  and  not 
merely  in  the  proceeds  resulting  from  the  execution  of  the  power. 
Chief  Justice  Marshall  on  this  point  said :  "  We  hold  it  to  be  clear 
that  the  interest  which  can  protect  a  power  after  the  death  of  a 
person  who  creates  it  must  be  an  interest  in  the  thing  itself.  In 
other  words,  the  power  must  be  ingrafted  on  an  estate  in  the 
thing."  3 

In  Texas,  although  the  general  principle  is  recognized  that  such 
a  power  cannot  be  revoked,  yet  the  exercise  of  it  is  regarded  as  in- 
consistent with  the  statutes  respecting  the  settlement  of  the  estates 
of  deceased  persons,  which  require  liens  upon  their  property  to  be 
enforced  in  the  probate  court,  and  which  give  to  certain  classes 
of  claims  against  a  decedent's  estate  priority  of  payment  over  a 
debt  secured  by  mortgage  or  other  liens.  Therefore,  upon  the 
death  of  the  mortgagor  or  grantor  in  a  trust  deed,  or  of  a  pur- 
chaser from  either,  while  holding  the  equity  of  redem.ption,  the 
power  cannot  be  exercised.^     It  then  secures  the  creditor  priority 

1  Wright  V.  Eose,  2  S.  &  S.  323;  Corder  Mansfield,  6  Conn.  559,  16  Am.  Dec.  76, 
V.  Morgan,  18  Ves.  344;  Hunt  v.  Rous-  for  a  case  of  a  naked  power  from  a  debtor 
manier,  8  Wheat.  174,  2  Mason,  244;  Con-  to  creditor.  Pardee  v.  Lindley,  31  111.  174, 
ners  v.  Holland,  113  Mass.  50;  Varnum  v.  83  Am.  Dec.  219. 

Meserve,  8  Allen,  158  ;  Brewer  y.  Winches-  ^  Hunt    v.   Rousraanier,   8    Wheat.   174. 

ter,  2   Allen,  389  ;    Bergen  v.  Bennett,  1  And   see  Lockett  v.  Hill,   1    Woods,  552  ; 

Caines  Cas.  1,  2  Am.  Dec.  281  ;  Hodges  v.  Coney  v.  Sanders,  28  Ga.  511  ;  Lathrop  v. 

Gill,  9   Bax.  378;    White  v.  Stephens,  77  Brown,  65  Ga.  312;    Miller  v.  McDonald, 

Mo.  452;  Hudgins  i-.  Morrow,  47  Ark.  515,  72   Ga.  20;    AVilkins  v.  McGehee,  86  Ga. 

2  S.  W.  Rep.  104;  More  v.  Calkins,  95  Cal.  764,  13  S.  E.  Rep.  84  ;  Johnson  v.  Johnson, 

435,  30    Pac.    Rep.    583 ;    Wilkins    v.   Mc-  27  S.  C.  309,  3  S.  E.  Rep.  606. 

Gehee,  86  Ga.  764,  13  S.  E.  Rep.  84.  4  Robertson  v.  Paul,  16  Tex.  472  ;  Bu- 

2  Strother  v.  Law,  54  111.  413;  Collins  chanan  v.  Monroe,  22  Tex.  537;  Black  v. 
V.  Hopkins,  7  Iowa,  463;  Berry  v.  Skinner,  Rockmore,  50  Tex.  88;  Abney  v.  Pope,  52 
30  Md.  567  ;  Hyde  v.  Warren,  46  Miss.  13,  Tex.  288;  Rogers  v.  Watson,  81  Tex.  400, 
29;  Beatie  v.  Butler,  21  Mo.  313,  64  Am.  17  S.  W.  Rep.  29.  The  latter  case  shows 
Dec.  234;  De  Jarnette  v.  De  Giverville,  56  that,  if  administration  is  not  taken  within  the 
Mo.  440,  448 ;  Bradley  v.  Chester  Valley  time  limited,  the  mortgage  or  lien  becomes 
R.  R.  Co.  36  Pa.  St.  141,  151;  Bell  v.  prior  to  other  claims  against  the  estate.  So 
Twilight,  22  N.  H.  500.     Sec  Mansfield  v.  in  Georgia:  Lathrop  v.  Brown,  65  Ga.  312. 

672 


REVOCATION   OR   SUSPENSION   OF   THE   POWER.      [§§  1793-1794. 

over  such  claims  against  the  debtor's  estate  as  by  the  statute  he  is 
entitled  to  in  the  due  course  of  administration.  Expenses  of  last 
sickness,  of  administration  and  management  of  the  estate,  allow- 
ances in  lieu  of  homestead  and  other  property  exempt  from  forced 
sale,  and  the  homestead  right  itself,  take  precedence  of  the  mortgage 
debt.i  Except  in  case  the  wife  has  joined  in  the  mortgage,  the 
property  cannot  be  set  aside  to  the  widow  or  children,  as  exempted 
or  appropriated  to  make  up  the  allowances  made  in  lieu  of  ex- 
empted property,  until  the  debts  secured  are  first  discharged.^ 

1793.  The  insanity  of  the  mortgagor,  occurring  after  the  mak- 
ing of  the  mortgage,  cannot  of  course  have  any  greater  effect  in 
revoking  or  suspending  the  power  of  sale  than  his  death  would 
have.3  Neither  does  an  application  by  a  guardian  or  committee  of 
the  lunatic,  for  an  order  to  sell  the  mortgaged  premises  for  the 
benefit  of  his  creditors,  have  any  effect  to  deprive  the  mortgagee  of 
this  summary  means  of  realizing  his  claim.*  Of  course,  if  the 
mortgagee  or  any  one  else  takes  an  unjust  and  improper  advantage 
of  such  condition  of  the  mortgagor,  this  will  be  ground  for  setting 
aside  the  sale.^ 

1793  a.  Neither  does  the  bankruptcy  of  the  mortgagor  affect 
the  mortgagee's  authority  to  execute  the  power,  either  in  the 
mortgagor's  name  and  as  his  attorney  or  in  the  mortgagee's  own 
name  ;  for  the  assignee  takes  subject  to  the  rights  of  the  mortga- 
gee.^ 

1794.  In  some  States  where,  by  statute  or  adjudication,  a  mort- 
gage is  regarded  as  a  mere  security  for  debt,  passing  no  title  or 
estate  to  the  mortgagee,  a  power  of  sale  is  regarded  as  not  coupled 
with  an  interest,  and  it  is  revoked  and  rendered  incapable  of  execu- 
tion by  the  death  of  the  mortgagor.^  In  Georgia,  however,  the 
power  of  sale  is  regarded  as  coupled  with  an  interest,  and  is  irrevo- 
cable, just  the  same  as  it  is  where  the  common  law  doctrine,  that 
the  mortgage  conveys  the  legal  estate,  still  prevails.^ 

1  McLane  u.  Paschal,  47  Tex.  365  ;  Batts  *  Berry  v.  Skinner,  30  Md.  567;  Davis 
i;.  Scott,  37  Tex.  59.     The  allowance  for    v.  Lane,  10  N.  H.  156. 

homestead  is  not  to  exceed  $5,000.     Thomp-  ^  Encking  v.  Simmons,  28  Wis.  272. 

son  on  Homesteads,  §611.  ^See,  also,  §§324-  6  Hall   v.  Bliss,  118  Mass.  554,  19  Am. 

328  of  same.  Bep.  476;  Dixon  v.  Ewart,  3  Meriv.  321 ; 

2  R.  Civ.  Stat.  1889,  art.  2000.  Story  on  Agency,  §  482. 

3  Enckingi-.  Simmons,  28  Wis.  272;  Van  "^  Johnson  v.  John.son,  27  S.  C.  309,  3 
Meter  v.  Darrah  (Mo.),  22  S.  W.  Rep.  30;  S.  E.  Rep.  606;  Darrow  v.  St.  George,  8 
Meyer  v.  Kuechler,  10  Mo.  App.  371  ;  Be-  Colo.  592,  9  Pac.  Rep.  791. 

vin  V.  Powell,  83  Mo.  365,  11  Mo.  App.  216  ;  ®  Calloway  v.  People's  Bank  of  Bellcfon- 
Laughlin  v.  Hibben,  129  Ind.  5,  27  N.  E.  taine,  54  Ga.  441.  See  §  1786.  In  this 
Rep.  753.  case  the  subject  is  ably  considered  by  Mr. 

VOL.  II.  43  673 


§§  1795, 1796.]     POWER  of  sale  mortgages  and  trust  deeds. 

1795.  A  power  may  be  modified  and  extended  without  revok- 
ing it.  A  mortgage  deed  contained  a  power  of  sale  providing  that 
if  default  should  be  made  in  payment  of  the  interest,  or  any  part 
of  it,  for  a  month  after  it  became  due,  or  in  the  payment  of  the 
principal  on  the  appointed  day,  then  the  mortgagee  might  sell. 
After  it  became  due  he  called  for  payment,  and  the  mortgagor  ar- 
ranged with  other  parties  for  a  loan  of  the  money  upon  an  assign- 
ment of  the  mortgage,  which  was  executed  with  a  recital  that  in 
the  mortgage  "a  power  of  sale  is  contained  for  the  better  securing 
of  the  principal  sum  and  interest,  but  the  said  power  has  not  been, 
and  is  not  intended  to  be,  exercised,"  and  reciting  the  calling  in  of 
the  mortgage  moneys  and  the  mortgagor's  arrangement  with  the 
assignees  to  loan  the  amount.  The  assignment,  which  was  by  an 
indenture  executed  by  all  the  parties,  confirmed  the  moneys  "  and 
all  powers  and  remedies  for  recovering  the  same  sums  respectively," 
and  conveyed  the  estate  in  fee  subject  to  redemption.  The  time 
of  payment  was  extended  seven  years,  and  the  assignees  cove- 
nanted that  no  sale  should  be  made  without  three  months'  notice. 
There  was  a  power  of  sale  to  arise  upon  default.  On  account  of 
intervening  incumbrances  it  was  desirable,  on  a  subsequent  default, 
to  sell  under  the  power  in  the  original  mortgage  rather  than  that  in 
the  assignment.  It  was  held  that  the  recitals  were  not  intended  to 
extinguish  the  original  power,  but  only  to  modify  and  postpone  the 
exercise  of  it;  and  that  a  sale  could  be  made  under  it.^ 

1796.  A   conveyance   by  the    mortgagee    of    a    part    of    the 

Justice  McCay:  "Our  blended  system  of  gage  as  only  a  security,  and  uniformly  rec- 
law  and  equity  makes  of  a  mortgage  what  oguize  tlie  property  to  belong  to  the  mort- 
it  in  fact  is  in  practice,  notwithstanding  gagor,  that  the  whole  doctrine  of  powers  to 
the  formal  rules  of  law.  Neither  this  court  sell  attached  to  a  mortgage  is  expounded 
nor  the  Code  has  said  that  the  mortgagee  and  announced."  In  a  previous  case  in  the 
has  no  interest.  The  language  is,  it  passes  District  Court  of  the  United  States  for 
no  title.  This  was  true  in  equity  in  Eng-  Northern  Georgia,  Locket  v.  Hill,  1  Woods, 
land,  and  yet  a  mortgagee  was  constantly  552  (1873),  the  judge,  in  view  of  the  Code 
recognized  as  having  an  interest,  and  an  in-  and  decisions  of  the  State,  that  a  mortgage 
terest,  too,  in  the  land.  So  far  as  that  in-  passes  no  title,  and  is  only  a  security  for  a 
terest  was  concerned,  he  was  treated  as  a  debt,  argued  that  the  power  of  sale  is  not 
purchaser,  and  not  as  a  general  creditor,  coupled  with  an  interest,  but  is  a  collateral 
even  by  judgment.  .  .  .  We  see  nothing  in  power  only,  and  expires  with  the  life  or 
this  declaration  of  the  Code,  that  a  inort-  bankruptcy  of  the  mortgagor, 
gage  is  only  a  security,  that  negatives  the  ^  Boyd  v.  Petrie,  L.  R.  7  Ch.  App.  385. 
idea  that  a  power  to  sell  in  a  mortgage  is  a  Though  in  England  it  is  usual  in  the  trans- 
power  coupled  with  an  interest.  The  two  fer  of  a  mortgage  to  provide  expressly  for 
ideas  are  just  as  consistent  and  harmoni-  the  continuance  of  the  power,  this  is  not 
ous  as  the  idea  of  the  English  Chancery  essential,  as  a  general  assignment  of  all  cov- 
Court,  as  to  the  nature  of  a  mortgage,  was  enants  and  securities  will  carry  it.  Young 
with  a  power  of  sale.  Indeed,  it  is  mainly  in  v.  Roberts,  15  Beav.  558. 
chancery  courts,  all  of  which  treat  a  mort- 

674 


REVOCATION   OR   SUSPENSION   OF   THE   POWER.  [§  1797. 

premises  is  no  waiver  of  his  right  to  sell  under  the  power.  A 
mortgagee,  under  a  mistaken  belief  that  he  was  the  absolute 
owner,  having  conveyed  a  part  of  the  mortgaged  premises  by 
deed  with  covenants  of  warranty,  was  held  nevertheless  to  possess 
the  right  to  foreclose  the  mortgage  under  a  power  of  sale,  because 
his  conveyance  did  not  amount  to  an  assignment  of  the  mortgage, 
and  the  purchaser  took  the  title  subject  to  the  mortgage.^  If  he 
should  himself  become  the  purchaser  under  the  power  of  sale,  he 
would  be  estopped  to  claim,  as  against  his  grantee  under  his  deed 
of  warranty,  the  land  so  conveyed  by  him.  A  conveyance  in  the 
same  way  of  the  whole  estate  would  doubtless  be  held  to  be  an  as- 
signment of  the  mortgage  whicli  would  carry  with  it  the  power. 
Neither  does  a  mortgagee  waive  his  right  to  sell  by  an  entry  to 
foreclose,  and  the  taking  of  rents  and  profits  insufficient  to  pay  the 
debt.2  The  power  to  sell  generally  continues  so  long  as  the  debt 
remains  unpaid. 

1797.  The  right  to  sell  under  a  power  is  suspended  by  the 
mortgagor's  bringing  a  bill  to  redeem,  in  which  he  offers  to  pay 
what  is  due,  after  he  has  given  proper  notice  of  the  pendency  of  his 
bill ;  and  if  such  notice  has  been  filed  in  the  registry  of  deeds  a  sub- 
sequent purchaser  at  a  sale  under  the  power  cannot  maintain  an 
action  to  recover  the  land.^  During  the  pendency  of  a  bill  to  re- 
deem by  the  mortgagor,  charging  usury  and  asking  for  an  account- 
ing, a  power  of  sale  cannot  be  properly  exercised;  and  if  a  sale  is 
made  under  it,  this  should  be  set  aside  and  redemption  allowed  on 
payment  of  the  amount  actually  due.^  The  pendency  of  a  bill  to 
redeem  by  a  subsequent  incumbrancer  would  not,  it  would  seem, 
suspend  the  power  to  sell ;  ^  for  in  this  w^ay  the  very  object  of  the 
power,  which  is  to  afford  a  speedy  remedy  without  the  dela}'  of  a 
suit,  would  be  defeated.  The  incumbrancer  may  protect  himself 
by  purchasing  at  the  sale;  or  by  enforcing  his  claim  upon  the  sur- 
plus proceeds  of  the  sale,  when  his  title  can  be  fully  investigated, 
without  keeping  the  mortgage  creditor  waiting  for  his  money.  But 
when  the  first  mortgagee  has  refused  a  tender  of  the  amount  due 
on  his  mortgage  from  a  subsequent  mortgagee,  who  thereupon  has 
brought  a  suit  to  redeem,  and  the  first  mortgagee  proceeds  to  sell 
under  his  power,  upon  a  primd  facie  case  that  the  subsequent  mort- 
gagee is  entitled  to  redeem,  the  first  mortgagee  may  be  restrained 

1  Wilson  V.  Troup,  2  Cow.  195,  14  Am.  *  Ryan  v.  Newcomb,  125  111.  91,  IG  N.  E. 

Dec.  458.  Rep.  878. 

'■^  Montague  v.  Dawes,  12  Allen,  397.  *  Atlams  v.  Scott,  7  W.  R.  213;  Holland 

3  Clark  V.  Griffin,  148  Mass.  540,  20  N.  v.  Citizens'  Sav.  Bk.  16  R.  I.  734,  19  Atl. 

i:.  Rep.  169  ;  Way  v.  Mullett,  143  Mass.  49,  Rep.  654. 

8  N.  E.  Rep.  881.  675 


§§  1798, 1799.]    POWER  of  sale  mortgages  and  trust  deeds. 

from  assigning  bis  mortgage,  and  from  selling  under  it,  until   the 
hearinof  of  the  case  on  the  bill  to  redeem. ^ 

The  power  of  sale  is  not  suspended  for  the  reason  that  the  mort- 
gagee has  resorted  to  a  process  of  garnishment  to  collect  the  mort- 
gage debt.  The  several  remedies  upon  a  mortgage  being  collateral 
and  independent,  the  remedy  under  the  power  of  sale  is  not  af- 
fected by  any  other  proceeding  to  enforce  the  debt,  unless  this  has 
resulted  in  a  partial  or  complete  satisfaction  of  it.^ 

1798.  A  tender  of  the  amount  due  and  payable  upon  a  mort- 
gage, after  breach  of  the  condition  and  before  the  sale,  does  not, 
according  to  the  rule  adopted  in  Massachusetts,  defeat  the  right  to 
sell  under  the  power,  because  the  right  to  sell  attaches  at  once,  and 
as  it  is  a  power  coupled  with  an  interest  it  cannot  be  revoked. 
The  tender  is  merely  the  foundation  for  a  suit  in  equity  for  redemp- 
tion. A  sale  under  the  power,  after  a  tender  made  and  not  ac- 
cepted, transfers  the  legal  title  and  possession  ;  but  the  mortgagor 
may  preserve  his  right  to  redeem  against  a  purchaser  by  giving  him 
notice  before  or  at  the  sale  of  the  tender.  Until  he  is  restored  to 
the  legal  right  of  possession  by  a  decree  of  court  in  equity,  he  can 
neither  maintain  nor  defend  a  writ  of  entry  against  one  claiming 
under  the  mortgage.  The  foreclosure  is  complete  by  the  sale  not- 
withstanding the  tender.  And  unless  the  mortgagor  proceeds  in 
equity  to  redeem,  the  purchaser  is  entitled  to  possession  and  may 
recover  it  by  a  writ  of  entry,  although  he  purchased  with  full 
knowledge  that  after  breach  and  before  the  sale  the  mortgagor  ten- 
dered the  whole  amount  due  under  the  mortgage.^  If,  however,  a 
tender  be  made  at  the  time  stipulated  in  the  condition  of  the 
mortgage,  the  right  to  sell  is  thereby  defeated,  and  a  sale  would 
be  void.^ 

But  after  payment  and  discharge  of  the  mortgage  a  sale  under 
the  power  is  void  and  of  no  effect.^ 

1799.  A  different  rule  is  adopted  in  the  English  courts,  and 
in  some  of  our  state  courts,  which  hold  that  upon  a  tender  at  any 
time  before  the  sale  is  actually  made,  even  after  the  property  has 
been  put  up  at  public  auction,  the  mortgagee  is  bound  to  stop  the 
sale.*^     If  the  mortgagee  refuses  the  tender  and  goes  on  with  the 

1  Rhodes  t;.  Buckland,  16  Beav.  212.  ^  Benson  v.  Markoe,  41   Minn.   112,  42 

2  Benjamin   v.   Loughborough,  31    Ark.    N.  W.  Rep.  787. 

210.  6  Jenkins  v.  Jones,  2  Gif.  99,  6  Jur.  N.  S. 

3  Cranston  v.  Crane,  97  Mass.  459,  93  391  ;  Burnet  v.  Denniston,  5  Johns.  Ch.  35  ; 
Am.  Dec.  106.  And  see  Montague  v.  Cameron  v.  Irwin,  5  Hill,  272,  276.  In 
Dawes,  12  Alien,  397.  New  York  and  Michigan  tlie  lien  is  consid- 

*  §§  886-893.  ered  as  discharged  by  tlie  tender,  so  that  no 

676 


REVOCATION   OR   SUSPENSION   OF  THE   POWER.  [§  1800. 

sale,  the  purchaser  having  knowledge  of  the  circumstances,  the 
court,  instead  of  leaving  the  mortgagor  to  his  remedy  by  bill  to 
redeem,  will  set  aside  the  sale.  In  other  similar  cases  the  court 
will  restrain  a  sale,  and  allow  the  mortgagor  or  other  person  inter- 
ested in  the  equity  to  proceed  with  a  bill  to  redeem.  But  a  mere 
offer  without  an  actual  tender  of  the  amount  due  is  not  sufficient 
to  prevent  a  sale ;  and  the  tender  must  include  costs  as  well  as  in- 
terest.i  A  mortgagor  who  has  notice  of  an  intended  sale,  and  allows 
it  to  proceed  without  obJQction,  cannot  afterwards  show  a  tender, 
or  even  a  payment  in  full  of  the  debt,  and  thereby  defeat  the  title 
of  a  bond  fide  purchaser  who  purchased  in  good  faith  without 
knowledge  of  the  payment  or  tender,  the  mortgage  remaining  un- 
discharged of  record.2  But  payment  extinguishes  the  power  of  sale 
except  as  against  a  mortgagor  or  other  party  in  interest  who  is  es- 
topped to  take  advantage  of  it.^ 

Where  it  is  provided  in  a  deed  of  trust  that  upon  any  default  the 
whole  amount  of  principal  and  interest  shall  be  due  forthwith,  and 
the  trustee  may  thereupon  sell,  the  debtor  is  in  equity  entitled  to 
have  proceedings  for  a  sale  stopped  upon  a  tender  to  the  trustee 
before  sale  of  the  amount  due,  together  with  costs  accrued ;  and  if 
the  trustee  proceeds  nevertheless  to  sell,  the  sale  may  be  set  aside.* 

1800.  The  power  is  not  suspended  by  reason  that  the  mort- 
gagor is  -within  the  lines  of  an  enemy  at  war  with  his  country, 
if  he  voluntarily  absented  himself  from  home  and  became  an  alien 
enemy.s     The  publication  of  notice  in  accordance  with  the  power  is 

valid  sale  can  afterwards  be  made  even  to  their  enforced  absence.     The  other  defend- 

a  6o»a  ^ffe  purchaser.     §893.  ant.  May,   was  only  nominally  interested, 

1  Whitworth  v.  Rhodes,  20  L.  J.  N.   S.  and  had  always  been  within  the  Confeder- 

(Ch.)  10.5.     See   Grugcon  v.   Gerrard,  4  Y.  ate  lines.     But  if,  as  in  this  case,  a  party 

&  C.  119.  voluntarily  leaves  his  country  or  his  resi- 

-  Warner   v.  Blakeman,  36    Barb.    .'JOl,  deuce  for  the   purpose  of  engaging  in  hos- 

afhrincd,  4  Keyes,  487  ;  Merchant  v.  Woods,  tilities  against  the  former,  he  cannot  be  per- 

27  Minn.  396.     See  §§  892,  1450, 1512.  mitted    to   complain  of    legal   proceedings 

•'  Lycoming  F.    Ins.  Co.  v.  Jackson,  83  regularly  prosecuted  against  him  as  an  ab- 

111.    302,    25   Am.   Rep.    386 ;  Redmond    v.  sentee,   on   the    ground  of    his  inability   to 

I'ackenham,  C6  111.434;  Cameron  y.  Irwin,  return  or  to  hold  communication  with  the 

5  Hill,  272.  place  where  the  proceedings  are  conducted." 

*  Whelan  v.  Reilly,  61  Mo.  565  ;  Flower  That  the  existence  of  civil  war  did  not 
V.  Elwood,  66  111.  438.  exempt  property  of  persons  residing  in  the 

*  Ludlow  V.  Ramsey,  II  Wall.  581.  Mr.  rebel  States,  located  in  the  loyal  States, 
Justice  Bradley  said  :  "This  case  differs  from  judicial  process,  and  foreclosure  or  sale 
from  that  of  Dean  y.  Nelson,  10  Wallace,  under  power  of  sale,  for  debts  due  to  citi- 
158,  decided  at  the  present  term.  In  that  zens  of  the  latter  States,  see,  also,  Wash- 
case  Nelson  and  his  wife  were  driven  out  of  ington  University  v.  Finch,  18  Wall.  106,  1 
Memphis  by  a  military  order,  and  were  not  Cent.  L.  J.  66  (1874)  ;  De  Jarnette  v.  De 
permitted  to  return,  and  the  proceedings  to  Giverville.  56  Mo.  440;  Martin  v.  Paxson, 
foreclose  tlieir  property  took  place  during  06   Mo.    260;  Harper   v.   Kly,  56    111.  179; 

677 


§  1800.]        POWER   OF   SALE   MORTGAGES   AND   TRUST   DEEDS. 

binding  and  effectual.  Upon  the  same  principle,  an  alien  enemy 
who  has  voluntarily  absented  himself  from  home  may  be  sued  in 
the  State  of  his  former  residence,  and  is  bound  by  constructive  notice 
in  the  same  manner  as  any  other  non-resident.  The  late  civil  war  in 
this  country  was  attended  with  all  the  consequences  in  this  respect 
that  an  international  or  public  war  would  have  produced.  The  fact 
that  a  mortgagor  was  so  situated  within  the  enemy's  lines  that  he 
could  not  receive  the  notice  of  sale,  or  appear  in  response  to  it,  did 
not  suspend  the  right  of  the  mortgagee  ^o  enforce  payment  of  his 
mortgage  in  accordance  with  its  provisions. ^  In  numerous  cases  it 
would  be  equally  impossible,  for  other  reasons,  for  the  mortgagor  to 
receive  notice  by  publication. 

Aside  from  the  principle  above  stated  as  to  the  right  to  foreclose 
the  property  of  alien  enemies,  the  power  of  sale  in  a  mortgage  or 
trust  deed  being  coupled  with  an  interest  and  irrevocable  may,  at 
any  time  after  the  happening  of  the  contingency  in  which  it  is  to  be 
exercised,  be  executed  without  regard  to  the  circumstances  or  dis- 
abilities of  the  maker  of  it  at  that  time.^  Immediately  upon  the 
happening  of  that  contingency,  it  is  the  legal  and  moral  right  of 
the  creditor  to  have  the  power  of  sale  made  for  his  benefit  executed. 
The  notice  of  sale  required  by  the  power  is  not  for  the  benefit  of 
the  grantor,  in  the  sense  of  a  notice  to  him  of  the  sale  of  the  land  ; 

Thomas  v.  Malione,  9  Busli,  111  ;  Crutchcr  of  these  cases  relate  to  sales  made  by  trus- 

y.  Hold,  4  Bush, 360;  Seymour  v.  Bailey,  tees  under  powers   given    in    trust    deeds 

66  111.   288;  Willard  c.  Boggs,  56  111.  163;  while   the  grantors  were  alien  enemies  in 

Mixer  r.  Sibley,  53  111.  61  ;  Hall  v.  Conn,  the  rebel  States.     In  the  former  case  Mr. 

Mut.  L.  Ins.  Co.  68  111.  357;  Bush  v.  Sher-  Justice  Miller   said:  "The  debt   was   due 

man,  80  111.  160;  Mitchell  y.  Nodaway  Co.  and    unpaid.      The   obligation    which    the 

80  Mo.  257.  trustee  had  assumed  on  a  condition  had  be- 

1  Dorsey  v.  Dorsey,  30  Md.  522,  96  Am.  come  absolute  by  the  presence  of  that  con- 
Dec.  633.  After  the  decision  of  this  case  dition.  If  the  conipl.\inants  had  been  dead, 
the  case  of  Johnson  v.  Kobertson,  34  Md.  the  sale  would  not  have  been  void  for  that 
165,  came  before  the  court,  when,  in  conse-  reason.  ...  If  they  had  been  in  Japan,  it 
quence  of  the  decision  of  the  Supreme  would  have  been  no  legal  reason  for  delay. 
Court  of  the  United  States  in  Dean  v.  Nel-  .  .  .  The  enforced  absence  of  the  complain- 
son,  10  Wall.  158,  the  court  overruled  its  ants,  if  it  be  conceded  that  it  was  enforced, 
former  decision  in  Dorsey  v.  Dorsey,  and  does  not,  in  our  judgment,  afford  a  suffi- 
held  that  a  notice  l)y  publication  to  the  cient  reason  for  arresting  their  agent  and 
mortgagor,  while  absent  in  the  Confederate  the  agent  of  the  creditor  in  performing  a 
lines,  was  ineffectual  to  bind  him,  and  that  duty  which  both  of  them  imposed  on  him 
the  sale  under  it  was  void.  If  the  decision  'before  the  war  began."  In  the  latter  case, 
in  Ludlow  v.  Ramsey,  11  Wall.  581,  had  Wagner,  Judge,  said  :"  So  far  as  the  author- 
then  been  made,  the  Supreme  Court  of  ity  of  the  trustee  was  concerned  to  go  on  and 
Maryland  would  doubtless  have  adhered  to  make  a  sale  of  the  property  in  satisfaction 
its  former  decision.  of  the  debt,  it  made  no  difference  whether 

2  Washington  University  v.  Finch,  18  the  grantors  were  in  the  Confederate  lines 
Wall.  106,  1  Cent.  L.J.  66  (1874) ;  De  Jar-  or  in  the  jungles  of  India,  or  even  if  they 
nette  v.  De  Givervilie,  55  Mo.  440.     Both  were  dead." 

678 


WHEN  EXERCISE   OF   POWER   MAY   BE  ENJOINED.        [§  1801. 

• 

for,  if  that  were  the  case,  he  could  altogether  defeat  any  sale  by 
going  to  a  place  where  the  notice  could  not  reach  him  ;  but  it  is  in- 
tended rather  to  notify  the  community  that  the  sale  will  take  place. 
The  grantor  must  be  presumed  to  know  that  he  is  in  default,  and 
that  liis  property  is  liable  to  be  sold. 

V.  When  the  Exercise  of  the  Power  may  he  enjoined. 

1801.  Generally,  the  purpose  for  which  the  power  of  sale  is  given 
being  to  afford  an  additional  and  more  speedy  remedy  for  the  recov- 
ery of  the  debt,  the  mortgagor  is  by  his  contract  bound  to  exercise 
the  necessary  promptness  in  fulfilling  it,  and  cannot  complain  of  a 
legitimate  exercise  of  the  power.^  If  in  any  case  it  is  attempted  to 
pervert  the  power  from  its  legitimate  purpose,  and  to  use  it  for 
the  purpose  of  oppressing  the  debtor,  or  of  enabling  the  creditor  to 
acquire  the  property  himself,  a  court  of  equity  will  enjoin  the  sale, 
or  will  set  it  aside  after  it  is  macle.^  Of  course,  so  long  as  the 
creditor  exercises  only  his  legal  right,  although  this  be  contrary  to 
the  wishes  and  interest  of  the  mortgagor,  the  court  will  not  inter- 
fere;^ and,  as  will  be  noticed  presently  more  at  length,  a  stronger 
case  must  be  made  to  call  for  such  interference  than  to  set  aside  the 
sale  afterwards.* 

A  court  of  equity,  having  once  acquired  jurisdiction  of  the  parties 
and  of  the  subject  matter  through  an  action  to  enjoin  a  sale,  may 
direct  a  sale  of  the  land  ;  and  it  is  not  bound  to  direct  such  sale 
in  strict  accordance  with  the  terms  of  the  mortgage.^     Having  ac- 

1  §  1447  ;  "  Such  a  power  as  this  may  no  to  that  which  is  the  legitimate  purpose  for 
doubt  be  used  for  purposes  of  oppression ;  effecting  which  the  power  was  conferred, 
but  when  conferred,  it  must  be  remembered  The  legitimate  purpose  for  which  the  power 
that  it  is  so  by  a  bargain  between  one  party  to  sell  in  this  defendant's  mortgage  deed 
and  another,  and  it  is  for  the  party  who  bor-  was  given  was  to  secure  to  him  repayment  of 
rows  to  consider  whetlier  he  is  not  giving  his  mortgage  money.  If  he  uses  the  power 
too  large  a  power  to  him  with  whom  he  is  to  sell  which  he  gets  for  that  purpose  for 
dealing."  Per  Cottenham,  Lord  Chancel-  another  purpose,  from  any  ill  motive,  to 
lor,  in  Jones  17.  Matthie,  11  Jur.  504.  And  effect  means  and  purposes  of  his  own,  or 
see  McCalley  v.  Otey  (Ala.),  12  So.  Rep.  to  serve  the  purposes  of  other  individuals, 
40G,  90  Ala.  302,  8  So.  Rep.  1.57.  the  court  considers  that   to  be  wliat  it  calls 

2  Davey  v.  Durrant,  1  De  G.  &  J.  5.35;  a  fraud  in  the  exercise  of  the  power,  be- 
llobertson  v.  Norris,  1  Gif.  421  ;  Jenkins  v.  cause  it  is  using  the  power  for  a  purpose 
Jones,  2  Gif.  99  ;  Whitworth  v.  Riiodes,  20  foreign  to  the  legitimate  purposes  for  which 
L.  J.  N.  S.  (Ch.)  105  ;  Close  v.  Phipps,  7  it  was  intended."  Affirmed  4  Jur.  N.  S. 
Man.  &  G.  586;  Holland  v.  Citizens'  Sav.  443. 

Bank,  16  K.  I.  734,  19  Atl.  Rep.  G,54.  3  jo^gs  „  jyi^tthie,  1 1  Jur.   .504;    Secur- 

"  Wlierever  a  power  is  given,"  said  Sir  ity  Loan  Asso.  y.  Lake,  69  Ala.  456,  quoting 

J.  Stewart,  V.  C,  in  Robertson  v.  Norris,  4  text. 

Jur.  N.  S.  155,  "  the  court  requires  that  the  *  Striive  v.  Childs,  63  Ala.  473. 

power  shall  be  exercised  with  a  view  only  6  Manning  v.  Elliott,  92  N.  C.  48. 

679 


§  1802.]       POWER   OF   SALE   MORTGAGES   AND   TRUST   DEEDS. 

quired  jurisdiction,  the  court  may  properly  enjoin  an  action  at  law 
upon  the  notes  secured  by  the  mortgage.^ 

Where  the  enforcement  of  a  sale  under  a  trust  deed  has  been  en- 
joined, a  sale  under  execution  issued  on  the  judgment  of  foreclosure, 
while  the  injunction  is  still  in  force,  is  a  contempt  of  court,  and 
passes  no  title.^ 

1802.  Legitimate  exercise  of  power.  —  It  frequently  happens 
that  the  holder  of  a  mortgage  with  a  power  of  sale  is  requested  by 
the  mortgagor,  or  some  other  party  in  interest,  to  exercise  it  for  the 
purpose  of  effecting  a  sale  of  the  property ;  as  when  the  title  sub- 
sequent to  the  mortgage  has  become  complicated  by  attachments, 
judgments,  or  other  liens,  so  that  it  is  iiot  practicable  to  obtain 
releases  from  all  persons  having  claims  upon  it ;  or  where  a  sale, 
except  under  the  power,  has  become  impracticable  because  the  sub- 
sequent liens  upon  it  are  greater  than  the  value  of  the  property. 
Sometimes,  under  these  or  like  circumstances,  a  default  is  design- 
edly permitted,  in  order  to  make  the  power  exercisable  and  to 
cut  off  subsequent  incumbrances.  Doubts  are  sometimes  expressed 
about  the  validity  of  sales  made  on  such  request,  or  with  the  know- 
ledge on  the  part  of  the  mortgagee  that  the  purpose  is  to  get  rid  of 
a  subsequent  lien  ;  but  it  is  conceived  that,  if  the  power  is  fairly  ex- 
ercised according  to  its  terms,  there  is  no  impropriety  in  the  ar- 
rangement. Certainly  there  is  no  such  objection  as  to  give  occasion 
for  the  interference  of  the  court  to  restrain  the  sale  or  to  set  it  aside. 
"  A  man  taking  that  which  belongs  to  him,  by  means  of  the  security 
which  he  has  contracted  for,  does  not  act  improperly  in  so  doing 
merely  because  one  principal  reason  for  his  calling  in  the  money  is 
a  wish  to  benefit  another  person.  The  case,  however,  might  be 
different  if  it  were  part  of  the  arrangement  that  the  mortgage  debt 
should  be  again  lent  to  the  purchaser."  ^ 

So  long  as  the  mortgagee  is  clearly  within  the  authority  given  by 
the  power,  and  no  fraud  or  illegality  in  the  mortgage  is  shown,  an 
intended,  sale  will  not  be  restrained,  although  the  exercise  of  it  be 
harsh  and  improvident.  The  grounds  for  interference  by  injunc- 
tion must  be  very  strong,  and  must  show  that  the  injury  likely  to 
be  sustained  by  the  parties  interested  will  be  irreparable,  or  that  a 
clear  breach  of  trust  will  be  committed  by  the  intended  sale.* 

1  Whitley  v.  Dunham  Lumber  Co.  89  ^  Dart's  Vendors  and  Purchasers,  5th  ed. 
Ala.  493,  7   So-  Rep.  810;  North  Eastern    p.  75. 

K.  R.  Co.  ?;.  Barrett,  65  Ga.  601  ;  Hadfield  v.  *  Kershaw  v.  Kalow,  I  Jur.  N.  S.  974; 

Bartlett,  66  Wis.  634,  29  N.  W.  Rep.  639.  Warner  v.  Jacob,  L.  R.  20  Ch.  D.  220;  Be- 

2  Ward  V.  Billups,  76  Tex.  466, 13  S.  W.  dell  v.  M'Clellan,  11  How.  Pr.  172  ;  IIoI- 
Rep.  308.  laud  v.  Citizens'  Sav.  Bank,  16  R.  I.  734,  19 

ggO  -^.tl.  Rep.  654. 


WHEN  EXERCISE   OF  POWER   MAY   BE   ENJOINED.      [§§  1803,  1804. 

1803.  A  use  of  the  |Dower  to  obtain  an  advantage  under  an- 
other mortgage  is  not  allowable.^  Where  a  mortgagee  held  two 
mortgages  with  powers  of  sale  upon  the  same  property,  the  subse- 
quent mortgage,  however,  being  of  an  undivided  interest,  and  he 
threatened  to  foreclose  under  the  first  mortgage  unless  both  mort- 
gages should  be  paid,  upon  the  filing  of  a  bill  to  redeem  from  the 
first  mortgage,  and  the  payment  of  the  money  due  upon  it  into 
court,  he  was  enjoined  from  selling  under  that  mortgage ;  because 
the  power  in  that  mortgage  only  existed  for  the  purpose  of  securing 
that  money,  and  the  mortgagee  could  not  be  allowed  to  proceed 
under  that  power  in  order  to  have  an  advantage  in  obtaining  the 
money  due  on  the  second  mortgage.^ 

A  bill  by  a  mortgagor  to  redeem,  and  to  enjoin  a  sale  under  a 
power,  alleged  that  the  mortgagor  had  tendered  the  full  amount  of 
the  mortgage  debt,  and  that  nevertheless  the  mortgagee  advertised 
the  land  for  sale  under  the  power,  his  purpose  being  to  coerce  the 
payment  of  another  claim  not  connected  with  the  mortgage.  These 
allegations  not  having  been  met  by  answer,  the  court  enjoined  the 
sale.^ 

1804.  Grounds  of  interference  must  be  alleged.  —  Courts  of 
equity  will  interfere  by  injunction  to  prevent  a  sale  under  a  power 
in  a  mortgage  or  trust  deed  when,  by  reason  of  fraud,  want  of  con- 
sideration,* or  otherwise,  the  collection  of  the  debt  would  be  against 
conscience,  and  the  sale  would  work  a  great  and  irreparable  injury,^ 
To  warrant  this  interference  the  complainant  must  allege  specifically 
the  grounds  on  which  the  application  is  based  ;  general  statements 
and  inferences  from  facts  are  not  sufficient.^  An  allegation  that  the 
mortgagor  does  not  owe  the  note  described  in  the  mortgage,  without 
stating  why  he  does  not  owe  it,  is  not  sufficient  to  warrant  the  re- 
lief." A  statement  that  the  proposed  sale  will  materially  embarrass 
and  injure  the  petitioner  is  only  a  conclusion  of  his  own,  and  of  no 
consequence  unless  the  facts  are  stated  from  which  the  court  can 
determine  what  the  injury  will  be.^  There  must  be  clear  and  pre- 
cise allegations  of  distinct  facts  which  would  go  to   show  that  by 

1  Gooch    V.    Vanghan,    92   N.    C.    610;  *  Brooks  y.  Oweu,  112  Mo.  251,  19  S.  W. 
Struve  V.  Cliilds,  63  Ala.  473.  Rep.  723  ;  Ryan  v.  Gilliam,  7.5  Mo.  132. 

2  Whitworth  v.  Rlioiles,  20  L.  J.  N.  S.  ^  Montfjomery   v.  Ewcii,    9    Minn.  103; 
105  ;  Struve  v.  Chiids,  63  Ala.  473  ;  Mc-  Glover  v.  Hemhree,  82  Ala.  324.  8  So.  Rep. 
("alley  v.  Otey  (Ala.)   12  So.  Rep.  406;  90  251  ;   Vaiijihan  v.  Marable,  64  Ala.  60. 
Ala.  302,  8  So.  Rep.  157.  «  Security  Loan  Asso.  v.  Lake,  69  Ala. 

3  McCalley  v.  Otey,  90  Ala.  302,  8  So.  456.  465. 

Hep.  157.  T  Foster  v.  Reynolds,  38  Mo.  553. 

^  Montgomery  v.  McEweu,  9  Minn.  103, 

681 


§  1805.]        POWER   OF   SALE   MORTGAGES   AND   TRUST   DEEDS. 

reason  of  fraud,  or  want  or  illegality  of  consideration,  or  for  some 
other  reason,  the  collection  of  the  mortgage  debt  would  be  against 
good  conscience,  and  that  the  sale  would  work  irreparable  injury.^ 

1805.  The  court  will  enjoin  a  sale  only  when  the  petitioner's 
rights  are  clear,  or  free  from  reasonable  doubt.  He  must  show 
also  a  good  reason  for  asking  the  interference  of  the  court.  He 
must  sliow  by  a  clear  preponderance  of  evidence  that  the  mortgagee 
is  about  to  proceed  in  an  improper  or  oppressive  manner,  and  not 
merely  that  he  might  adopt  a  different  remedy  ;^  that  the  mortgage 
creditor  is  claiming  more  than  is  due  on  the  debt;  that  the  mort- 
gage was  made  without  consideration  ;  that  the  consideration  has 
failed  ;2  or  that  the  debt  has  been  satisfied  ;^  or  that  the  accounts 
are  so  complicated  that  the  parties  cannot  state  them  and  ascertain 
the  amount  due.^  In  general  a  stronger  case  must  be  presented  to 
the  court,  to  obtain  an  injunction  against  a  proposed  sale  under  the 
power,  than  to  obtain  a  decree  setting  it  aside  after  it  is  made.*^ 

A  bill  alleging  that  the  mortgagor  has  overpaid  an  account  due 
the  mortgagee,  and  that  such  overpayment,  if  applied  to  the  mort- 
gage debt,  would  satisfy  it,  does  not  entitle  him,  where  the  over- 
payment is  disputed,  to  have  a  sale  under  the  mortgage  enjoined 
until  the  question  is  adjudicated.''  The  mortgagor  must  abide  by 
the  terms  of  the  mortgage.     The  power  of  sale  is  given  to  enable 


1  Glover  V.  Hembrce,  82  Ala.  324,  8  So. 
Rep.  2.51  ;  Vanghan  v.  Marable,  64  Ala.  60  ; 
Whittaker  v.  Hill,  96  N.  C.  2,  1  S.  E.  Rep. 
639  ;  Holland  r.  Citizens'  Sav.  Bank,  16  R. 
I.  734,  19  Atl.  Rep.  654.  An  allegation  that 
another  had  promised  to  pay  a  mortgage 
but  had  failed  to  do  so,  and  that  complain- 
ant "  is  informed  and  believes,  and  there- 
fore charges  it  to  be  true,"  that  said  per- 
son and  the  mortgagee  "  have  combined  to- 
gether for  the  purpose  of  allowing  said 
property  to  be  sold  under  said  mortgages, 
and  thereby  defeat  the  purposes  of  "  the 
bill  brought  by  complainant  to  compel  the 
payment  of  said  mortgages  by  said  person, 
is  not  such  a  specific  charge  of  an  intention 
to  pervert  the  power  of  sale  as  entitles  the 
complainant  to  relief,  or  amounts  to  a  no- 
tice to  the  purchaser  at  the  snle.  Holland 
V.  Citizens'  Sav.  Bk.  16  R.  I.  734,  19  Atl. 
Rep.  6.54. 

2  Bedell  v.  M'Clellan,  11  How.  Pr.  172  ; 
Security  Loan  Asso.  v.  Lnke,  69  Ala.  456, 
465;  Bramlett  v.  Reily  (Miss.),  3  So.  Rep. 
658. 

682 


3  Van  Meter  v.  Hamilton,  96  Mo.  654, 10 
S.  W.  Rep.  71. 

i  Knight  v.  Jackson,  36  S.  C.  10,  14  S. 
E.  Rep.  982;  Frazier  v.  Keller,  71  Md.  58, 
20  Atl.  Rep.  134. 

^  Security  Loan  Asso.  v.  Lake,  69  Ala. 
456  ;  Hinson  v.  Brooks,  67  Ala.  491  ;  Mul- 
ler  V.  Stone,  84  Va.  834,  6  S.  E.  Rep.  223. 

6  Kershaw  v.  Kalow,  1  Jur.  N.  S.  974  ; 
Glover  V.  Hembree,  82  Ala.  324,  8  So.  Rep. 
251,  quoting  text. 

7  Preston  v.  Shutton,  1  Anstr.  50  ;  Raw- 
son  V.  Samuel,  1  Craig  &  P.  161  ;  Gregg  v. 
Hight,  6  Mo.  App.  579  ;  Robertson  v.  Hogs- 
heads, 3  Leigh,  667  ;  Frieze  v.  Chapin,  2  R. 
I.  429;  McCulla  v.  Beadleston,  17  R.  L  20, 
20  Atl.  Rep.  11.  In  the  latter  case  Durfee, 
C.  J.,  referring  to  the  cases  above  cited,  said  : 
"  In  some  of  these  cases,  claim  and  counter- 
claim originated  in  the  same  series  of  trans- 
actions, but  even  this  was  not  thought  to 
warrant  the  injunction.  The  mortgage  in 
the  case  at  bar  originated  outside  the  busi- 
ness of  the  firm,  and,  so  far  as  appears,  has 
not  been  complicated  with  said  business." 


WHEN   EXERCISE   OF   POWER   MAY    BE   ENJOINED.       [§§  1806,  1807. 

the  holder  of  the  mortgage  to  collect  the  debt  by  selling,  if  the 
debtni'  cannot  or  will  not  pay  it.^  That  the  mortgaged  proj)erty 
greatl}'  exceeds  the  amount  of  the  mortgage  debt ;  that  the  sale  will 
greatly  injure  the  mortgagor,  who  is  unable  to  pay  the  mortgage 
debt ;  and  that  the  mortgagee  threatens  to  sell  unless  a  second 
mortgage  is  paid,  and  to  thereby  obtain  an  advantage  and  oppress 
the  mortgagor,  —  are  not  grounds  for  enjoining  the  sale.^ 

An  injunction  will  not  be  issued  against  carrying  out  a  sale  made 
under  a  power,  when  this  relief  is  not  sought  until  the  sale  has  been 
made  and  the  rights  of  a  purchaser  have  intervened.  If  the  mort- 
gagor has  not  obtained  an  injunction  before  the  sale,  he  should 
attend  the  sale  and  apprise  the  bidders  of  his  claims,  in  order  to  be 
in  a  situation  to  avail  himself  of  his  supposed  equities.^ 

A  surety  will  not  be  enjoined  from  selling  under  a  mortgage  of 
indemnity  before  he  has  paid  the  debt,  in  case  the  debt  is  past  due 
and  the  parties  have  agreed  that  the  sale  may  be  advertised,  so  that 
it  can  be  made  by  a  certain  day.* 

1806.  Payment  of  the  amount  justly  due  under  the  mortgage 
must  be  tendered  to  entitle  the  person  seeking  the  injunction  to 
the  consideration  of  the  court. ^  It  has  sometimes  been  said  that 
the  amount  admitted  to  be  due  must  be  paid  into  court  at  the  t'me 
of  filing  the  bill,  and  an  averment  of  such  payment  made  in  the 
bill;^  but  it  is  generally  sufficient  if  the  bill  makes  a  tender  of 
whatever  may  be  found  due,  and  then  payment  into  court  is  not 
essential  to  the  equity  of  the  bill.'^  If  a  mortgagor,  who  has  agreed 
to  pay  attorneys'  fees  rendered  necessary  by  his  default,  brings  suit 
to  enjoin  a  sale,  on  the  ground  that  partial  payments  have  been 
made,  without  tendering  the  unpaid  balance,  he  is  liable  for  attor- 
neys' fees  incurred  by  the  mortgagee  in  defending  the  suit.^ 

1807.  When  the  mortgage  was  void  in  its  inception  on  ac- 

1  Muller  V.  Bayly,  21  Gratt.  521  ;  Frieze  163,  9  So.  Rep.  143 ;  Norman  v.  Peper,  24 

V.  Chapin,  2  K.  I.  429.  Fed.  Rep.  403.     But  this  rule  is  held  not  to 

-  McCullay.  Beadleston,  17  R.  I.  20,  20  apply  to  a  case  where  the  mortgagee  at  the 

Atl.  Rep.  11.  time  of  taking  the  mortgage  was  the  soliei- 

3  Pender  v.  Pittman,  84  N.  C.  372.  tor  of  the  mortgagor.     Macleod  v.  Jones, 

«  Browcr  v.  Buxton,  101  N.  C.  419,  8  S.  L.  R.  24  Ch.  D.  289. 

E.  Rep.  llf).  6  Daughdrill  v.  Sweeney,  41  Ala.  310. 

*  Sloan  r.  Coolhangh,  10  Iowa,  31  ;  Pow-  ^  McCalley  v.  Otey,  90  Ala.  302,  8  So. 

ell  V.  Hoj.kins,  38  Md.  1  ;  Vechte  v.  Brown-  Rep.   157  ;  Struve  v.  Childs,  63  Ala.  473  ; 

ell,  8  Paige,  212  ;  Meysenburg  u.  Schlieper,  Security  L.  As.so.  v.  Lake,  69    Ala.  456; 

46  Mo.  209  ;  Cook  v.  Patterson,  103  N.  C.  Whitley  v.  Dunham  Lumber  Co.  89  Ala. 

127,  9   S.   E.  Rep.  402;  Carver  v.  Brady,  493,  7  So.  Rep.  810. 

104  N.C.  219,  10  S.  E.  Rep.  565  ;  NewEng.  »  Knight  v.  Jackson,  36  S.  C.   10,  14  S. 

Mortg.  Co.  V.  Powell  (Ala.),  12  So.  Rep.  55  ;  E.  Rep.  982. 
American  Mortgage  Co.  v.  Sewell,  92  Ala. 

683 


§  1807  a.]        POWER   OF   SALE   MORTGAGES   AND   TRUST   DEEDS. 

count  of  fraud,  undoubtedly  a  sale  under  the  power  may  be  en- 
joined.^ The  bill  in  such  case  must  clearly  disclose  the  fraud,  and 
the  proof  clearly  substantiate  it,  though  this  rule  is  somewhat  re- 
laxed in  case  the  mortgagee  sustains  a  fiduciary  relation  to  the 
mortgagor.  Where  a  mortgage  by  a  corporation  was  of  doubtful 
validity  on  account  of  being  made  to  the  directors  themselves  on 
their  own  vote,  a  sale  was  restrained  until  a  hearing  of  the  case.^ 

But  the  application  must  be  made  by  the  mortgagor  upon  whom 
the  fraud  was  practised  in  obtaining  the  mortgage,  and  cannot  be 
made  by  a  purchaser  from  the  mortgagor  without  paying  the  entire 
debt,  although  the  holder  of  the  mortgage  had  taken  it  as  security 
for  a  less  amount,^  or  although  he  had  taken  it  with  notice  of  the 
fraud.4 

There  may  also  be  an  injunction  against  the  execution  of  the 
power  by  reason  of  circumstances  arising  after  the  making  of  the 
mortgage,  in  consequence  of  which  the  execution  of  it  would  be 
inequitable  ;  but  the  court  will  not  interfere  in  such  cases  except 
upon  strong  reasons.^  The  fact  that  part  of  the  principal  of  the 
debt  has  been  paid  does  not  warrant  an  injunction  against  the  sale, 
unless  it  be  in  restraint  of  selling  more  than  enough  to  pay  the 
amount  due.^  But  payment  of  the  entire  debt  affords  ground  for 
such  injunction.''' 

A  sale  under  a  trust  deed  given  for  purchase -money  of  land 
bought  at  a  sale  under  a  deed  of  trust  executed  by  a  third  person 
will  not  be  enjoined,  so  long  as  the  petitioner  claims  title  under 
such  purchase,  on  the  ground  that  the  trustee  under  the  former  deed 
of  trust  had  no  power  to  make  the  sale,  or  that  the  deed  of  trust 
which  is  sought  to  be  enforced  is  void  because  of  an  insufficient 
description  of  the  land,  when  such  description  is  the  same  as  that 
contained  in  the  deed  under  which  he  claims  title.^ 

1807  a.  But  it  is  no  ground  for  enjoining  a  foreclosure  under 
a  power  that  the  mortgage  was  made  for  the  purpose  of  de- 
frauding the  mortgagor's  creditors,  if  it  was  in  fact  given  to 
secure  an  actual  indebtedness.  "  A  conveyance  or  transfer  in  fraud 
of  creditors  is  not  regarded  as  turpis  causa,  which  renders  all  con- 
tracts void.     It  is  merely  voidable  only  in  favor  of  the  defrauded 

1  PiersoD  v.  Ryerson,  14  N.  J.  Eq.  181.  ^  Ter  Greene,  C.  J.,  in  Frieze  v.  Chapin. 

2  Southampton  Boat  Co.  v.  Muntz,  12  W.     2  E.  I.  429,  432. 

K.  330.     See  Carpenter  v.  Talbot,  33  Fed.  ^  Powell  v.  Hopkins,  38  Md.  1. 

Rep.  537.  "^  Green  v.  Englemann,  39  Mich.  460. 

3  Foster  v.  Wishtman,  123  Mass.  100.  «  McCarley  v.  Tippah  County,  58  Miss. 
*  Fairfield  v.   Mc Arthur,  15  Gray,  526.  483. 

And  see  §  1303. 

684 


WHEN   EXERCISE   OF   POWER   MAY   BE   ENJOINED.      [§§  1807  5,  1807  C. 

creditors,  leaving  it  in  all  other  respects,  and  as  between  the  parties, 
valid  ;  the  fraud,  if  there  be  one,  being  strictly  a  private  fraud, 
which  is  avaihible  only  to  those  injured  by  it."  ^  But  it  is  a  ground 
for  enjoining  the  foreclosure  of  such  mortgage  that  in  fact  it  does 
not  secure  any  indebtedness,  and  the  mortgagor  cannot  be  deprived 
of  this  defence  by  the  mortgagee's  showing  that  the  mortgage  was 
executed  to  defraud  creditors,  so  that  the  mortgagor  does  not  come 
into  equity  with  cleaiT  hands,  but  sets  up  his  own  fraud  as  a  ground 
of  relief.^  These  maxims  are  not  applicable  when  the  mortgagor  is 
seeking  to  prevent  the  mortgagee  from  enforcing  the  mortgage,  on 
the  ground  that  it  was  executed  without  consideration,  and  not  on 
the  ground  that  it  was  executed  to  defraud  creditors. 

1807  h.  The  mere  fact  that  the  mortgagor  was  insane  at  the 
time  of  the  execution  of  the  mortgage  is  not  sufficient  ground  for 
enjoining  the  sale.  If  the  mortgagee  took  the  mortgage  in  ignorance 
of  the  insanity  in  perfect  good  faith,  and  without  taking  any  advan- 
tage, equity  will  not  interfere  to  set  aside  the  mortgage,  when  in- 
justice would  be  done  to  the  mortgagee,  and  he  could  not  be  restored 
to  the  position  he  held  before  taking  the  mortgage."^ 

1807  c.  Where  there  is  a  question  whether  there  has  been  a 
default  under  the  conditions  of  the  mortgage,  and  this  issue  is  ^on- 
tested  by  affidavit,  the  court  is  justified,  in  its  discretion,  in  restrain- 
ing the  foreclosure  sale  until  this  issue  should  be  judicially  deter- 
mined.* 

And  so  if  a  breach  of  the  condition  has  been  distinctly  waived  or 
released,  or  if  by  agreement  the  right  to  foreclose  has  been  re- 
nounced or  postponed,  the  mortgagor  may  have  an  injunction  against 
a  foreclosure  attempted  in  violation  of  such  release  or  agreement.^ 

But  a  sale  under  a  trust  deed  will  not  be  enjoined  on  the  debtor's 
allegation  that  the  creditor  had  olfered  to  allow  the  principal  debt 
to  stand  if  the  debtor  would  pay  the  interest  promptly  and  keep 
the  property  in  repair,  and  that  he  had  made  an  outlay  relying  upon 
such   proposal,  where   it  appears  that  the  debtor  paid   the  interest 

1  Devlin  v.  Quij,^^,  44  Minn.  534,  47  N.  Pac.  Rep.  584;  Mut.  L.  Ins.  Co.  v.  Hunt,  79 
W.  Uep.  258,  per  Mitchell,  J.;  Livingston  N.  Y.  544;  Wirebach  v.  Bank,  97  Pa.  St. 
V.  Ives,  35  Minn.  55,  27  N.  W.  Rep.  74.  549  ;  Blount  y.  Spratt,  113  Mo.  48,  20  S.  W. 

2  Devlin  v.  Qiiig;?,  44  Minn.  534,  47  N.  Rep.  967  ;  French  v.  Snell,  29  N.  J.  Eq.  95. 
W.  Rep.  258,  citing  Wear.sc  v.  Peirce,  24  *  O'Brien  v.  Oswolii,  45  Minn.  59,  47  N. 
Pick.  141;  Ilannan  v.  Hannan,  123  Ma.ss.  W.  Rep.  316;  Barnum  v.  Bobh,  68  Mo. 
441 ;  Briggs  v.  Lan^foril,  107  N.  Y.  680,  14  619. 

N.  E.  Rep.  502;  Saekner  v.  Sackner,  39  c  Unhhard  r.  Jasinski,  46  111.  160;  Pen- 
Mich.  39.  oiiilh  V.  Abraham,  42  La.   Ann.  326,  7   So. 

3  1  Story   Eq.    Jur.  §    228,  2  Pom.    Eq.  Rep.  533. 
§  946  ;  Gribben  /.'.  Maxwell,  34  Kans.  8,  7 

685 


§  1808.]        POWER   OF   SALE   MORTGAGES   AND   TRUST   DEEDS. 

on  a  part  only  of  the  principal  debt,  and  the  creditor  had  thereupon 
demanded  that  he  should  pay  the  whole  of  the  interest.^ 

1808.  Usury.  —  It  is  no  ground  for  enjoining  a  sale  under  a  trust 
deed  that  the  notes  secured  reserve  usurious  interest  or  include  it, 
except  in  those  States  where  usury  renders  the  contract  void.  The 
trustee's  duty  to  sell  and  to  apply  the  proceeds  in  discharge  of  the 
debt  legally  due  remains  the  same.  If  he  should  attempt  to  mis- 
apply the  proceeds,  and  pay  on  account  of  usury  what  was  not 
legally  due,  the  court  would  then  interfere.^  Where  usury  does  not 
invalidate  the  mortgage,  a  sale  under  the  power  Avill  not  be  enjoined 
by  reason  of  it  unless  the  debtor  brings  into  court  the  princij^al  and 
the  legal  interest  due.^  In  New  York,  however,  where  usury  renders 
void  the  contract,  a  power  of  sale  in  a  usurious  mortgage  is  con- 
sidered void,  and  a  sale  under  it  may  be  restrained.*  If  a  sale  be 
actually  made  to  one  having  no  notice  of  the  usury,  it  will  be  up- 
held ;^  but  one  having^such  notice  would  not  by  such  sale  acquire 
any  title.^  Neither  is  it  a  ground  for  enjoining  a  sale  under  a  power 
that  the  morto;agee  in  his  notice  claims  a  greater  amount  than  was 
actually  and  legall}^  due.'^ 

In  North  Carolina  it  is  declared  that  a  mortgagee  will  be  enjoined 
from  selling  when  there  is  any  suggestion  of  oppression  arising  from 
usury  or  the  like.^    The  interest  justly  due,  as  well  as  the  principal, 

1  Bramlett  v.  Reily  (Miss.),  3  So.  Rep.  rule  is  different  in  Iowa,  where  apparently 
658.  an  injunction  would  be  granted  upon  a  ten- 

2  Norman  v.  Pcper,  24  Fed.  Rep.  403;  derof  the  amount  justly  due.  Striugham 
Tooke  V.  Newman,  75  111.  215.  v.  Brown,  7  Iowa,  33,  Sloan  v.  Coolbangh, 

3  Powell  V.  Hopkins,  38  Md.  1  ;  Walker  10  Iowa,  31. 

V.  Cockey,  38  Md.75;  Eslava  i'.  Crampton,        «  Kornegay  v.  Spicer,  76  N.  C.  95;  Me- 

61  Ala.  507;  Ferguson  v.  Soden,  111  Mo.  roney   v.  Atlanta   Loan  Asso.    112   N.  C. 

208,  19  S.  \V.  Rep.  727,  quoting  text.  852,    17   S.  E.   Rep.  637.     See  New  Eng. 

In  Iowa  it  seems  that  an  injunction  would  Mortg.  Co.  i\  Powell  (Ala.),  12  So.  Rep. 

be  allowed  in  such  case  upon  tender  of  the  55.     In  this  case  the  mortgagor  alleged  the 

amount   due,   less    the    usurious    interest,  invalidity  of  the  mortgage  on    account  of 

Casadv  v.  Rosier,  11  Iowa,  242.     And  so  in  usury  under  the  laws  of  New  York,  and 

Maryland:  Walker  v.  Cockey,  38  Md.75;  under   the 'laws  of   Alabama,  because   the 

Hill  V.  Reifsnider,  39  Md.  429 ;    Powell  v.  loan    was  made  by   a  foreign  corporation. 

Hopkins,  38  Md.  1  ;  Gantt  v.  Grindall,  49  In  addition  to  these  grounds  of  equity  the 

Md.  310.     So  in  Wisconsin,  without  a  ten-  mortgagor  alleged  that  the  lands  in  contro- 

der.     Haggerson  v.  Phillips,  37  Wis.  364.  versy  constituted  the  farm  and  homestead 

*  Hyland  v.  Stafford,  10  Barb.  558;  Bur-  of    the   complainant,   that  it   was  stocked 

netr.  Dennison,  5  Johns.  Ch.  35,  41.     And  with   teams   and    supplied   with    laborers, 

see  New  Eng.  Mortg.  Co.  v.  Powell  (Ala.),  that  he  was  carrying  on  farming  operations, 

12  So.  Rep.  55,  where  also  there  were  other  and  that  irreparable  damage  would  result 

grounds  for  the  application.  from  a  foreclosure  of  the  mortgage  pend- 

5  Jackson  i-.  Henry,  10  Johns.  185,  6  Am.  ing  complain.ant's  bill  for  relief.  The  in- 
Dee.  328.  junction  was  retained  until  a  hearing.     It 

6  Jackson  v.  Dominick,  14  Johns.  435.  does  not  clearly  appear  ujion  what  grounds 
■^  Armstrong  r.  Sanford,  7  Minn.  49.   The    the   injunction   was   granted   or   retained. 

686 


WHEN   EXERCISE   OF   POWER   MAY   BE   ENJOINED.      [§§  1809,  1810. 

must  be  tendered  before  this  equitable  relief  will  be  granted.^ 
Though  the  statute  provides  that  usury  shall  be  deemed  a  forfeiture 
of  the  entire  interest,  a  person  who  seeks  the  equitable  aid  of  a 
court  to  enjoin  a  sale  must  do  equity.  If  the  mortgagee  waives  the 
usurious  part  of  the  contract,  the  injunction  will  be  refused.^ 

1809.  Unconscionable  penalty.  —  It  has  been  said,  however, 
that  where  a  mortgage  and  note  provide  a  penalty  of  a  high  rate  of 
interest  after  maturity,  such  in  amount  that  a  court  in  equity  would 
give  relief  against  it  as  unconscionable,  that  the  proper  course  is  to 
obtain  an  injunction  restraining  a  sale  under  the  power  until  the 
amount  actually  due  can  be  ascertained  ;  because,  if  a  sale  is  allowed 
to  be  had  under  the  power,  the  mortgagee  may  retain  the  full 
amount  of  the  debt  and  penalty,  and  the  mortgagor  cannot  recover 
back  any  part  of  it  by  action  at  law.  The  contract  is  not  in  itself 
illegal,  and  the  only  relief  against  it  is  upon  equitable  considera- 
tions.3 

1810.  A  want  of  notice  of  the  sale  is  no  ground  for  enjoining 
it.  The  power  of  sale  generally  stipulates  that  it  shall  be  exercised 
only  after  giving  notice  by  advertisement  for  a  certain  time  in  some 
newspaper,  or  after  giving  some  other  prescribed  notice.  In  se .  ^ral 
States  the  notice  to  be  given  is  prescribed  by  statute,  and  in  siicti 
case  the  statute  must  be  followed,  whatever  may  be  the  provisions 
of  the  power  in  this  respect.  In  either  case  a  sale  made  without  the 
proper  prescribed  notice  is  invalid,  but  ordinarily  the  courts  will 
not  interfere  to  restrain  a  sale  about  to  be  made  without  such  notice. 
The  purchaser  is  bound  to  know  what  the  requirements  of  the  deed 
or  of  the  statute  are  in  this  respect,  and  to  see  that  they  have  been 
complied  with;*  and  the  mortgagor  and  others  interested  in  the 
equity  may  redeem  all  the  same  if  the  power  is  illegally  exercised. 
Even  under  the  English  statute,  which  provides  that  the  purchaser 
shall  not  be  affected  by  the  absence  of  such  notice,  and  that  the 
mortgagor  may  have  remedy  by  an  action  for  damages,  or  under  a 

The  decision  can  hardly  be  relied  upon  in  77  N.  C.  268;  Hooker  v.  Austin,  41  Miss, 

other  Stales.  717. 

1  Cook  V.  Patterson,  103N.  C.  127,  9  S.  E.  *  Anon.  Madd.  &  Gel.  10.  A  provision 
Hep.  402  ;  Carver  v.  Brady,  104  N.  C.  219,  in  the  power,  that  the  purchaser  shall  not 
10  S.  E.  Kep.  565;  Piirnell  ij.  Vaughan,  82  be  bound  to  inquire  into  the  existence  of 
N.  C.  134;  Simouton  v.  Lanier,  71  N.  C.  notice,  does  not  protect  him  against  his 
498.  actual  knowledge  that  there  was  no  notice. 
•^  Manning  v.  Elliott,  92  N.  C.  48.  Parkinson  v.  Hanbury,  1  Drew.  &  Sui.  143, 
3  Bidwell  V.  Whitney,  4  Minn.  76;  Cul-  2  I)e  G.,  J.  &  S.  450.  Sue,  also,  Ford  v. 
bertson  v.  Lennon,  4  Minn.  51  ;  Hanker  v.  Ileoly,  3  Jur.  N.  S,  1116;  Eorster  v.  Hog- 
Brent,  4  Minn.  521  ;  Purnell  v.  Vaughan,  gart,  15  Q.  B.  155. 

687 


§§  1811-1813.]      POWER   OF   SALE   MORTGAGES   AND   TRUST   DEEDS. 

power  with  like  provisions,  the  Court  of  Chancery  has  no  jurisdic- 
tion to  restrain  a  sale  of  which  no  notice  has  been  given. ^ 

1811.  Not  enjoined  to  allow  set-ojff.  —  Neither  will  a  sale  under 
a  power  be  enjoined  in  order  that  the  mortgagor  may  be  enabled 
to  set  off  a  balance  which  may  be  found  in  his  favor  upon  unliqui- 
dated claims  in  controversy  between  him  and  the  mortgagee;^  nor 
to  enable  the  mortgagor  to  prosecute  a  bill  to  correct  an  alleged 
error  in  the  amount  of  the  mortgage.^ 

A  sale  under  a  power  will  not  be  enjoined,  pending  a  suit  to  settle 
partnership  accounts  between  the  mortgagor  and  mortgagee  not  in- 
volved in  the  mortgage,  without  an  averment  of  the  mortgagee's 
insolvency,  or  some  other  circumstance  indicating  that  the  mortga- 
gor might  sustain  an  irreparable  injury  by  the  sale.* 

1812.  Time  for  contribution  to  redeem.  —  It  is  no  ground  for 
suspending  a  sale  that  the  several  owners  of  the  equity  of  redemp- 
tion are  at  variance  as  to  the  proportions  which  they  shall  con- 
tribute for  the  redemption  of  the  mortgage  ;  though  the  court  may, 
upon  payment  into  court  of  a  sum  sufficient  to  indemnify  the  mort- 
gagee against  loss,  grant  a  reasonable  postponement.^ 

1813.  When  amount  of  debt  is  in  dispute. — In  an  early  case 
in  New  York  a  sale  was  enjoined  on  an  application  in  behalf  of  an 
infant  heir  of  the  mortgagor,  the  amount  due  upon  the  mortgage 
being  in  dispute.^  The  court,  however,  did  not  seem  to  consider 
that  the  case  afforded  any  equitable  ground  for  interference,  fur- 
ther than  to  subject  the  sale  to  some  restrictions,  and  perhaps 
made  these  restrictions  only  because  the  defendant  consented  to 
them.  These  were,  that  the  amount  due  should  be  computed  by  a 
master,  who  should  be  associated  with  the  mortgagee  in  making 
the  sale  ;  and  that  a  further  notice  of  the  sale  should  be  given  ;  and 
that  only  so  much  of  the  land  should  be  sold  as  the  master  should 
deem  sufficient,  in  case  a  part  could  be  sold  without  prejudice.  In 
another  case  in  that  State  a  sale  was  enjoined  where  the  mortgagee 

1  Prichard  v.  Wilson,  10  Jur.  N.  S.  330.  and  further   proceedings   must  be   had    in 

2  Trieze  r.  Chapin,  2  R.I.  429;  Tate  i>.  court.  Proviso  in  §  5411  Comp.  Laws; 
Evans,  54  Ala.  16  ;  Robertson  v.  Hogsheads,  McCann  v.  Mortgage  Co.  (N.  D.),  54  N.  W. 
3  Leigh,  667  ;  Roger  v.  Kane,  5  Leigh,  606  ;  Rep.  1026. 

Gregg  V.  Hight,  6  Mo.  App.  579 ;  Glover  v.  »  Outtrin  v.  Graves,  1  Barb.  Ch.  49. 
Hembree,  82  Ala.  324,  8  So.  Rep.  251.  *  Glover  v.  Hembree,  82  Ala.  324  ;  Cum- 
in  North  Dakota  and  South  Dakota  if,  mings  v.  Norris,  25  N.  Y.  625. 
after  the  commencement  of  proceedings  by  ^  Brinckerhoff  v.  Lansing,  4  Johns.  Ch. 
advertisement,  it  appears  by  affidavit  that  65,  8  Am.  Dec.  538.     See  Massie  v.  Wilson, 
the  mortgagor  has  a  counter-claim,  or  any  16  Iowa,  390. 

other  valid  defence,  the  mortgagee  may  be  ^  Van  Bergen  v.  Demarest,  4  Johns.  Ch. 

enjoined  from  foreclosing  bv  advertisement,  37.     See  §  1775. 

688 


WHEN   EXERCISE   OF   POWER   MAY   BE   ENJOINED.      [§§  1813  a,  1814. 

claimed  in  his  notice  a  larger  amount  than  was  actually  due.^ 
Whether  these  would  be  grounds  for  enjoining  a  sale,  where  there 
is  no  statute  providing  that  only  so  much  of  the  property  shall  be 
sold  as  is  sufficient  to  satisfy  the  debt,  may  well  be  doubted.  But 
where  the  accounts  between  the  parties  are  complicated,  and  the 
balance  due  under  the  mortgage  is  uncertain,  a  sale  may  be  en- 
joined until  the  equities  between  the  parties,  which  should  affect 
the  amount  due  under  the  mortgage,  are  settled,  and  the  balance 
due  can  be  ascertained.^ 

1813  a.  That  the  mortgage  has  been  satisfied  is  of  course  a 
stronger  ground  for  enjoining  a  sale  under  it.  Thus,  upon  evi- 
dence that  the  mortgagor  has  performed  services  for  the  mortgagee 
in  value  equal  to  the  debt  secured,  an  injunction  against  a  sale  will 
be  made  perpetual.^  A  junior  mortgagee  may  have  an  injunction 
against  a  sale  of  the  property  under  a  prior  mortgage  that  has  been 
satisfied.^ 

A  sale  will  not  be  enjoined  merely  to  allow  the  mortgagor  to  re- 
deem. But  a  bill  which  avers  payment  of  the  mortgage  debt,  and 
yet  offers  to  pay  any  balance  that  may  be  found  due  on  a  statement 
of  the  account,  and  prays,  in  the  alternative,  for  a  cancellation  of 
the  mortgage  if  the  debt  secured  by  it  should  be  found  to  be  fully 
satisfied,  or  for  a  redemption  from  the  mortgage  if  a  balance  should 
be  found  against  the  complainant,  contains  equity.^ 

1814.  Where  one  purchased  land  subject  to  a  mortgage,  which 

1  Cole  V.  Savage,  Clarke  (N.  Y.),  361.  A  preliminary  injunction  may  be  granted 

-  Draper  v.  Davis,  104  U.  S.  347;  Ivor-  upon  the  affidavit  of  the  mortgagor  that  he 

negay  v.  Spicer,  76  N.  Y.  95;  Pritchard  v.  has  satisfied  the  debt.     Newmann  y.  Frevin, 

Sanderson,    84   N.    C.    299 ;    Harrison    v.  42  La.  Ann.  720,  7  So.  Rep.  799. 

Bray,  92  N.  C.  488 ;  Gooch  v.  Vaughan,  92  *  Bloomingdale  v.  Barnard,  7  Hun,  459 ; 

N.  C.  610;  Hutaff  y.  Adrian,  112  N.  C.  259,  Dings  v.  Parshall,    7  Hun,  522;  Brigham 

17  S.  E.  Kep.  78  ;  Tillery  v.  Wrenn,  86  N.  C.  v.  White,  44  Iowa,  677. 

217;  Capeharty.  Biggs,  77  N.  C.  261  ;  Pur-  ^  Whitley  t;.  Dunham  Lumber  Co.  89  Ala. 

nell  V.  Vaughan,  77  N.  C.  268;  Bridgers  v.  493;  Fields  v.  Helms,  70  Ala.  460;  Gilmer 

Morris,  90  N.  C.  32;  Rossett  v.  Fisher,  11  v.  Wallace,  79  Ala.  464.     In  the  case  first 

Gratt.  492;  Curry  v.  Hill,  18  W.  Va.  370;  cited   the  court  say:  "The  denials   of  Jhe 

Lallance  v.  Fisher,  29  W.  Va.  512,  2  S.  E.  answer  of  the  fact  of  payment  and  satisfac- 

Rep.  775;  Muller  v.  Stone,  84  Va.  834,  6  tion  did  not  entitle  the  defendants  to  a  dis- 

S.  E.  Rep.  223;  Shultz  v.  Hansbrough,  33  solution  of  the  injunction  of  the  threatened 

Gratt.  567  ;  O.sburn  i>.  Andre,  58  Miss.  609  ;  sale.     The  fact  of  payment  was  not  essen- 

Dickerson  v.  Hayes,  26  Minn.  100,  1  N.  W.  tial  to  that  aspect  of  the  bill  which  sought 

Rep.  834;  New  Eng.  Mortg.  Co.  v.  Powell,  an    accounting   and    redemption    from  the 

(Ala.),  12  So.  Rep.  53;  Hooker  v.  Austin,  mortgage,  and  the  injunction  was  properly 

41  Miss.  717  ;  Goodrich  V.  Foster,  131  Mass.  retained   for  the   purposes   of   redemption, 

217;  Waite  i'.  Ballou,  19  Kans.  601.  aside  from  the  prayer  for  cancellation  on 

^  Frazier  v.  Keller,  71   Md.  58,  20   Atl.  the  theory  of  satisfaction." 
Rep.  134.      See,  also,  Whitly  v.   Dunham 
Lumber  Co.  89  Ala.  493,  7  So.  Rep.  810. 

VOL.  II.                44  689 


§§  1815,  1816.]       POWER   OF   SALE   MORTGAGES   AND  TRUST   DEEDS. 

he  supposed  was  in  the  common  form,  without  a  power  of  sale, 
and  would  require  three  years'  possession  by  the  mortgagee  to  effect 
a  foreclosure,  the  mortgage  having  been  made  the  same  day  and  not 
recorded,  a  sale  under  the  power  was  enjoined  upon  his  application. 
He  was  allowed,  howevei',  only  time  to  raise  the  money,  and  not 
the  three  years  in  which  to  redeem. ^  It  is  conceived  that,  in  those 
parts  of  the  country  in  which  power  of  sale  mortgages  are  now  the 
usual  and  common  form,  an  injunction  would  not  now  be  granted  on 
like  grounds. 

1815.  Clouding  title.  —  The  fact  that  the  sale  if  made  would, 
in  the  apprehension  of  the  petitioner,  result  in  clouding  his  title, 
is  not  such  a  threatened  injury  that  an  injunction  should  be  granted 
to  restrain  it.^  If  the  mortgagee  should  attempt  to  sell  property 
not  included  in  the  mortgage,  or  an  interest  greater  than  the  mort- 
gage conveyed  to  him,  the  sale  would  be  of  no  effect  as  regards 
such  property  or  interest,  and  would  not  really  cloud  the  title  to  it.^ 
That  the  debt  and  mortgage  are  barred  by  the  statute  of  limita- 
tions, the  mortgagor  being  in  possession,  is  not  a  sufficient  ground 
for  enjoining  a  sale,  for  a  sale  would  carry  to  the  purchaser  no 
title.  The  mortgagor  has  a  full  defence  to  an  action  for  ejectment 
when  brought  by  the  purchaser.  The  only  result  of  the  sale  would 
be  a  clouding  of  the  title,  which  is  not  a  ground  for  interference 
with  the  sale.* 

For  the  same  reason  a  sale  will  not  be  enjoined  for  the  reason 
that  the  mortgagee  has  no  legal  authority  to  sell.^ 

1816.  The  insolvency  of  the  trustee  in  a  deed  of  trust  is  no 
ground  for  restraining  a  sale  of  the  property  upon  the  application 
of  the  grantor,  unless  it  is  shown  that  there  is  danger  that  the 
trustee  will  misapply  the  moneys  arising  from  the  sale.^  But  upon 
the  application  of  one  who  is  interested  in  the  disbursement  of  the 
money,  and  the  showing  of  sufficient  cause,  a  court  of  equity  should 

1  Piatt  V.  McCliire,  3  Wood.  &  M.  151.  Preiss  v.  Campbell,  59  Ala.  635.     See,  how- 

•  Armstrong  v.  Sanford,  7  Minn.  49,  per  ever,  Corles  v.  Lashley,  15  N.  J.  Eq.  116. 

Atwater,  J.;  Montgomery  v.   McEwen,    9  ^  Hulaff  v.  Adrian  (N.  C),  17  S.  E.  Rep. 

Minn.  103;  Buettel  v.  Harmount,  46  Minn.  78. 

481,  49    N.   W.  Rep.  250;  Southerland  v.  ^  Chapman  v.  Younger,  32  S.  C.  295,  10 

Harper,  83  N.  C.  200;    Browning  v.  Lav-  S.  E.  Rep.  1077. 

ender,  104  N.  C.  69,  10  S.  E.  Rep.  77.  6  Tooke  v.  Newman,  75  111.  215.     Walker, 

But  see  Hubbard  d.  Jasinski,  46  111.  160;  C.  J.:  "Insolvency,  or  the  want  of  large 

Gardner  v.  Terry,  99   Mo.  523,   12  S.  W.  capital,  by  no  means  implies  a  want  of  iu- 

Rep.  888.  tegrity  or  business  capacity.     He  may  have 

3  Armstrong   v.    Sanford,    7    Minn.   49 ;  these   in   the   highest   degree,   and   yet  be 

poor." 

690 


WHEN   EXERCISE   OF   POWER   MAY   BE   ENJOINED.      [§§  1817-1820. 

require  security  of  the  trustee  before  allowing  him  to  proceed  with 
the  execution  of  the  trust.^ 

1817.  Scarcity  of  money  or  business  depression.  —  The  fact 
that  at  the  time  of  the  proposed  sale  under  a  tnortgage  or  trust 
deed  money  is  scarce,  and  that  the  terms  of  the  sale  require  a  large 
cash  payment,  is  no  ground  for  an  injunction;^  nor  is  the  fact  that 
there  is  a  general  depression  in  business,  and  the  weather  incle- 
ment at  the  season  of  the  year  of  the  proposed  sale.'^ 

1818.  A  referee  or  master  may  be  associated  with  the  mort- 
gagee for  the  purpose  of  insuring  a  fair  sale,  or  a  sale  of  only 
enough  of  the  premises  to  satisfy  the  mortgage  debt ;  instead  of 
enjoining  a  sale,  where  there  is  apprehension  of  an  oppressive  or 
improper  exercise  of  it.^ 

1819.  Recovery  back  of  money  paid  under  duress.  —  Besides 
these  remedies  by  restraining  or  setting  aside  a  sale  improperly  ex- 
ercised, in  case  a  mortgagor  is  obliged  to  pay  a  sum  not  properly 
chargeable  to  him,  in  order  to  prevent  the  sale  of  his  property 
under  the  power,  he  may  recover  back  the  money  so  paid  in  a  suit 
at  law ;  as,  for  instance,  where  a  mortgagee  would  not  stop  a  sale 
unless  the  mortgagor  would  pay  an  extortionate  sum  for  expenses 
then  incurred  in  the  proceedings  to  sell,  and  the  mortgagor  paid  the 
amount  under  protest.^ 

1820.  The  mortgagee's  damages  and  costs  when  wrongfully 
enjoined  are  not  only  the  usual  taxable  costs  and  counsel  fees,  but 
also,  when  the  sale  does  not  yield  enough  to  satisfy  the  debt,  in- 
terest on  it  while  the  collection  of  it  was  suspended,  and  the  value 
of  the  emblements  removed  by  the  owner  in  the  mean  time.*" 

Where  the  owner  of  the  equity  of  redemption,  upon  the  grant- 
ing of  a  temporary  injunction  in  his  favor  against  a  sale  under  a 
power  contained  in  a  second  mortgage,  was  required  to  execute  a 
bond  to  the  mortgagee  conditioned  that,  in  case  it  should  be  de- 
termined that  the  mortgagee  was  entitled  to  hold  the  premises 
chargeable  for  the  payment  of  his  mortgage  in  full,  the  obligor 
sliould  pay  the  overdue  interest  thereon,  with  interest  on  that 
sum,  and  "  keep    down    all  interest  accruing    or    accrued "  on  the 

'  Terry  v.  Fitzgerald,  32  Gratt.  843.  6  Close   v.   Phipps,   7    Man.    &   G.   586. 

For  a  bond  required  of  a  complainant  in  Tindal,  C.  J. :  "  The  money  was  obtained 

such  a  case,  and  the  rights  under  such  bond,  by  what  the  law  would  call  duress;  as  the 

see  Foster  v.  Goodrich,  127  Mass.  17G.  plaintiff  was  obliged  either  to  pay  it  or  to 

2  Mullerj;.  Bayly,  21  Gratt.  521;  Muller  suffer  her  estate  to  be  sold,  and  incur  the 

)•.  Stone,  84  Va.  834,  6  S.  E.  Hep.  223.  expense  and  risk  of  a  bill  iu  equity."     And 

'■'  Caperton  r.  Landcraft,  3  W.  Va.  540.  see  Vcchte  v.  Brownell,  8  Paige,  212. 

^  Van  Bergen  v.  Demarest,  4  Johns.  Ch.  ^  Aldrich  v.  Reynolds,  1  Barb.  Ch.  613. 
37. 

691 


§  1821.]       POWER   OF   SALE   MORTGAGES   AND   TRUST   DEEDS. 

first  mortgage  ;  and  subsequently  the  injunction  was  dissolved,  the 
bill  dismissed,  and  the  premises  sold  under  the  power  for  a  sum 
sufficient  to  pay  the  first,  but  not  the  second,  mortgage  in  full, 
—  it  was  held  that  the  mortgagee  was  entitled  to  recover  in  a 
suit  upon  the  bond,  the  interest  on  the  second  mortgage  having 
been  paid,  the  interest  accrued  on  the  first  mortgage  at  the  time 
the  injunction  issued,  as  well  as  the  interest  accruing  thereon  from 
that  time  to  the  dissolution  of  the  in j unction, ^  but  not  afterwards.^ 
The  obvious  purpose  of  the  clause  providing  that  the  owner  of  the 
equity  of  redemption  should  pay  the  accrued  interest  on  the  first 
mortgage  was,  that,  while  the  second  mortgagee  was  restrained  from 
selling,  the  holder  of  the  first  mortgage  should  be  paid  the  interest 
due  upon  that  mortgage,  so  that  he  would  not  foreclose,  and  thereby 
cut  off  the  second  mortgagee.^ 

VI.  Personal  Notice  of  Sale. 

1821.  No  notice  at  all  is  necessary  unless  made  so  by  statute, 
or  by  the  power  itself;*  the  sale  may  be  private.^  When  that  pro- 
vides only  for  a  published  notice,  this  is  all  that  any  one  interested 
in  the  property  is  entitled  to,  unless  there  be  an  agreement  for  an 
express  notice.^  In  no  case  is  an  actual  personal  notice  of  the 
sale  to  the  mortgagor  necessary  unless  this  is  provided  for  in  the 
mortgage,  or  has  been  promised  in  some  other  way,'  or  is  due  to 

1  Goodrich  v.  Foster,  131  Mass.  217.  notice,  but   notice  by  advertisement  in   a 

2  Foster  v.  Goodrich,  127  Mass.  176.  newspaper.     To  say  that  a  further  personal 
^  Goodrich  v.  Foster,  131  Mass.  217,  per    notice  was  required  by  implication  would  be 

Endicott,  J.  to  annex  a  condition  to  the  power  of  sale 

*  Davey  v.  Durrant,  1  De  G.  &  J.  553.  which  the  maimer  of  the  power  did  not  see 

The  power  in  this   case  authorized   a  sale  fit  to  provide,  and  the  court  would  be  mak- 

either  by  public  sale  or  private  contract,  ing  a  contract  for  the  parties  instead  of 

Marston  v.  Brittenham,  76   111.  611.     See,  enforcing  the  one  made   by   themselves." 

al.so,  Hoodless  r.  Reid,  112  111.  105;  In  re  Per  Mr.  Justice  Sheldon.     Also,  Cleaver  v. 

British  Canadian  Loan  Co.  16  Ont.  15  ;  Li  Green,  107  111.  67  ;  Ritchie  v.  Judd,  137  111. 

re   Gilchrist,  11    Ont.  537;  Canada  Build.  453,  27  N.  E.  Rep.  682. 

Soc.  V.  Teeter,  19  Ont.  156.  In  Capehart  i-.  Biggs,  77  N.  C.  261,  Pear- 

°  Mowry  v.  Sanborn,  68  N.  Y.  153,  160,  son,  C.  J.,  says  that  the  mortgagee  before 

per  Andrews,  J. ;  Martin  v.  Paxson,  66  Mo.  selling  ought  to  give  the  mortgagor  reason- 

260,  266,  per  Hough,  J.  able  notice  that  in  default  of  payment  he 

6  Dyer  v.  Shurtleff,  112    Mass.   165,  17  will  sell,  and  that  the  want  of  such  notice 

Am.  Rep.  77 ;  Hurt  v.  Kelly,  43  Mo.  238 ;  is  ground  for  enjoining  the  sale.     But  this 

Manning  v.  Elliott,  92  N.  C.  48  ;  Bridgers  decision  is  all  wrong.     It  takes  the  parties 

V.  Morris,  90  N.  C.  32;  Carver  v.  Brady,  under  guardianship;  and  more,  it  makes  a 

104  N.  C.  219,  10  S.  E.  Rep.  565.  contract  for  them.     This  case  has  since  been 

~i  Princeton  Loan  &  Trust  Co.  r.  Munson,  overruled  on  this  point.     Manning  y.  Elliot, 

60  111.  371.     "The  debtor  himself  here  pre-  92  N.  C.  48;  Bridgers  v.  Morris,  90  N.  C. 

scribed  the  kind  of  notice  which  should  be  32.     See,  also,  Hoodless  r.  Reid,  112   111. 

given  in  case  of  sale:  it  was  not  personal  105;  Marston  v.  Brittenham,  76  111.  611. 

692 


PERSONAL   NOTICE   OF   SALE.  [§  1822. 

the  mortgagor  in  fairness  because  lie  might  be  thrown  off  his  guard 
by  prior  acts  or  proceedings  of  the  mortgagee.^  When  the  power 
authorizes  a  sale  either  by  public  auction  or  private  contract,  the 
mortgagee  may  sell  by  private  contract  without  making  a  previous 
attempt  to  sell  by  auction.^  The  deed  in  such  a  case  should  prop- 
erly refer  to  the  power  in  the  mortgage  ;  but  even  if  it  does  not 
refer  to  the  mortgage  or  the  power,  a  conveyance  by  the  mortgagee 
will  be  deemed  to  be  in  execution  of  the  power,  and  not  an  assign- 
ment of  the  mortgage,  if  the  note  secured  be  not  assigned  to  the 
grantee.'^  The  rule  of  construction  in  regard  to  conveyances  con- 
taining no  reference  to  a  power  is  now  generally  if  not  universally 
declared  to  be  that,  if  such  a  conveyance  would  have  some  effect  if 
referred  to  an  interest,  but  would  not  have  full  effect  without  ref- 
erence to  a  power,  it  should  have  effect  by  virtue  of  the  power.^ 

A  mortgagee  is  not  bound  to  adopt  any  other  mode  of  advertise- 
ment and  sale  than  that  specified  in  the  mortgage ;  even  to  recover 
upon  an  agreement  by  a  third  person  that,  if  the  mortgagee  is 
obliged  to  sell  the  mortgaged  premises  for  breach  of  condition,  and 
shall  advertise  and  sell  the  same,  such  third  person  will  purchase 
the  premises  and  pay  the  amount  of  the  mortgage.^ 

1822.  All  the  essential  requisites  of  the  power  must  be 
strictly  complied  with  ;  ^  and  when  there  are  statutory  provisions 
relating  to  the  notice  of  the  sale,  or  the  conduct  of  it,  these  must 
be  strictly  followed.  These  requirements  of  the  power  and  of  the 
statute  are  conditions  on  which  the  foreclosure  depends,  and  if  not 
fulfilled  the  sale  is  void."  The  statute  in  force  at  the  time  the 
mortgage  was  executed  governs,  and  the  rights  of  the  parties  are 
not  affected  by  a  subsequent  act.^ 

1  Tartt  V.  Clayton,  109  111.  579;  Webber  will  be  so  referred."     Per  Hemingway,  J., 

1-.  Curtis,  104  111.  309.  iu  Lanigan  v.  Sweany,  53  Ark.  185,  13  S. 

-  Davey  v.  Durraut,  1  De  G.  &  J.  553.  W.  Rep.  740,  who  states  the  rule  and  cites 

3  Lanigan    v.  Sweany,  53  Ark.  185,  13  the  authorities.     The  case  of  Pease  v.  Iron 

8.  W.  Rep.  740.  Co.  49  Mo.  124  is  overruled  in  Campbell  v. 

*  1   Sugd.    Powers,   412-422;    Campbell  Johnson,  65  Mo.  439. 

I'.  Johnson,  65  Mo.  439  ;  Warner  v.  Insur-  ^  Stickney  v.  Evans,  127  Mass.  202. 

ance  Co.  109  U.  S.  357,  3  Sup.  Ct.  Rep.  ^  Ormsby  v.  Tarascon,  3  Litt.  404 ;  Dana 

221 ;  Funk  I'.  E>:gleston,  92111.  515;  Blagge  v.  Farrington,    4    Minn.    433;    Gibson    v. 

V.  Miles,  1  Story,  426,  445-450.  Jones,  5  Leigh,  370. 

"  This  seems  reasonable  and   right,  for  ^  New   York :    Low   v.   Purdy,   2    Lans. 

the  grantor  is  understood  in  e(juity  to  en-  422;  Cole  r.  Moffitt,  20  Barb.  18;  Cohoes 

gage  with  his  grantee  to  make  his  convey-  Co.  v.  Goss,  13  Barb.  137  ;  King  v.  Duntz, 

ance  as  effectual  as  he  has  power  to  make  11  Barb.  191  ;  St.  John  v.  Bumpstead,  17 

it ;  and  it  should  be  assumed  that  he  acted  Barb.  100;  Van  Slyke  v.  Sheiden,  9  Barb. 

by  virtue  of  whatsoever  right  enabled  him  to  278. 

discharge  his  full  undertaking,  and  his  act  *  Smith  v.  Green,  41  Fed.  Rep.  455. 

693 


§§  1823-1825.]     POWER  of  sale  mortgages  and  trust  deeds. 

Corporate  mortgages  usually  provide  for  a  continuance  of  default 
for  a  certain  time  after  notice  shall  be  given  to  the  mortgagor  of 
intention  to  sell  under  the  power.^  A  strict  compliance  with  such 
provision  is  essential  to  a  valid  sale  under  the  power.^ 

Under  a  statute  or  power  requiring  the  service  of  notice  upon  the 
mortgagor  and  others  interested  in  the  equity  of  redemption,  a  sale 
without  such  notice  does  not  bar  the  right  of  redemption  of  a  person 
entitled  to  it,  even  though  he  had  actual  notice  of  the  sale.  He  is 
entitled  to  the  legal  notice.^ 

If  the  statute  provides  for  service  of  notice  upon  the  personal 
representative  of  a  deceased  mortgagor,  but,  no  personal  representa- 
tive having  been  appointed,  service  is  made  upon  his  heirs  at  law, 
the  sale  is  valid  as  against  them.^ 

1823.  "When  the  notice  required  is  a  personal  notice  to  the 
mortgagor  or  his  assigns,  if  fairly  given  pursuant  to  the  powei",  it 
does  not  matter  that  the  person  upon  whom  it  is  served  is  an  infant, 
or  is  insane,  or  under  any  other  disability.'^ 

1824.  A  mortgagor  cannot  waive  notice  for  others.  If  those 
claiming  under  the  mortgagor  are  entitled  to  notice,  he  cannot  waive 
it  as  against  them  and  consent  to  a  sale.^  But  he  may  waive  it  for 
himself.'^ 

1825.  If  a  mortgagee  voluntarily  promises  the  mortgagor  not 
to  sell  under  the  power  without  notice  to  him,  there  being  no  con- 
sideration for  the  promise,  it  is  not  legally  binding  upon  him,  and 
he  may  sell  under  the  power,  or  assign  the  mortgage  to  others  who 
may  sell  without  giving  notice,  and  such  assignees  are  not  liable 
to  action  for  depriving  the  mortgagor  of  his  equity  of  redemption, 
even  if  they  obtained  the  assignment  by  fraud  and  falsehood.^  The 
promise  of  the  mortgagee  would  not  bind  his  assignee  or  a  pur- 
chaser at  the  sale  who  had  no  knowledge  of  it.  But  a  sale  by  the 
person  who  made  such  promise,  without  giving  the  promised  notice, 
would  be  set  aside  unless  a  bona  fide  purchaser  had  acquired  title 

^  §1191  a;  Jones  on  Corporate  Bouds  507,  4  N.   Y.   Supp.    569,    the  court   say  : 

&  Mortgages,  §  384.  "  The  spirit  of  the  statute   is,  that  notice 

2  Robinson  i'.  Ala.  &  G.  Manuf.  Co.  48  shall  be  given  to  those  whose  interests  are 
Fed.  Rep.  12.  to  be  affected.     The  spirit  of  the  statute 

3  Root  r.  Wheeler,  12  Abb.  Pr.  294.  is  respected,  though  its   letter  be  not  ob- 
*  Bond  V.  Bond,    51    Hun,  507,  4  N.  Y.     served,  by  service  -upon  parties  in  interest. 

Supp.    569,    citing     in    support    King    ;;•  The  letter  killeth,   but    the  spirit   maketh 

Duntz,  11  Barb.  191  ;    Anderson  v.  Austin,  alive." 

34  Barb.  319;  Cole  y.  Moffitt,  20  Barb.  18  ;  ^  Tracey   v.   Lawrence,    2    Drew.    403; 

Hubbell  V.  Sibley,  5  Lans.  51 ;  Van  Schaack  Robertson  v.  Lockie,  15  Sim.  285. 

V.  Saunders,  32   Hun,  515;  and  criticising  6  Forster  v.  Hoggart,  15  Q.  B.  155. 

Mackenzie   v.  Alster,  64  How.  Pr.  388,  to  "^  Maulsby  v.  Barker,  3  Mackey,  165. 

the  contrary.     In  Bond  v.  Bond,  51  Hun,  ^  Randall  u.  Hazelton,  12  Allen,  412. 

694 


PUBLICATION   OF  NOTICE.  [§§  1826,  1827. 

by  receiving  a  deed  before  any  proceedings  to  set  the  sale  aside  were 
begun, 1  But  the  sale  will  not  be  set  aside  on  the  ground  of  such  a 
promise  when  the  evidence  as  to  the  promise  is  conflicting,  and  the 
conduct  of  the  debtor  after  the  sale  has  been  inconsistent  with  his 
reliance  upon  such  a  promise.^  If  a  mortgagee  has  promised  a 
junior  mortgagee  or  any  one  claiming  under  the  mortgagor  that  he 
will  notify  him  if  he  should  wish  to  enforce  the  mortgage,  or  that 
he  will  give  him  an  account  of  his  claim,  his  entry  and  foreclosure 
without  such  special  notice  is  fraudulent,  and  the  right  to  redeem 
remains  open  to  such  party  until  the  stipulated  notice  is  given  or 
account  rendered,  the  property  remaining  in  the  hands  of  the  mort- 
gagee who  promised  to  give  such  notice.^ 

1826.  Neglect  to  give  notice  may  be  ground  for  setting  aside 
a  sale.  Where  the  owner  of  the  equity  of  redemption  gave  money 
to  the  mortgagor  to  pay  an  instalment  of  interest,  but  the  mortgagor 
did  not  pay  it  over  to  the  mortgagee,  and  the  owner  being  informed 
that  the  mortgagor  had  not  paid  the  interest  sent  word  to  the  mort- 
gagee's attorney  that  if  the  mortgagor  did  not  pay  the  interest  he 
would,  and  the  mortgagee  afterwards,  without  giving  notice  to  the 
owner,  sold  the  estate,  although  the  mortgagee  acted  in  good  faith 
and  in  exact  conformity  to  the  provisions  of  the  mortgage,  and  sold 
the  estate  to  a  purchaser  who  in  good  faith  was  the  highest  bidder 
at  the  sale,  no  deed  having  been  delivered,  the  sale  was  set  aside  in 
equity  on  the  ground  that,  after  it  became  evident  that  the  mort- 
gagor would  not  pay,  notice  should  have  been  given  to  the  owner.^ 

VII.  Publication  of  Notice. 

1827.  The  notice  usually  required  in  powers  of  sale  is  a  pub- 
lication for  a  certain  length  of  time  in  one  or  more  newspapers  pub- 
lished in  the  county  in  which  the  premises  are  situate.  As  will  be 
seen  by  reference  to  the  statutes  relating  to  power  of  sale  mort- 
gages, the  substance  of  the  notice  and  the  manner  of  giving  it  are 
prescribed  in  several  States  ;  and  where  this  is  the  case  the  require- 
ments of  the  statute  must  be  strictly  followed,  whatever  may  be  the 
terms  of  the  power.^  The  power  may  impose  additional  obligations, 
but  cannot  take  away  any  of  those  imposed  by  statute  ;  as,  for  in- 
stance, a  private  sale,  though  expressly  authorized  by  the  mortgage, 

1  Teste]  I'.  Primm,  109  111.  353;  Cassady  v.  Cross,  45  N.  H.  574;  Rutherford  v. 
V.  Wallace,  102  Mo.  575,  15  S.  W.  Rep.  Williams,  42  Mo.  18;  Clarksoa  v.  Creely, 
138.  40  Mo.  114,35  Mo.  95. 

2  Ilairstoii  v.  Ward,  108  111.  87.  ^  Drinan  v.  Nichols,  115  Mass.  353. 

3  Hail  V.  Cushinan,  14  N.  II.  171 ;  Green  6  Shillabcr  v.  Robinson,  97  U.  S.  68, 

695 


§§  1828,  1829.]     POWER  of  sale  mortgages  and  trust  deeds. 

would  not  bar  the  equity  of  redemption  when  a  sale  at  public  auc- 
tion, after  giving  specified  notices,  is  required  by  statute.^  It  has 
been  held  that  a  foreclosure  according  to  the  statutory  requirement 
is  valid  even  when  the  power  imposes  additional  requirements.-  In 
the  absence  of  statutory  requirements,  the  kind  of  notice,  the  place 
where  it  shall  be  given,  the  time  when  it  shall  be  given,  and  the 
duration  or  number  of  publications,  are  properly  subjects  of  con- 
tract between  the  parties,  and  their  agreement  is  binding  upon 
them.^  The  parties  may  agree  that  the  notice  shall  be  published 
in  a  county  or  State  other  than  that  in  which  the  land  is  situated  ; 
or  they  may  agree  to  dispense  with  notice  altogether. 

1828.  Statutes  regulating  the  foreclosure  of  mortgages  have 
no  application  to  mortgages  of  real  estate  situated  out  of  the  State 
where  the  statute  was  enacted.*  The  court  cannot  in  such  case  in- 
terfere with  or  control  a  sale  made  within  the  State  according  to 
such  terms  as  the  parties  have  agreed  upon  in  the  power,  unless  it 
appears  that  these  terms  are  contrary  to  the  statutes  or  law  of  the 
State  or  country  where  the  land  is  situated,  or  that  there  is  some 
illegality  in  the  proceedings  to  sell.  The  parties  to  a  mortgage 
have  the  power,  in  the  absence  of  any  statute  regulation,  to  agree 
upon  the  manner  in  which  the  property  may  be  sold  to  realize  the 
security.  Therefore  a  sale,  after  specified  notices  in  the  city  of 
New  York,  of  lands  situate  in  Colorado,  authorized  by  mortgage, 
cannot  be  restrained  by  the  courts  of  New  York  as  being  in  conflict 
with  the  statutes  of  that  State.  The  only  ground  of  interference 
would  be  that  the  sale  provided  for  was  in  conflict  with  the  laws  of 
Colorado.^ 

1829.  Fairness  required.  —  In  giving  the  notice  the  mortgagee 
is  required  to  act  in  a  business-like  manner,  with  a  view  to  obtain  as 
large  a  price  as  he  reasonably  can  with  due  diligence  on  his  part, 
and  in  common  fairness  towards  the  mortgagor.*^  So  far  as  the 
deed  leaves  any  matters  pertaining  to  the  exercise  of  the  power  to 

1  Lawrence  v.  Farmers'  Loan  &   Trust  Y.  71.     And  see  Webb  v.  Haeffer,  53  Md. 

Co.  13  N.  Y.  642.     A  doubt  has  been  ex-  187. 

pressed   whether  this    decision   should    be  ^  Butterfield  v.  Farnham,  19  Minn.  85. 

e.Ktended  to  any  requirement  other  than  a  ^  Martin  v.  Paxson,  66  Mo.  260. 

sale   at  public  auction;  whether  a  compli-  *  Elliott  v.  Wood,  45  N.  Y.  71  ;  Central 

ance  with  the  statute  in  any  other  respect  is  Gold  Mining  Co.  v.  Piatt,  3  Daly,  263. 

necessary;    as,  for  instance,  whether  com-  ^  Carpenter  i;.  Black  Hawk  Gold  Mining 

pliance  with   a  provision  in  a  power  that  Co.  65  N.  Y.  43. 

the  notice  of   sale  shall   be   for  a  shorter  ^  Matthie  v.  Edwards,  2  Coll.  465  ;  Hoff- 

time,  and  in  a  different  manner,  from  that  man  v.  Anthony,  6  R.  I.  282,  7  Am.  Dec. 

required  by  statute,would  not  be  sufficient.  701  ;  Meacham  v.  Steele,  93  111.  135. 
Elliott  V.  Wood,  53  Barb.  285,  305,  45  N. 

696 


PUBLICATION   OF   NOTICE.  [§  1830. 

the  discretion  of  the  mortgagee  or  trustee,  a  fair  and  honest  exer- 
cise of  his  judgment  is  demanded.^ 

The  provisions  of  the  power  and  of  any  statute  regulating  the  ex- 
ercise of  it  must  be  strictly  complied  with ;  '^^  but  at  the  same  time 
such  strictness  and  literal  compliance  should  not  be  exacted  as 
would  destroy  the  power  and  render  the  intended  security  valueless.^ 
The  proceedings  may  be  regarded  as  ex  parte^  and  the  mortgagor 
may  be  divested  of  his  estate  without  his  knowledge  and  without 
his  consent  other  than  that  contained  in  the  mortgage  itself.  But 
under  a  statute  providing  for  a  certain  notice  of  sale  in  case  the 
parties  fail  to  provide  for  a  notice  in  the  deed,  it  has  been  held  that 
the  notice  prescribed  by  statute  may  be  used  in  case  the  mode  of 
notice  agreed  upon  in  the  mortgage  is  impossible  ;  as  where  this  re- 
quired an  advertisement  every  other  day  in  some  newspaper  pub- 
lished in  the  county,  when  there  was  no  paper  other  than  two  weekly 
papers  published  in  the  county.* 

1830.  Burden  of  proof  as  to  notice.  —  When  the  validity  of  a 
sale  under  a  power  is  questioned,  on  the  ground  that  the  advertise- 
ment of  the  sale  was  not  made  in  pursuance  of  the  deed,  the  better 
opinion  is  that  in  an  action  at  law  it  will  be  presumed,  after  the 
execution  of  a  deed  under  the  power  of  sale  to  the  purchaser,  that 
all  the  terms  of  th^  power  and  all  requirements  as  to  notice  have 
been  complied  with.  Certainly,  in  an  action  of  ejectment  by  the 
purchaser  against  the  grantor  or  other  person  in  possession,  no  evi- 
dence aside  from  the  deed  to  such  purchaser  and  the  recitals  in  it 
is  necessary  to  show  title  and  right  of  possession  in  the  plaintiff.^ 
It  would  seem,  moreover,  that  the  defendant  would  not  be  permitted 
to  prove  that  notice  of  sale  was  not  given  under  the  power,  because 

1  Ingle  V.  Culbertson,  43  Iowa,  265.  licity,  and  usually  made   them  subject  to 

2  Lee  V.  Mason,  10  Mich.  403  ;  Hebert  v.  some  reasonable  redemption.  As  in  all 
Bulte,  42  Mich.  489,  4  N.  W.  Rep.  215;  other  cases  of  remedy  by  act  of  the  party, 
Doyle  i>.  Howard,  16  Mich.  261 ;  Sherwood  it  has  been  held  that  every  essential  pro- 
t'.  Reade,  7  Hill,  431  ;  Thompson  v.  Com-  vision  of  law  shall  be  complied  with,  and 
missioners,  79  N.  Y.  54  ;  Wood  v.  Lake,  62  so  appear.  Parties  may  add  to  these  condi- 
Ala.  489 ;  Hahn  v.  Pindell,  1  Bush,  .538 ;  tions,  but  cannot  dispense  with  them." 
Lunsford  v.   Speaks,  112  N.  C.  608,   17  S.        3  Waller  i;.  Arnold,  71  111.350. 

E.  Rep.  430.  <  Warehime  v.  Carroll  Co.  Build.  Asso. 

In  Pierce  v.  Grimley,  77  Mich.  273,  281,  44  Md.  512. 

Campbell,  J.,  said  :   "  The  introduction  of  ^  Savings  and  Loan  Soc.  v.  Deering,  66 

jiowers  of  sale  into  mortgages   was,  as  is  Cal.  281.     And  see  White  v.  Stephens,  77 

well  known,  a  device  to  escape  redemption;  Mo.  452;  Dryden  v.  Stephens,  19  W.  Va. 

Iiut  in  this  country,  from  the  beginning,  the  1;    Lallance  v.  Fisher,  29  W.   Va.  512,  2 

legislatures  have  stepped  in,  and  so  regu-  S.  E.  Rep.  775;   Lunsford  v.  Speaks,  112 

lated  the  sales  as  to  give  them  proper  pub-  N.  C.  608,  17  S.  E.  Rej).  430,  quoting  text. 

697 


§  1831.]        POWER    OF   SALE   MORTGAGES   AND    TRUST   DEEDS. 

the  deed  would  confer  upon  the  purchaser  the  legal  title  to  the  land.^ 
Yet  it  has  been  held,  in  a  few  cases  in  equity,  that  the  burden  of 
proving  a  proper  advertisement  rests  npon  the  purchaser  or  other 
party  insisting  upon  the  sale,^  and  that  recitals  in  a  deed  made  by 
the  person  clothed  with  the  power  in  execution  of  it  is  no  evidence 
of  compliance  with  the  prerequisites  to  a  valid  sale.^ 

On  a  bill  to  set  aside  a  sale  on  the  ground  that  the  notice  of  sale 
was  defective,  and  was  published  in  an  obscure  paper,  the  burden 
of  proving  these  defects  rests  with  the  complainant.*  It  is  pre- 
sumed that  the  terms  and  conditions  of  the  deed  of  trust  or  mort- 
gage were  complied  with  and  notice  of  sale  properly  given  ;  though 
this  presumption  arising  from  the  deed  under  the  power  and  its 
record  may  be  rebutted  in  equity  by  proof  to  the  contrary.^ 

A  sale  is  not  rendered  defective  by  the  fact  that  it  is  twice  ad- 
vertised, in  case  the  second  advertisement  is  rendered  necessary  by 
a  defect  in  the  first  notice,  and  no  sale  is  made  under  the  first  notice, 
and  it  is  not  shown  that  any  one  was  misled  by  it.^ 

1831.  A  notice  of  sale  published  before  any  default  has  oc- 
curred in  the  condition  of  the  mortgage  is  ineffectual  and  void,  and 
a  sale  under  it  invalid.'^  Equally  ineffectual  would  be  a  publication 
after  the  time  fixed  for  the  sale.  For  these  reasons  it  has  been 
necessary  to  determine  in  some  cases  when  a  publication  takes  place. 
The  time  of  publication  and  the  date  of  the  paper  are  not  always 
or  necessarily  the  same  ;  and  in  the  case  of  newspapers  published 
weekly,  it  is  the  general  practice  to  issue  a  portion,  at  least,  of  the 
copies  printed  in  advance  of  the  date  of  the  paper.  In  case  of  a 
newspaper  dated  Saturday,  the  whole  edition  of  which,  except  a 
small  fraction,  is  either  delivered  by  carriers  to  subscribers,  or  de- 
posited in  the  post-office  on  Friday,  the  publication  is  undoubtedly 
on  Friday.  When  the  proprietor  of  the  paper  sends  the  copies  out 
or  mails  them,  they  pass  beyond  his  control,  and  the  publication  is 
complete.  The  fact  that  a  small  portion  of  the  edition  is  not  issued 
till  Saturday  is  not  material.  It  is  not  necessary  that  a  notice 
should  appear  in  every  copy  of  the  whole  edition  regularly  printed 
and  published  in  order  to  constitute  a  publication.     In  such  case, 

1  Fulton  V.  Johnson,  24  W.  V.i.  95,  108,        *  Tartt  v.  Clayton,  109  111.  579. 
per  Green.  J. ;  Windett  v.  Hurlbut,  115  111.        ^  Burke  v.  Adair,  23  W.  Va.  139. 

403  ;  Lunsford  v.  Speaks,  112  N.  C.  608,  ^  Ritchie  j;.^Judd,  137  111.  453,  27  N.  E. 

17    S.   E.    Rep.    430,    quoting  text.      See  Rep.  682. 

§  1895.  "  Gustav.  Adolph.  Build.  Asso.  v.  Kratz, 

2  Gibson  v.  Jones,  5  Leigh,  370;  Wood  55  Md.  394  ;  Potomac  Manuf.  Co.  v.  Evans, 
V.  Lake,  62  Ala.  489.  84  Va.  717,  6  S.  E.  Rep.  2;  Long  v.  Long, 

3  Wood  V.  Lake,  62  Ala.  489.  79  Mo.  644. 

698 


PUBLICATION   OF   NOTICE.  [§§  1832-1834. 

therefore,  if  Friday  be  the  last  day  for  payment,  the  debtor  would 
have  the  whole  of  the  business  hours  of  that  day  in  which  to  make 
payment,  and  the  publication  would  be  in  advance  of  the  default, 
and  would  be  ineffectual  as  the  first  publication  of  the  notice.^  If 
such  a  publication  before  default  is  one  of  the  requisite  number  of 
publications  prior  to  the  time  appointed  for  the  sale,  a  subsequent 
postponement  of  the  day  of  sale  for  a  week  does  not  cure  the  defect, 
even  if  the  notice  be  again  published,  because  neither  the  notice 
fixed  for  the  day  of  sale  in  the  first  place,  nor  that  for  the  adjourned 
day,  is  published  for  the  requisite  number  of  weeks  before  the  sale.^ 

1832.  An  assignment  of  the  mortgage,  or  of  any  interest  in  it, 
after  the  first  advertisement  of  the  sale,  and  before  the  day  of 
sale,  invalidates  the  sale  if  the  assignee  continues  the  advertisement 
and  sells  under  it,  instead  of  advertising  anew  in  his  own  name.^ 
This  is  upon  the  ground  that  by  the  assignment  the  mortgagee 
ceased  to  have  any  interest  in  the  mortgage  ;  and  that  the  power 
cannot  be  separated  from  the  interest  in  the  land,  and  exercised  by 
one  having  no  interest  whatever  in  the  mortgage.  The  assignment, 
moreover,  vests  the  legal  interest  of  the  mortgage  in  the  assignee, 
and  the  power  necessarily  passes  with  it  unless  expressly  reserved. 
"  An  advertisement  in  the  name  of  the  mortgagee  in  this  case  can 
have  no  greater  force  or  effect  than  if  it  had  been  made  in  the  name 
of  a  third  person,  a  stranger  to  all  the  parties  in  interest,  which 
would  be  none  at  all."  * 

1833.  Change  of  statute  as  to  length  of  notice.  —  It  is  within 
the  power  of  a  legislature  to  change  an  existing  law  which  requires 
the  notice  under  a  power  of  sale  to  be  published  for  a  certain  length 
of  time  before  the  sale,  by  providing  for  a  shorter  time  of  publica- 
tion, and  such  a  law  is  not  unconstitutional  as  applied  to  mortgages 
existing  at  the  time  of  its  passage.^  It  does  not  impair  the  obliga- 
tion of  tiie  contract.  It  operates  upon  the  remedy  only,  and  it  does 
not  in  such  operation  impair  or  take  away  the  right  of  the  mort- 
gagee to  enforce  the  obligation.  The  time  of  notice  might  be 
lengthened,  and  the  remedy  rendered  less  speedy  and  convenient, 
without  impairing  the  obligation.  If  there  is  still  a  substantial 
obligation  left,  that  is  sufficient. 

1834.  How  long  after  publication  sale  may  be.  —  In  the  ab- 

1  Pratt  V.  Tinkcom,  21  Minn.  142.  *  Niles  v.  Ransford,  1  Mich.  338,  51  Am. 

2  Pratt  V.  Tinkcom,  21  Minn.  142.  Dec.  95,  per  Win<,',  J. 

*  Niles  V.  Ransford,  1  Mich.  338,  51  Am.        &  James  v.  StuU,  9  Barb.  482. 
Dec.   95;    Dunning  v.  McDonald   (Minn.), 
55  N.  W.  Rep.  864. 

699 


§  1835.]        POWER   OF   SALE   MORTGAGES   AND   TRUST   DEEDS. 

sence  of  any  express  provision  in  regard  to  the  time  at  which  a  sale 
shall  be  made  after  the  publication  of  the  notice,  the  sale  must  be 
within  such  a  reasonable  time  after  the  last  publication  as  not  to 
thwart  the  purpose  of  the  statute ;  but  it  need  not  be  within  the 
week  following  the  last  advertisement.^  A  provision  that  a  sale 
may  be  made  after  a  certain  number  of  days'  notice  does  not  limit 
the  sale  to  the  da}^  immediately  succeeding  the  expiration  of  the 
time  named.2  A  sale  made  without  advertising  it  for  the  time  re- 
quired by  the  deed  is  void.^ 

1835.  Selection  of  newspaper.  —  The  deed  of  trust  or  mort- 
gage usually  provides  for  the  publication  of  notice  of  the  sale  in 
some  newspaper  published  in  the  county  or  place  where  the  prop- 
erty is  situated.  No  particular  newspaper  being  designated,  the 
trustee  or  mortgagee  may  select  any  suitable  medium  for  the  publi- 
cation at  his  discretion,  observing  the  general  requirement  of  the 
trust  that  he  act  in  fairness  and  in  good  faith.^  It  is  not  requisite 
that  he  should  select  the  paper  of  the  largest  circulation,  or  of  any 
particular  class  or  character.  A  publication  in  a  law  and  adver- 
tising journal  of  limited  circulation  has  been  held  to  be  proper.^ 
Whether  or  not  such  a  paper  is  a  newspaper  is  a  proper  question 
for  the  jury .6  A  paper  issued  weekly,  and  principally  devoted  to 
matters  of  interest  to  a  particular  religious  denomination,  but  con- 
taining a  column  devoted  to  general  news,  is  a  "newspaper"  in 
which  a  notice  of  sale  may  be  published."  No  proof  of  the  notoriety 
or  extent  of  the  circulation  of  the  paper  in  which  the  notice  was 
published  is  required  to  sustain  a  sale  under  it.^ 

If  the  deed  does  not  prescribe  the  place  of  publication,  but  leaves 
this  to  the  discretion  of  the  trustee,  he  may,  in  a  fair  exercise  of  his 
discretion,  publish  notice  in  a  newspaper  printed  outside  the  limits 
of  the  State  in  which  the  land  is  situated.^ 

Under  a  statute  which  requires  the  publication  of  the  notice  in  a 
newspaper  "  printed  "  in  the  county,  evidence  that  the  notice  was 
published  in  a  newspaper  "  published  "  in  the  county  does  not  show 
a  compliance  with  the  statute. ^"^ 

1  Atkinson  v.  Duffy,  16  Minn.  45.  «  Meyer  v.  Opperman,  76  Tex.  105,  13 

-  Beal  V.  Blair,  33  Iowa,  318.  S.  W.  Rep.  174. 

3  Siemers  v.  Schrader,  88  Mo.  20.  ^  Hull  v.  King,  38  Minn.  349,  37  N.  W. 

*  Ingle    V.    Culbertson,    43    Iowa,    265  ;  Rep.  792  ;  Beeeher  v.   Stephens,  25  Minn. 

Thompson   v.   Heywood,    129    Mass.   401;  146;  Kerr  r.  Hitt,  75  111.51;  Hernandez  v. 

Stevenson  v.  Hano,  148  Mass.  616,  20  N.  E.  Drake,  81  111.  34. 

Rep.  200.  8  St.  Joseph  Manufacturing  Co.  i'.  Dag- 

5  Kellogg  V.  Carrico,  47  Mo.  157;  Ben-  gett,  88  111.  556. 

kendorf  i'.  Viucenz,  52  Mo.  441  ;  Taylor  v.  '^  Ingle  v.  Jones,  43  Iowa,  286. 

Reid,  103  111.  349.                                  "  i'  Bragdon  v.  Hatch,  77  Me.  433. 
700 


PUBLICATION   OF   NOTICE.  [§§  1836,  1837. 

A  change  in  the  name  of  the  paper  during  the  time  of  publication 
does  not  invalidate  the  notice,  if  it  appears  that  the  paper  is  the 
same,  or  has  taken  a  new  name  upon  a  consolidation  with  another 
paper.i 

1836.  Place  of  publication,  —  Where  the  deed  provided  that 
notice  of  sale  should  be  given  "  by  advertisement  in  some  news- 
paper printed  in  St.  Louis  and  Franklin  County,"  and  notice  was 
given  only  in  a  newspaper  printed  in  the  latter  county,  the  sale  was 
declared  void.  The  deed  being  recorded,  the  purchaser  had  notice 
of  its  requirements,  and  was  bound  by  them.^  A  requirement  in  a 
deed  of  trust  that  sixty  days*  notice  shall  be  given  in  newspapers 
published  in  Richmond,  Virginia,  and  in  the  city  of  New  York, 
must  be  fully  complied  with  to  effect  a  valid  sale ;  and  the  fact  that 
the  mortgagee  was  in  Virginia  where  the  land  was  situated,  and 
communication  with  New  York  was  prohibited  on  account  of  the 
pending  war,  is  no  excuse  for  failure  to  publish  the  notice  as  re- 
quired.^ 

Where  the  record  of  a  mortgage  is  erroneous  as  to  the  place  where 
the  publication  of  notice  of  sale  shall  be  made,  but  the  publication 
is  made  as  provided  in  the  mortgage  itself,  the  notice  of  sale  is  not 
bad.  The  inaccuracy  of  the  record  is  the  fault  of  the  recording 
officer,  and  the  mortgagee  has  a  right  to  presume  that  the  mortgage 
has  been  correctly  recorded.* 

1837.  Posting  in  public  places.  —  A  deed  of  trust  required 
notice  of  sale  to  be  posted  in  four  public  places  in  the  county,  and 
two  of  the  notices  were  posted  at  different  places  in  the  same  town. 
Objection  was  taken  that  the  town  was  but  one  public  place  ;  but 
the  court,  without  admitting  that  there  was  anything  in  the  objec- 
tion, held  that  it  could  only  be  availed  of  in  equity,  and  not  in  an 
action  at  law.^  Under  a  deed  which  provides  for  a  sale  on  thirty 
days'  notice  by  posting,  if  the  notices  have  been  put  up  that  number 
of  days  before  the  sale,  it  is  not  necessary  to  the  validity  of  the  sale 
that  the  notices  shall  remain  posted  all  the  time  up  to  the  sale.'' 

A  provision  in  a  mortgage  that  the  mortgagee  might  sell  after 
having  advertised  the  sale  for  sixty  days  in  a  newspaper  published 
in  a  town  named,  "  by  posting  up  written  or  printed  notices  in  four 

1  Wilkerson  v.   Eilers,  114  Mo.  245,  21  *  Cogan  v.  McNamara  (R.  I.),  18   Atl. 

S.  W.  Rep.  514  ;  Isaacs  v.  Shattuck,  12  Vt.  Rep.  157. 

668;  Soule  «.  Chase,  1  Robt.  (N.  Y.),  222  ;  ^  Rjee  v.  Brown,   77   111.  549.     In   Gia- 

Reimer  v.  Newel,  47  Minn.  2.37,   49  N.  W.  ham  v.  Fitts,    53   Miss.    307,  it  whs  held 

Rep.  865.  that  there  was  nothing  in  a  kindred  objcc- 

^  Thornburg  v.  Jones,  36  Mo.  514.  tion. 

3  Bigler  v.  Waller,  14  Wall.  297.  «  Graham  v.  Fitts,  53  Miss.  307, 

701 


§  1838.]         POWER   OF   SALE   MORTGAGES   AND   TRUST   DEEDS. 

places  in  the  county,"  was  construed  to  mean  that  the  notice  might 
be  given  in  either  mode,  the  word  hy  being  evidently  a  mistake 
for  or} 

1838.  Length  of  time  of  publication.  —  A  deed  of  trust  re- 
quired a  publication  of  the  notice  of  sale  for  five  consecutive  days, 
the  last  of  which  should  be  ten  days  before  the  sale.  Tlie  last 
notice  was  on  the  eleventh  day  before  that  fixed  for  the  sale.  Upon 
a  claim  that  the  last  insertion  should  have  been  on  the  tentli  day 
before  the  sale,  it  was  held  that  the  last  insertion  might  be  more 
than  ten  days  before  the  sale,  but  could  not  be  made  within  a  less 
time.2  A  longer  notice,  within  a  reasonable  limit,  does  not  injure 
but  rather  benefits  the  debtor. 

A  requirement  in  a  deed  of  "  thirty  days'  public"  notice  in  a 
newspaper  is  satisfied  by  the  publication  of  notice  on  each  successive 
secular  day  in  a  newspaper  not  published  on  Sundays.^  A  require- 
ment of  publication  "  ten  days  before  the  sale  "  is  fulfilled  by  pub- 
lishing a  notice  of  a  sale  to  be  had  on  the  thirteenth  day  of  a  month, 
on  the  second  day  of  that  month,  and  each  day  thereafter  except 
Sunday,  although  there  are  only  nine  insertions  of  the  notice.'*  An 
advertisement  of  a  sale  in  a  newspaper  "for  five  days"  is  sufficient, 
though  one  of  the  five  days  is  a  Sunday  intervening  between  the 
first  and  last  days  of  publication.^  It  is  a  sufficient  compliance  with 
a  requirement  that  ten  days'  notice  of  the  sale  shall  be  given,  that 
the  first  insertion  of  the  notice  is  made  not  less  than  ten  days  before 
the  sale.     It  is  not  necessary  that  ten  days  shall  intervene  between 

1  Watson  V.  Sherman,  84  111.  263.  ^  Bowles  v.  Brauer,  89  Va.  466,  16  S.E. 

2  Tooke  V.  Newman,  75  111.  215;  Taylor  Rep.  356.  The  notice  was  published  on 
V.  Reid,  103  111.  349;  Real  v.  Blair,  33  March  5th,  6th,  7th,  8ih,  and  10th,  there 
Iowa,  318.  being  no  publication  on  Monday,  the  9th. 

■■*  Kellogg  V.  Carrico,  47  Mo.  157.  Lewis,  J.,  delivering  the  judgment,  said: 
■*  Cushman  v.  Stone,  69  III.  516;  Weld  "In  the  construction  of  statutes,  however, 
V.  Rees,  48  111.  428 ;  St.  Joseph  Manufac-  the  rule,  founded  in  reason  and  supported 
taring  Co.  v.  Daggett,  84  111.556.  In  Lerch  by  the  w^eight  of  authority,  independently 
V.  Hill  (Tex.),  21  S.  W.  Rep.  183,  the  deed  of  any  statutory  rule  on  the  subject,  is  that 
of  trust  required  the  land  to  be  sold  after  when  a  statute  prescribes  a  certain  number 
advertisement  of  ten  days  in  some  newspa-  of  days  within  which  an  act  is  to  be  done, 
per  published  in  Tom  Green  County,  The  and  says  nothing  about  Sunday,  it  is  to  be 
evidence  shows  that  the  first  publication  included,  unless  the  last  day  falls  on  Sun- 
was  made  on  the  8th  of  October,  1887,  and  day,  in  which  case  the  act  may  generally 
the  sale  was  made  on  the  18th  of  October,  be  done  on  the  succeeding  day."  Citing 
1887.  The  sale  was  held  void  because  there  Street  u.  United  States,  133  U.  S.  299,  10 
were  not  ten  full  days  before  the  sale,  the  Sup.  Ct.  Rep.  309 ;  King  v.  Dowdall,  2 
court  saying,  "  The  day  upon  which  the  ad-  Sandf.  131 ;  Porter  u.  Pierce,  120  N.  Y. 
vertisement  is  first  published  is  to  be  ex-  217,  24  N.  E.  Rep.  281  ;  Crcssey  v.  Parks, 
eluded  in  computing  the  time  when  the  76  Me.  532. 
publication  begins." 

702 


PUBLICATION   OF   NOTICE.  [§  1838. 

the  last  insertion  and  the  day  of  sale.^  A  requirement  of  "  three 
weeks'  previous  notice  "  is  met  by  a  publication  once  a  week  for 
three  weeks,  and  does  not  render  necessary  the  publication  of  the 
notice  daily  for  three  weeks  previous  to  the  sale.^  A  sale  authorized 
after  "  first  giving  thirt}^  days'  public  notice  "  is  properly  advertised 
by  the  publication  of  a  notice  once  a  week  for  five  weeks,  the  first 
publication  being  more  than  thirty  days  before  the  sale.^  A  re- 
quirement of  notice  in  a  newspaper  "  ten  days  before  the  day  of 
sale  "  would  be  satisfied,  it  would  seem,  by  a  single  publication  ten 
days  before  the  sale,  —  the  language  not  importing  a  continuous 
publication.*  So  a  requirement  of  notice  "  thirty  days  before  the 
day  of  sale  "  is  satisfied  by  a  single  publication  that  length  of  time 
before  the  sale.^ 

But  on  the  other  hand  a  provision  for  "twenty  days'  notice"  of 
a  sale  has  been  held  to  mean  a  continuous  publication  for  that 
time.^  Whether  the  publication  must  be  continuous  is  a  question 
depending  upon  the  meaning  of  the  language  used. 

Where  the  language  in  regard  to  notice  is  "  first  giving  notice  by 
publishing  the  same  "once  each  week  for  three  successive  weeks," 
the  first  publication  need  not  be  made  three  weeks  before  the  time 
appointed  for  the  sale.'^  The  rule  is  the  same  where  the  power  re- 
quires "  thirty  days'  notice  by  publishing  once  a  week  for  three 
weeks  successively."  It  is  sufficient  that  notice  was  published  once 
a  week  for  three  successive  weeks,  and  the  first  publication  was  made 
thirty  days  before  the  sale.^  Such  a  notice,  moreover,  requires  that 
the  thirty  days  shall  elapse,  not  from  the  last  insertion  of  the  notice 
in  the  paper  to  the  day  of  sale,  but  from  the  first.^  And  so  in  New 
York,  where  publication  for  twelve  weeks  successively,  at  least  once 
a  week,  is  required,  the  publications  may  be  made  in  less  than 
eighty-four  days,  provided  there  be  a  publication  once  in  each  week 

1  St.  Joseph  Manufacturing  Co.  v.  Dag-  ^  Washington  v.  Bassett,  15  R.  I.  563, 10 

gett,  84  111.  556,  Atl.  Eep.  625,2  Am.  St.  Rep.  929;  Stine  v. 

-  Johnson  v.  Dorsey,  7  Gill,  269.     In  re  AVilkson,  10  Mo.  75,  96;  German  Bank  v. 

Harris,  14  R.  I.  637;  Thurston  v.  Miller,  Stumpf,  73  Mo.  311  ;  Leffler  w.  Armstrong, 

10  R.  I.  358.  4  Iowa,  482,  68  Am.  Dec.  672. 

3  Leffler  ?;.  Armstrong,  4  Iowa,  482,  68  ^  Dexter   v.    Shepard,    117    Mass.   480; 

Am.  Dec.  672;  Enocks  v.  Miller,  60  Miss.  Frothingham  v.  March,  1  Mass.  247;  Wil- 

19 ;  Taylor  v.  Reid,  103  111.  349.  son  v.  Page,  76  Me.  279. 

*  Weld  r.    Rees,  48   111.  428,  432.     See,  »  First  Nat.  Bank  v.  Mining  Co.  8  Mont, 

also,  Muskingum   Valley  Turnpike  Co.  v.  32,  19  Pac.  Rep.  403  ;  Howard  i;.  Fultcn, 

Ward,  13  Oiiio,  120,  43  Am.  Dec.  191  ;  An-  79  Tex.  231,  14  S.  W.  Rep.  1061. 

drews  v.  Railroad  Co.  14  Ind.  109.  »  Howard  v.  Fulton,  79  Tex.  231,  14  S. 

'"  Jenkins  v.  Pierce,  98  III.  046.  W.  Rep.  1061. 

703 


§§  1839, 1840.]     POWER  OF  sale  mortgages  and  trust  deeds. 

for  twelve  successive  weeks. ^  It  would  seem  that  the  last  advertise- 
ment may  be  on  the  morning  of  the  day  of  sale.^ 

But  a  requirement  of  publication  "for  twelve  successive  weeks, 
at  least  once  in  each  week,"  is  not  met  by  a  publication  once  in 
each  week  for  twelve  weeks,  followed  by  a  sale  made  less  than 
twelve  weeks  from  the  time  of  the  first  publication.'^ 

The  notice  need  not  be  published  in  all  the  editions  of  the  paper 
issued  on  the  days  on  which  the  notice  was  published.* 

The  mortgagor  or  owner  of  the  equity  of  redemption  may  agree 
that  the  advertisement  may  be  for  a  shorter  period  than  that  ex- 
pressed in  the  deed,  and  his  agreement  estops  him  from  afterwards 
objecting  that  this  provision  of  the  power  was  not  complied  with.^ 

VIII.    What  the  Notice  should  contain. 

1839.  The  advertisement  of  the  sale  should  fully  comply 
with  the  terms  of  the  power,  and  even  a  bare  literal  compliance 
is  not  enough.  It  must  give  with  clearness  all  reasonable  informa- 
tion about  the  proposed  sale.  It  should  appear  upon  the  face  of  it 
that  the  sale  is  to  be  made  by  virtue  of  the  power,  or  for  the  pur- 
pose of  foreclosure.''  It  should  show  that  a  default  has  occurred 
within  the  terms  of  the  mortgage  ; "'  but  it  need  not  point  out  for 
what  particular  breach  of  condition  the  sale  is  to  be  made.^  If  the 
advertisement  of  the  sale  is  prescribed  by  statute,  the  provisions  of 
the  statute  must  be  complied  with  ;  but  if  all  the  information  re- 
quired by  the  statute  is  fully  given  in  the  notice  as  published,  the 
fact  that  it  does  not  state  in  the  words  of  the  statute  that  the 
mortgage  will  be  foreclosed  by  a  sale  of  the  mortgaged  premises  is 
immaterial.^ 

1840.  It  must  properly  describe  the  premises  and  the  interest 
to  be  sold,  so  as  to  reasonably  inform  the  public  as  to  what  is  to  be 
sold; I*'  and  if  the  description,  though  including  the  lot  to  be  sold, 

1  George  v.  Arthur,  2  Hun,  406  ;  Howard        ^  Maulsby  v.  Barker,  3  Mackey,  165. 

V.  Hatch,  29  Barb.  297.     And  see,  as  to  ju-  «  Leet  v.  McMaster,  51  Barb.  236;  Judd 

dicial  sales.  Wood  v.  Moorehouse,  45  N.  Y.  v.  O'Brien,  21  N.  Y.  186,  190. 

368,  affirming  1  Lans.  405  ;  Olcottw.  Robin-  '  Bush  v.  Sherman,  80  111.  160. 

son,  21  N.  Y.  1.50,  reversing  20  Barb.  148,  «  King  v.  Bronson,  122  Mass.  122. 

78   Am.   Dec.    126;    Knocks  v.  Miller,  60  ^  Maxwell  r.  Newton,  65  Wis.  261,27  N. 

Miss.  19.  W.  Kep.  31;  White  v.  McClellan,  62  Md. 

2  Bowles  V.  Brauer,  89  Va.  466,  16  S.  E.  347. 

Rep.  356  ;  Worley  r.  Naylor,  6  Minn.  192.  lo  Newman  v.  Jackson,  12  Wheat.  570; 

This  decision  was  founded  on  a  statute.  Reading  y.  Waterman,  46   Mich.  110,  8  N. 

3  Bacon  v.  Kennedy,  56  Mich.  329,  22  W.  Rep.  691  ;  Stephenson  v.  January,  49 
N.  W.  Rep.  276;  Gantz  v.  Toles,  40  Mich.  Mo.  465  ;  Loveland  v.  Clark,  11  Colo.  265, 
725.  18   Pac.  Rep.  .544;  Streeter  v.   Ilsley,  147 

4  Eversou  v.  Johnson,  22  Hun,  115.  Mass.  141,  23  N.  E.  Rep.  837. 

704 


WHAT    THE   NOTICE   SHOULD   CONTAIN.  [§  1840. 

contains  double  the  area  of  the  lot  mortgaged,  the  sale  will  be  void.i 
But  a  slight  variance  in  the  description  of  the  quantity  of  the  mort- 
gaged premises,  between  that  contained  in  the  notice  and  that  in 
the  morto-ae-e,  is  not  fatal  to  the  validity  of  the  foreclosure,  in  the 
absence  of  any  evidence  of  actual  prejudice.^ 

If  the  sale  embraces  the  whole  of  the  property  mortgaged,  the 
description  should  conform  substantially  to  that  contained  in  the 
mortgage.  A  notice  which  states  nothing  as  to  the  quantity  of 
land  to  be  sold,  and  gives  no  metes  or  bounds,  and  no  information 
whether  it  is  a  village  lot  or  a  farm,  is  insufficient.^  It  is  usual 
and  proper,  besides  describing  the  premises  by  metes  and  bounds, 
to  refer  to  the  book  and  page  of  the  record  of  the  mortgage  deed 
and  to  give  the  date  of  it.  An  advertisement  following  the  de- 
scription of  the  premises  by  metes  and  bounds  contained  in  the 
inortgHge,  and  referring  by  book  and  page  to  the  registry  of 
deeds,  and  by  book  and  page  to  a  plan  recorded  in  the  office  of 
the  superintei%dent  of  public  lands,  contains  a  sufficient  descrip- 
tion of  the  property,*  though  this  description  be  imperfect.^  If 
the  premises  are  sufficiently  described  in  other  respects,  an  error 
in  the  reference  to  the  record  or  to  the  date  would  not,  it  is  conceived, 
invalidate  the  notice.  Even  where  by  statute  references  to  the 
record  and  to  the  date  are  required  to  be  given,  a  notice  referring 
correctly  to  the  clerk's  office  where  the  mortgage  is  recorded,  and 
to  the  date  of  the  record,  is  held  sufficient,  although  it  mistakes  the 
number  of  the  book  in  which  the  record  is  made.^ 

A  sale  will  not  be  set  aside  because  the  notice  of  sale  fails  to 
state  in  what  town  the  property  is  situated,  where  the  description 
is  in  other  respects  sufficient  for  its  location  and  identity,  and  the 
notice  is  published  in  the  town  where  the  property  is  situated  ;  es- 
pecially if  there  is  no  intimation  that  the  property  sold  for  less  than 
its  fair  market  value.' 

1  Fenner  v.  Tucker,  6  R.  I.  551  ;  Hoff-  terial,  and  presumptively  prejudicial.     As  a 

man  v.  Anthony,  6  R.  I.  282,  75  Am.  Dec.  general  rule,  however,  omissions  or  inaccu- 

701.     The  reason  given  by  the  court  is  that  racies  not  calculated  to  mislead  or  to  work 

persons  who  might  desire  to  purchase  the  injury  are  to  be  disregarded."     Stephenson 

quantity  of  land  embraced  in  the  mortgage  v.  January,  49  Mo.  465. 

might  not  want  to  buy  the  tract  advertised  »  Rathboney.  Clarke,  9  Abb.  Pr.  66,  note, 

to  be  sold,  and  therefore  might  not  attend  *  Stickney  v.  Evans,  127  Mass.  202. 

the  sale.  ^  Robinson  v.  Amateur  Asso.   14  S.  C. 

■2  Schochi;.  Birdsall,  48  Minn.  441,  51  N.  148;  Loveland  v.  Clark,  11  Colo.  265,   18 

W.  Rep.  382.    The  court  say  :"  Any  change  Pac.  Rep.  544. 

in  the  description  that  would  render  it  un-  '^  Judd  r.  O'Brien,  21  N.  Y.  180. 

certain,  obscure,  or  misleading  in  respect  to  "  Dickerson  v.  Small,  64  Md.  395.     See 

what  the  bidder  would  acquire  by  his  pur-  Reeside  v.  Peter,  33  Md.  120. 
chase  would  undoubtedly  be  held  to  be  ma- 

VOL.  II.               45  705 


§  1841.]        POWER    OF   SALE   MORTGAGES   AND   TRUST    DEEDS. 

A  description  of  the  property  merely  by  reference  to  a  plat  or 
deed  on  record  has  been  held  sufficient,^  though  it  is  probable 
that  such  a  description  would  not  generally  be  held  good.  The 
description  should  be  sufficient  to  apprise  the  mortgagor  and  others 
interested  in  the  land  that  the  land  to  be  sold  is  that  in  which  they 
ha^e  an  interest ;  and  sufficient  to  enable  those  who  may  wish  to 
purchase  to  locate  and  identify  the  propertj^  though  a  description 
by  metes  and  bounds  is  not  always  necessary.^  When  a  portion  of 
the  land  described  in  the  mortgage  has  been  released  from  the  oper- 
ation of  it,  it  is  desirable  that  the  portion  remaining  which  is  to 
be  sold  should  be  described  by  metes  and  bounds,  with  a  reference 
to  the  mortgage  and  to  the  date  and  record  of  the  release,  rather 
than  that  the  premises  should  be  described  in  the  same  manner  as 
they  are  described  in  the  mortgage  with  such  reference  to  the  re- 
lease made.  But  a  notice  containing  only  a  reference  to  the  ex- 
cepted portion  released  is  good.^  When,  however,  there  have  been 
many  releases,  so  that  the  part  to  be  sold  would  not  be  recognized 
at  all  by  the  description  given  in  the  mortgage,  a  description  of  the 
prerbises  to  be  sold  as  they  actually  are  is  all  the  more  desirable  ; 
and  a  reference  to  the  releases,  except  generally,  or  as  being  the 
property  not  before  released  of  record  from  the  operation  of  the 
mortgage,  is  not  important.  If  the  description  of  the  premises 
follows  that  in  the  mortgage,  this  is  generally  sufficient ;  *  and  a 
change  in  the  street  number  of  the  building  since  the  mortgage 
was  made  does  not  invalidate  the  notice.^ 

1841.  Notices  of  distinct  lots  should  be  separate.  Several 
mortgages  or  deeds  of  trust  having  the  same  parties,  and  in  every 
way  alike  except  in  the  amounts  secured,  should  be  advertised  sep- 
arately, if  they  cover  different  lots  of  land.^  But  there  is  no  legal 
objection  to  advertising  the  several  parcels  under  the  several  mort- 
gages or  trust  deeds  in  one  notice,  reciting  each  mortgage  or  deed, 
and  the  lands  thereby  conveyed.'^  The  sales  of  the  several  parcels 
should  be  made  separately.  If,  however,  the  different  mortgages 
are  upon  the  same  lot,  there  would  seem  to  be  no  objection  to  pub- 

1  Fitzpatrick  v.  Fitzpatrick,  6  R.  I.  64,  «  Morse  v.  Byam,  55  Mich.  594;  Marsh 
75  Ara.  Dec.  681.  v.  Morton,  75  III.  621.     In  this  case  notices 

2  Jackson  V.  Harris,  3  Cow.  241.  under  nine  trust  deeds  upon  different  lots 

3  Wilson  V.  Paige,  76  Me.  279.  were    published  separately,  and    occupied 
*  Loveland  r.  Clark,  11  Colo.  265,  8  Pac.    about  three  columns  of  a  daily  paper.     It 

Rep.  544;  Reading  i;.  Waterman,  46  Mich,  was  objected  that  the  notices  should  have 

110,  8  N.  W.  Rep.  691 ;  Miller  v.  Lanham,  been  consolidated  into  one,  but  the  court 

35  Neb.  886,  53  N.  W.  Rep.  1010.  allowed  costs  for  the  separate  notices. 

6  Model  Lodging  House  Asso.  v.  Boston,  ^  Tyler  v.  Mass.  Mut.  Ins.  Co.  108  III. 

114  Mass.  133.  58. 
706 


WHAT   THE  NOTICE   SHOULD   CONTAIN.        [§§  1842,  1843. 

lishing  them  together.  If  the  mortgage  is  upon  several  lots  upon 
which  the  mortgage  debt  is  apportioned  in  specified  amounts,  so 
that  it  is  in  effect  a  separate  mortgage  for  each  lot,  the  notice  of 
sale  may  include  all  the  lots,  yet  it  must  state  the  amount  claimed 
to  be  due  on  each  lot  separately .^ 

But  where  a  mortgage  covering  three  lots  of  land  was  given  to 
secure  the  payment  of  a  note  for  a  certain  sum,  and  the  condition 
of  defeasance  was  that  the  mortgagor  should  pay  that  sum,  one  third 
of  which  should  be  a  specific  lien  on  each  of  the  three  lots  described, 
releasable  at  any  time  by  the  payment  of  a  third  part  of  said 
amount,  together  with  accrued  interest,  it  was  held  that  this  was  in 
effect  a  separate  mortgage  upon  each  lot  separately,  and  that  a 
notice  of  foreclosure  sale  under  the  power,  stating  only  the  amount 
of  the  entire  debt  claimed  to  be  due,  as  though  the  mortgage  had 
been  for  the  entire  debt  without  apportionment,  was  invalid  ;  and  a 
sale  of  the  three  lots  together  for  a  gross  sum  was  also  invalid,  and 
the  foreclosure  was  ineffectual.^ 

1842.  Where  the  advertisement  gave  only  a  short  and  incom- 
plete description  of  the  property,  and  did  not  state  the  name  of 
the  mortgagee  or  of  the  assignee  of  the  mortgage,  and  was  signed 
only  "per  order  of  the  assignee  of  said  mortgage,"  and  the  place  of 
sale  was  remote  from  the  premises  to  be  sold,  and  the  notice  was 
ineffectual  to  attract  purchasers,  the  sale  was  held  invalid,  and  the 
mortgagor  allowed  to  redeem.'^  "  With  such  a  notice,"  say  the 
court,  "  and  under  such  circumstances,  a  mortgagee  who  is  author- 
ized to  sell  only  at  auction,  finding  himself  to  be  the  only  bidder  at 
the  sale,  cannot  in  good  faith  proceed  with  the  sale  and  purchase 
the  property  for  himself  at  his  own  price,  and  insist  upon  such  a 
purchase  as  precluding  the  mortgagor  from  all  right  to  redeem  the 
property." 

1843.  The  notice  must  show  who  orders  the  sale ;  and  if  it 
omits  to  identify  the  holder  of  the  mortgage,  and  is  signed  by  no 
one,  although  it  states  the  names  of  the  mortgagor  and  mortgagee, 
and  refers  to  the  book  and  page  of  the  record  of  the  mortgnge,  a  sale 
under  it  will  be  invalid.^  In  Rhode  Island,  however,  it  has  been  held 
that  an  advertisement  is  sufficient  although  the  mortgagee  was  not 
named  in  the  notice,  and  that  was  signed  only  in  the  words  "  by 
order  of  the  mortgagee."  •'     If  the  notice  correctly  states  the  place 

1  Mason  v.  Goodnow,  41   Minn.  9,  42  N.        *  Roche  y.  Farnswortii,  106  Mass.  509. 
W.  Rep.  482.  ^  Fitzpatrick  v.  Fitzpatritk,  6  R.  I.   64, 

2  Child  U.Morgan  (Minn.),  .')2N.W.  Rep.  T.")  Am.  Dec.  681;  Wuonsockct  Inst,  for 
1127.  Savings  r.  Am.  Worsted  Co.  13  K.  I.  255. 

^  Montague  v.  Dawes,  14  Allen,  369. 

707 


§  1844.]       POWER   OF   SALE   MORTGAGES   AND   TRUST  DEEDS. 

of  record,  though  it  gives  neither  the  name  of  the  mortgagee  nor  of 
the  mortgagor,  nor  of  any  one  connected  with  the  mortgagor,  it  is 
sufficient.^  But  the  same  court  held  a  notice  to  be  fatally  defective 
in  vrhich  the  reference  to  the  record  was  not  correctly  made,  and 
jiieither  the  name  of  the  mortgagor  nor  of  the  mortgagee  nor  of  the 
;auctioneer  was  given,  and  the  notice  was  not  signed  by  any  one.^ 
Under  a  statute  requiring  that  the  notice  shall  specify  the  name  of 
ithe  mortgagee,  it  is  sufficient  that  the  notice  is  signed  by  him  and 
•contains  an  accurate  reference  to  the  record.^  If  there  are  several 
owners  of  the  mortgage,  the  notice  should  be  signed  by  all  who  ap- 
;pear  of  record  to  be  owners  of  it.*  Upon  the  death  of  the  mort- 
gagee, in  the  absence  of  any  bequest  of  the  mortgage,  the  legal 
title  vests  in  his  executor  or  administrator;  and  a  notice  signed  by 
the  executor  or  administrator,  with  the  word  "executor  "or  "ad- 
ministrator "  affixed,  sufficiently  discloses  his  interest  and  the  source 
of  his  title.^ 

In  a  notice  of  sale  by  a  mortgagee  it  is  not  necessary  to  set  forth 
an  assignment  of  the  mortgage  made  by  him,  and  a  reassignment  to 
him  by  the  assignee.^ 

A  notice  which  does  not  give  correctly  the  name  of  the  mort- 
gagor, when  a  statute  provides  that  the  notice  shall  specify  the 
names  of  the  mortgagor  and  mortgagee,  is  insufficient,  and  a  sale 
under  it  is  invalid.'^  But  a  notice  which  in  reciting  the  name  of 
the  mortgagee  omits  the  initial  of  his  middle  name,  but  the  notice 
at  the  end  is  properly  signed  by  the  mortgagee  with  his  full  name, 
is  a  valid  notice,  and  affords  no  ground  for  setting  aside  a  sale 
under  it.^ 

1844.  The  notice  of  sale  need  not  name  the  owners  of  the 
equity  of  redemption,  or  the  subsequent  mortgagees,  or  others  who 
have  acquired  an  interest  in  the  estate  from  the  mortgagor  since  the 
mortgagee's  title  accrued.^  It  is  sufficient  if  the  notice  correctly 
sets  out  the  place  of  record  of  the  mortg;tge.     Any  one  desiring  to 

1  Colgan  V.  McNamara,  16  11.  I.  554,  18  ^  Learned   v.    Foster,    117    Mass.   365  ; 
Atl.  Rep.  157.  Dyer  ;;.  Shurtleff,  112  Mass.   165,  17  Am. 

2  Hoffman  v.  Anthony,  6   R.  I.  282,  75  Rep.    77.      In    Roche   v.   Farnsworth,  106 
Am.  Dec.  701.  Mass.  509,  the  omission  to  name  those  who 

3  Candee  v.  Burke,  1  Hun,  546.  had  acquired  intere.st  in  the  property  from 
*  Dunning  v.  McDonald   (Minn.),  55  N.    the  mortgagor  was   alluded  to  as  one  of 

W.  Rep.  864.  the  defects  of  the  notice,  but  the  decision 

5  Bridenbecker  y.  Prescott,  3  Hun,  419.  does  not  rest  upon  that;    the  fatal  defect 

6  White  V.  McClellan,  62  Md.  347.  there  being  the  omission  to  name,  either  in 
'  Lee  V.  Clary,  38  Mich.  223;  Thompson  the  body  of  the  notice  or  in  the  signature, 

V.  Commissioner,  79  N.  Y.  54.  the  assignee  of  the  mortgage  who  made  the 

8   White  V.  McClellan,  62  Md.  347.  sale. 

708 


WHAT   THE   NOTICE    SHOULD   CONTAIN.       [§§  1845,  1846. 

know  the  names  of  the  mortgagor,  the  mortgagee,  and  others  con- 
nected with  the  mortgage  can  learn  them  from  the  record.^ 

1845.  It  must  specify  definitely  the  time  and  place  of  sale.^ 
A  notice  of  a  sale  advertised  to  take  place  in  Februai-y,  1858,  though 
the  sale  was  intended  to  be  made  and  was  actually  made  in  1859, 
was  fatally  defective.^  If  there  be  an  established  usjige  that  such 
sales  shall  be  at  a  particular  place,  as  for  instance  the  rotunda  of 
the  city  hall,  a  notice  of  a  sale  to  be  made  at  the  city  hall  would  be 
sufficient.*  Under  the  Minnesota  statute  for  sale  by  advertisement? 
a  notice  of  sale  appointed  for  the  7th  day  of  November,  1859,  with" 
out  naming  any  hour  of  sale,  does  not  necessarily  render  the  sale 
invalid.  It  is  an  irregularity  which  is  not  allowed  to  overthrow  a 
sale,  unless  seasonable  application  be  made,  and  certainly  not  after 
a  lapse  of  twelve  years  after  the  time  of  sale.^  A  sale  advertised 
to  be  made  at  "  the  hour  of  eleven  o'clock  "  may  be  made  at  any 
time  between  eleven  and  twelve  o'clock  of  the  day  named.  For  the 
purposes  of  the  sale,  it  is  to  be  considered  eleven  o'clock  until  it  is 
twelve  o'clock.*'  But  a  valid  sale  cannot  be  made  before  the  hour 
advertised.  Thus,  if  the  hour  of  sale  stated  in  the  notice  is  eleven 
o'clock,  a  sale  fifteen  minutes  before  that  hour  is  void.'' 

The  record  of  a  certificate  of  sale  stating  that  the  sale  was  had 
at  the  time  stated  in  the  notice,  and  also  at  another  time,  does  not 
estop  the  mortgagor  from  showing  the  actual  time  of  sale. 

1846.  If  the  power  makes  no  provision  as  to  the  time,  place, 
or  terms  of  sale,  or  the  manner  of  advertising  it,  and  no  statute 
regulates  the  proceedings,  the  mortgagee  or  trustee  may  exercise  his 
discretion  in  these  matters,  and  if  fairly  exercised  the  sale  will  be 
valid  ;^  though  it  would  be  a  safe  and  prudent  course  to  pursue  the 
mode  ordinarily  provided  for  in  judicial  sales,^  and  a  court  of  equity 
would  enforce  the  power  according  to  its  general  practice.  But  if 
the  mortgage  provides  that  the  mortgagee  shall  advertise  the  time, 

1  Colgan  V.  McNamara,  16  R.  I.  554,  18  time-pieces  vary  a  few  minutes  in  the  time, 

At!.  Rep.  157.     lu   Hoffman  v.  Antliony,  6  and  a  sale  in  which  there  should  be  a  de- 

R.  I.   282,  75  Am.  Dec.  701,  the  notice  was  parture  from   the  absolutely  correct  time, 

defective  in  not  correctly  referring  to  tlie  by  reason  of  such  variance,  would  probably 

record.  be  good,  for  persons  purposing  to  attend 

-  Burnet  v.  Dennisfon,  5  Jolins.  Ch.  35.  such  a  sale  may  be  supposed  to  take  into 

8  Fenner  v.  Tucker,  6  R.  I.  551.  account  the  fact  that  time-pieces  practically 

■*  Hornby  v.  Cramer,  12  How.  Pr.  490.  accurate  will  vary  a  few  minutes.     It  is  not 

5  Menard  v.  Crowe,  20  Minn.  448;   But-  found  that  selling  before  the  hour,  in  this 

terfield  v.  Farnham,  19  Minn.  85.  case,  was  by  reason  of  the  ordinary  variance 

'•  McGovern  v.  Union  Mut.  L.  Ins.  Co.  in  time-pieces."     Per  Gilfillan,  C.  J. 
109  111.  151.  8  Olcott  V.  Bynum,  17  Wall.  44;  Meier 

^  Richards  v.  Finnegan,  45  Minn.  208,47  v.  Meier,  105  Mo.  411,  16  S.  W.  Rep.  22.3, 
N.   W.  Rep.  788.      "Reasonably  accurate         9  Calloway  t;.  People's  Bank,  54  Ga.  441. 

709 


§§  1847, 1848.]     POWER  of  sale  mortgages  and  trust  deeds. 

place,  and  terms  of  sale  in  a  prescribed  newspaper,  this  is  in  effect 
an  authority  to  him  to  fix  the  time,  place,  and  terms  of  sale  at  his 
discretion.^  If  the  deed  or  mortgage  provide  that  the  sale  shall  be 
made  on  or  near  the  premises,  or  at  a  particular  place  in  a  town  or  • 
city  named,  a  sale  at  any  other  place  would  not  be  in  pursuance  of 
the  power,  and  would  be  invalid.^  But  if  it  merely  provide  that 
the  sale  shall  be  in  a  certain  town  or  city,  the  trustee  or  mortgagee 
may  cause  it  to  be  made  at  any  usual  or  convenient  place. 

1847.  Sale  fixed  for  Sunday  or  a  legal  holiday.  —  Proceedings 
to  foreclose  a  mortgage  are  not  void  because  the  day  specified  in 
the  advertisement  happens  on  a  Sunday.  The  court  in  a  New  York 
case  thought  that  a  sale  on  Sunday  might  not  be  prohibited  by  the 
statutes  of  that  State  ;  but  in  that  case,  the  mistake  being  discovered 
before  the  day  of  sale,  a  postponement  was  made  and  advertised 
before  the  day  fixed  for  the  sale ;  and  the  sale  on  the  following  day 
was  held  to  be  regular.'^ 

A  valid  sale  may  be  made  on  the  twenty-second  day  of  February, 
though  it  is  declared  by  statute  to  be  a  legal  holiday,  the  transaction 
of  secular  business  on  that  day  not  being  prohibited  b}^  the  statute.* 

1848.  Sale  at  ruins  of  court-house  in  Chicago.  —  Under  a  deed 
of  trust  made  before  the  destruction  of  this  court-house,  providing 
that  any  sale  under  it  should  be  had  at  the  north  door  of  the  court- 
house, a  sale  after  the  destruction  of  the  court-house  may  be  made 
on  the  ground  immediately  in  front  of  the  place  where  the  north 
door  was  at  the  time  of  the  execution  of  the  deed.^  But  such  a  pro- 
vision in  a  mortgage  made  before  the  destruction  of  the  court-house 
does  not  restrict  the  sale  to  the  site  of  the  court-house  then  in  exist- 
ence, but  after  its  destruction  the  sale  may  be  advertised  and  made 
at  the  north  door  of  the  building  then  in  use  as  a  court-house.^ 

After  such  a  sale  has  been  had,  and  a  deed  is  given,  in  which  it  is 
recited  that  the  sale  was  in  due  form,  and  according  to  the  terms  of 
the  deed,  it  is  held  that  a  subsequent  purchaser  is  not  bound  to  look 
beyond  the  recitals  of  the  deed.'^ 


1  Calloway  v.  People's  Bank,  54  Ga.  441.  6  Alden  v.  Goldie,  82  111.  581 ;  Wilhelm 

2  See  Rice  v.  Brown,  77  111.  549.  v.  Schmidt,  84  111.  183. 

8  Saj'les  V.  Smith,  12  Wend.  57,  27  Am.  ^  Long  v.  Rogers,  6  Biss.  416,  per  Blod- 

Dec.   117;    Westgate  v.  Haudliu,  7  How.  gett,   J.:     "I   am    inclined   to  think   that 

Pr.  372.  would  be  a  good  point  if  made  at  the  time 

*  Stewart  t;.  Brown  (Mo.),  16  S.  W.  Rep.  the   sale    took  place.      It   would   be   good 

389.  ground  for  stopping  the  sale  before  rights 

5  Chandler  v.  White,  84  111.  435  ;  Waller  iutervene  ;  but  I  doubt  if  a  purchaser  would 

i;.  Arnold,  71  111.  350.  be  absolutely  obliged  to  take  notice  that  the 

court-house  was  a  ruin." 

710 


WHAT   THE   NOTICE   SHOULD   CONTAIN.  [§  1849. 

1849,  Under  a  deed  of  trust  providing  that  the  sale  shall 
take  place  at  the  "  court-house  door,"  a  sale  made  at  the  door 
of  a  building  temporarily  used  as  a  court-house,  while  repairs  are 
making  upon  the  court-house  building,  is  a  sufficient  compliance 
with  the  terms  of  the  deed.^  Where  a  deed  of  trust,  made  after 
the  destruction  by  fire  of  the  court-house  in  Chicago,  provided  that 
the  sale  should  be  made  "  at  the  north  door  of  the  court-house  in 
the  city  of  Chicago,"  and  the  county  courts  were  then  held  in  a  por- 
tion of  a  building  formerly  a  court-house,  but  which  had  two  north 
doors,  an  advertisement  of  a  sale  to  be  made  at  one  of  those  doors 
was  held  to  have  been  advertised  to  be  made  at  the  place  designated 
in  the  deed.^  If  the  court-house  be  removed  after  the  execution  of 
the  mortgage,  and  established  at  a  different  place  in  the  same  town, 
the  sale  must  be  at  the  new  court-house,  and  not  at  the  building 
formerly  used.^  A  trust  deed  requiring  the  sale  under  it  to  be  made 
at  the  court-house  of  the  county  is  properly  executed  b}^  a  sale  at 
the  court-house  of  a  newly  organized  county  which  includes  the  land 
sold.« 

A  notice  of  sale  to  be  held  at  the  front  door  of  the  court-house  in 
a  village  named,  when  in  fact  there  is  no  court-house,  nor  any  place 
known  as  the  court-house,  in  such  village,  is  void.^  Where,  at  the 
time  a  mortgage  was  made,  there  was  no  court-house  in  the  county 
named,  the  courts  being  held  in  buildings  hired  for  the  purpose,  but 
a  new  court-house  was  in  process  of  building,  a  sale  is  properly 
made  at  the  door  of  the  unfinished  court-house.^ 

Where  it  was  provided  that  the  sale  under  a  deed  of  trust  should 
be  made  at  the  "east  court-house  door,"  and  there  was  at  the  time 
the  deed  was  executed  a  court-house  with  an  east  door,  but  this 
court-house  was  afterwards  partly  destroyed,  and  abandoned  as  such, 
and  at  the  time  of  the  sale  the  circuit  court  was  held  in  one  build- 
ing and  the  county  and  probate  courts  were  held  in  another,  each  of 
which  was  far  removed  from  the  other,  and  from  the  abandoned 
court-house,  the  trustee  gave  notice  that  he  would  sell  the  property 
•'  at  the  front  door  of  the  court-house,"  and  he  made  the  sale  at  the 
north  door,  that  led  upstairs  to  the  part  of  the  building  occupied 
by  the  circuit  court,  though  said  court  was  not  in  session  at  the 
time.     It  appeared  that  persons  who  would  have  bid  for  the  prop- 

1  Ilarnbrigbt  v.   Brockman,  59  Mo.   52.  '  Napton  i-.  Hurt,  70  Mo.  497. 
See  further,  as  to  what  is  the  "court-house  *  Williams  v.  Pouns,  48  Tex.  141. 
door,"  Maloney  v.  Webb,  112  Mo.  575,  20  ^  Bottineau  v.  Mtna  L.  Ins.  Co.  31  Minn. 
S.  W.  Rep.  283.  12.5,  16  N.  W.  Rep.  849. 

2  Gregory  ?;.  Clarke,  75  111.  485;  Alden  «  Davis  »•.  Hes.s,  103  Mo.  31,  15  S.  W. 
v.  Goldie,  82  111.  581.  Rep.  324. 

711 


§  1849  a.]       POWER   OF   SALE   MORTGAGES   AND    TRUST   DEEDS. 

erty,  had  it  been  sold  at  the  proper  place,  refused  to  attend  the  sale 
because  of  the  doubt  entertained  of  its  legality,  and  that  the  prop- 
erty sold  for  less  than  one  half  of  its  value.  It  was  held  that  a 
sale  at  the  door  of  the  court-house  existing  at  the  time  of  the  sale 
would  be  valid,  but  the  complainants  were  entitled  to  a  trial  of  the 
issue  whether,  at  the  time  of  the  sale,  there  was  more  than  one  place 
in  the  city  designated  as  "  the  court-house,"  at  which  sales  of  such 
character  were  made.     The  sale  was  held  invalid. ^ 

If  the  mortgage  or  deed  of  trust  specifies  no  place  of  sale,  the 
sale  may  be  made  at  the  court-house  door,  if  by  custom  that  is  the 
place  where  such  sales  are  usually  made.  In  such  case  the  place  of 
sale  is  left  to  the  reasonable  discretion  of  the  mortgagee  or  trustee.^ 

1849  a.  Sale  in  newly  incorporated  town  or  county.  —  Where 
a  mortgage  was  executed  of  land  in  the  south  part  of  Maiden,  and 
this  part  of  that  town  was  afterwards  incorporated  as  the  town  of 
Everett,  the  same  mortgagor  after  such  incorporation  executed  an- 
other mortgage  of  the  same  land  to  the  same  mortgagee,  describing 
it,  as  in  the  first  mortgage,  as  situated  in  the  south  part  of  Maiden, 
though  the  mortgagor  then  resided  upon  the  premises  within  the 
limits  of  Everett.  The  mortgage  provided  for  a  sale  of  the  premises 
"  at  public  auction  in  said  Maiden."  The  notice  by  publication  was 
given  of  a  sale  to  take  place  "  on  the  premises  described  in  the 
mortgage  deed,  namely,  a  lot  of  land  situated  in  the  south  part  of 

1  Stewart  u.  Brown,  112  Mo.  171,  20  S.  W.  made    at   the    circuit   court   building,  and 

Rep.  451.     Sherwood,  C.  J.,  concurred  in  tliat  the  place  of  sale  not  being  pointed  out 

the  result  on  the  ground  that  the  circum-  with  reasonable  certainty,  the  party  entitled 

.stances  of  the  sale  were  such  as  should  have  to  resort  to   the  security   should  institute 

induced  the  trustee  to  refrain  from  acting  foreclosure  proceedings  in  court, 
regardless  of  the  question  of  locality.     In        The  majority  of  the  court  seemed  to  be 

his  opinion,  however,  the  rule  declared  in  of  the  opinion  that  too  much  importance 

Hambright  v.  Brockman,  59  Mo.  52,  fol-  should  not  be  given  to  the  designation  of 

lowed   afterwards   in  Napton    v.    Hurt,   70  the   particular   door  ;    and  that   the    word 

Mo.  497,   established    a    rule   of   property  "  court-house  "  should  be  given  more  prom- 

which  should  not  be  lightly  departed  from,  inence,   and  made    the  controlling  feature ; 

Black  and  Gantt,  JJ.,  concurred  in  the  re-  and  that  the  parties  intended  that  the  sale 

suit  on  the    ground  that  the  sale  should  should  occur  at  the  door  of  the  court-house, 

liave    been    made  at   the  old   court-house,  without  regard  to  the  change  in  location, 

for  by  the  power  the  place  designated  for  and   without   regard    to  whether   the   new 

the  sale  was  the  "  east  court-house  door,"  courthouse  had  a  door  corresponding  to  the 

and   this   description    only  applied   to   the  particular  door  mentioned  or  not;  citing  as 

court-house  whicii  had   been   partially   de-  sustaining  this  view  the  ca.ses  of  Alden  v. 

stroyed.     This  was  the  ground  of  the  deci-  Goldie,  82  111.  581  ;  Willielm  v.   Schmidt, 

sion    in    Division   No.    1    of   the    Supreme  84  111.   183;    Williams   v.  Pouns,  48  Tex. 

Court    of    the    State   in    this   same    case.  141;  Hickey  i>.  Behrens,  75  Tex.  488,  12  S. 

Stewart   v.  Brown    (Mo.),  16    S.  W.  Rep.  W.  Rep.  679. 

389.      Barclay,  J.,  concurred  in  the  result        -  Hess  v.    Dean,  66  Tex.  663,  2  S.  W. 

on  the  ground  that  the   sale  could  not  be  Rep.  727. 

712 


WHAT   THE   NOTICE   SHOULD   CONTAIN.       [§§  1850,  1851. 

Maiden  ; "  and  described  the  lot  by  metes  and  bounds  as  situated  on 
a  certain  street;  and  also  described  the  mortgage  by  date,  and  by 
reference  to  the  book  and  page  in  the  registry  where  it  was  recorded. 
In  an  action  by  the  mortgagoi-,  jifter  a  sale  under  such  notice,  claim- 
ing that  the  notice  was  insufficient,  and  that  the  sale  was  made  at  a 
place  not  authorized,  it  was  held  the  notice  was  good  and  the  sale 
was  properly  made  upon  the  premises.  The  mortgage  referred  to 
in  the  notice  afforded  means  of  ascertaining  the  exact  locality  of 
the  mortgaged  land.  The  fact  that  this  had  been  incorporated  into 
the  town  of  Everett  was  immaterial,  though  this  fact  must  be  pre- 
sumed to  have  been  known  to  the  mortgagor.^ 

AVhere,  at  the  time  a  mortgage  was  given,  foreclosure  sales  were 
required  by  law  to  be  made  in  the  county  where  the  land  is  situated, 
and  after  the  making  of  the  mortgnge  the  portion  of  the  county  in 
which  the  mortgaged  land  is  situated  is  legally  annexed  to  another 
county,  a  sale  made  on  the  premises  fulfils  the  requirement.^ 

1850.  Sale  at  city  hall.  —  A  notice  of  a  sale  to  be  made  at  the 
city  hall  in  the  city  of  New  York  was  held  to  specify  the  place  of 
sale  with  sufficient  definiteness,  inasmuch  as  by  common  usage  the 
rotunda  in  the  city  hall  proper  is  the  established  place  for  such 
sales.^  It  was  said  in  this  case,  however,  that  except  for  such  usage 
the  notice  would  be  too  indefinite,  as  all  the  buildings  used  for  hold- 
ing courts  within  the  Park  are  deemed  in  law  the  city  hall.  A 
notice  which  designates  the  place  of  sale  as  "  at  the  court-house  in 
the  city  of  St.  Paul  "  is  sufficient  to  uphold  the  sale,  in  the  absence 
of  any  evidence  of  fraud  or  unfairness,  or  actual  or  probable  in- 
jury.* 

If  the  place  of  sale  be  left  to  the  discretion  of  the  trustee  or  mort- 
gagee, he  may  make  the  sale  at  a  place  outside  the  State  in  which 
the  mortgaged  lands  are  situated  ;  and  if  he  acts  with  fairness,  and 
the  parties  interested  in  the  property  are  not  prejudiced  thereby, 
the  sale  will  be  sustained.''^ 

1851.  If  a  mistake  be  made  in  the  advertisement,  such  as 
would  render  a  sale  under  it  irregular  or  voidable,  the  mortgagee 
may  waive  the  proceedings  and  advertise  anew  ;  or  he  may  avail 
himself  of  his  right  to  seek  his  remedy  by  foreclosure  in  a  court  of 
chancery.^  Where  the  mistake  was  tiiat  tlie  day  of  sale  fell  on  Sun- 
day, and  the  new  notice  fixing  a  different  day  for  the  sale  claimed 

1  Colcord  V.  Bettinson,  131  Mass.  233.  ''  Golcberi-.  Brisbin,  20  Minn.  453  ;  Thor- 

~  Chilton  V.  Brooks,  71   Md.  445,  18  Atl.  wartli  v.  Armstronfj,  20  Minn.  464. 

Itep.  868.  6  Inf,rle  v.  Jones,  43  Iowa,  280. 

'  Horuhy  I,-.  Cramer,  12  How.  I'r.  490.  ''  Atwater  t;.  Kinman,  llarr.  (Micii.)  243. 

713 


§  1852.]       POWER   OF   SALE   MORTGAGES   AND   TRUST   DEEDS. 

a  different  amount  as  due,  it  was  held  that  there  was  nothing  in  the 
proceedings  that  enabled  the  mortgagor  to  avoid  the  sale.^  A  cleri- 
cal mistake  in  the  notice  of  sale  will  not  invalidate  the  title  of  a 
bond  fide  purchaser  who  had  no  notice  of  the  mistake,  and  was  in 
DO  way  responsible  for  it.^  The  omission  of  the  words  "  will  be 
sold  "  when  other  recitals  in  the  notice  show  that  a  sale  is  meant 
does  not  invalidate  the  notice.^ 

1852.  Any  error  in  the  announcement  of  the  sale  which  -would 
naturally  mislead  the  public,  or  deter  persons  from  attending  the 
sale  and  bidding,  will  render  the  sale  irregular  and  void.  Such 
would  be  the  effect  of  an  erroneous  statement  that  the  premises 
would  be  sold  for  default  of  three  mortgages  when  in  fact  there 
were  but  two,  the  third  being  upon  other  land.* 

A  change  in  the  time  appointed  for  the  sale  after  notice  has  once 
been  given,  if  the  mortgagor  is  thereby  misled  to  his  prejudice, 
avoids  the  sale  though  the  notice  was  published  for  the  requisite 
length  of  time  after  the  change.'^  When  a  sale  is  adjourned  to  a 
future  day,  but  the  notice  of  it  as  published  is  for  a  different  day, 
the  sale  will  be  void.^  Such  also  may  be  the  effect  of  an  advertise- 
ment of  sale  in  which  the  day  of  the  week  and  day  of  the  month 
fixed  for  it  are  not  coincident ; "'  or  one  in  which  the  sale  was  by 
mistake  fixed  for  the  wrong  year.^  But  where  the  advertisement 
stated  the  day  of  the  month  correctly,  but  gave  the  wrong  day  of 
the  week,  and  the  mistake  was  corrected  in  the  notice  published  the 
day  before  the  sale,  there  being  no  evidence  of  any  intention  to  mis- 
lead, a  bill  in  equity  to  set  aside  the  sale  for  irregularity  was  dis- 
missed.^ 

Where  a  notice  of  sale  under  a  deed  of  trust  described  three  notes 
secured  by  it,  one  of  them  not  being  due,  and  recited  that  the  trus- 
tee had  been  called  upon  to  sell  the  property  for  the  payment  of  two 
of  them,  there  is  no  implication  that  the  trustee  intended  to  sell  for 
the  payment  of  all  of  the  notes,  and  the  notice  is  not  open  to  objec- 
tion.i*^  A  notice  is  not  objectionable  as  misleading  for  the  reason 
that  it  does  not  mention  that  all  the  notes  have  been  paid  but  one, 
when  it  recites  in  general  terms  that  default  had  been  made.^^ 

1  Banning  v.  Armstrong,  7  Minn.  46.  '^  Miller  v.  Hull,  4  Den.  104. 

2  Mitchell  J'.  Nodaway  Co.  80  Mo.  257.  '  Calloway  v.  People's  Bank,  54  Ga.  441, 

3  Nau  V.  Brunette,  79  Wis.  664,48  N.  W.    450. 

Rep.. 649.  »  Fenuer  v.  Tucker,  6  R.  I.  551. 

<  Burnet  v.  Denniston,  5  Johns.  Ch.  35.  '•»  Chandler  v.  Cook,  2  McArthur,  176. 

See,  also,  Hubbell    v.    Sibley,  5   Lans.  51,  ^o  Tooke  y.  Newman,  75  111.  215. 

50  N.  Y.  468.  ^'  Bush  v.  Sherman,  80  111.  160. 

^  Dana  v.  Farrington,  4  Minn.  43-3.  ^ 

714 


WHAT    THE   NOTICE    SHOULD   CONTAIN.  [§  1853. 

An  error  in  stating  the  amount  of  an  attorney's  fee  stipulated  for 
in  the  mortgage  will  not,  in  the  absence  of  fraud  or  prejudice  to  the 
owner  of  the  land,  invalidate  the  sale.^ 

1853.  Sale  of  equity  of  redemption.  —  A  power  of  sale  in  a 
first  mortgage  which  authorizes  the  mortgagee  to  advertise  and  sell 
at  auction  the  mortgaged  premises,  including  all  equity  of  redemp- 
tion of  the  mortgagor,  gives  no  authority  to  sell  the  equity  of  re- 
demption alone  ;  and  if  the  advertisement  states  only  that  the  equity 
of  redemption  will  be  sold,  it  is  insufficient,  and  the  sale  under  it  is 
invalid.  Any  one  wishing  to  purchase  could  only  infer  from  the 
advertisement  that  he  could  buy  an  estate  on  which  the  incumbrance 
would  continue.2  ]3„t  an  advertisement  by  a  second  mortgagee  of 
"all  the  right,  title,  interest,  and  estate  which,  by  virtue  of  the 
power  contained  in  said  mortgage  and  the  assignments  thereof,  I 
have  the  right  to  sell,  in  and  to"  the  mortgaged  premises,  is  not  de- 
fective, though  the  power  was  to  sell  the  granted  premises  subject 
to  a  prior  mortg-age.     The  legal  effect  of  the  advertisement  is  the 

TIT 

same  as  if  the  language  of  the  mortgage  had  been  used,  and  could 
mislead  no  one.^ 

On  the  other  hand,  the  mortgagee  cannot  sell  a  greater  interest 
than  his  mortgage  gives  him  authority  to  sell.  Holding  a  junior 
mortgaore,  he  cannot  sell  the  entire  estate  free  from  incumbrances, 
but  he  must  sell  subject  to  the  incumbrances  having  precedence  of 
his  mortgage.''  He  cannot  sell  the  entire  estate  as  unincumbered, 
although  the  auctioneer  at  the  sale  states  the  existence  of  the  prior 
mortgage,  and  says  it  may  remain  at  the  option  of  the  purchaser, 
and  the  deed  delivered  to  the  purchaser  also  states  that  he  assumes 
and  agrees  to  pay  the  first  mortgage  as  part  of  the  consideration. 
The  mortgagee  can  sell  under  the  power  only  what  was  conveyed 
to  him,  namely,  an  equity  of  redemption.^  The  consent  of  the  prior 
incumbrancers  to  such  a  sale  would  ])ind  them,  but  would  not  make 

1  Swenson  v.  Halberg,  1  Fed.  Rep.  444.  an  undivided  portion  of  his  interest  in  the 

2  Fowle  V.  Merrill,  10  Allen,  S.'SO ;  Dono-  land  included  in  the  mortgage.  Such  sales 
hue  V.  Chase,  130  Mass.  137,  per  Endicott,  would  pass  no  title  to  the  purchaser,  and 
J.: —  would  not   affect  the    mortgagor's  right  to 

"  A  mortgagee  has  the  right  to  sell,  un-  redeem,  or  the  mortgagee's    own  right  to 

der  a  power  contained  in  his  mortgage,  the  foreclose.     A  proper  execution  of  the  power 

wiiole  title  of. the  mortgagor  and  of  him-  of  sale  contained  in  the  mortgage  requires 

self  in  tlie  land  mortgaged  ;  that  is,  he  may  the  mortgagee  to  sell  all  he  is  entitled  to 

sell  the  equity  of  redemption  of  the  mort-  sell  under  it." 

gagor,  and  such  interest  as  is  conveyed  to  •'  Model  Lodging  House  Asso.  v.  Boston, 

him  by  the  mortgage  under  which  he  sells.  114  Mass.  133. 

But  he  cannot  sell  the  equity  of  redemption  *  Donohue  v.  Chase,  130  Mass.  137. 

of  the  mortgagor  by  itself;  nor  can  he  sell  ^  Dcarualcy  v.  Cha.se,  136  Mass.  288. 

715 


§§  1854,  1855.]     POWER  of  sale  mortgages  and  trust  deeds. 

tlie  sale  valid  as  against  the  owner  of  the  equity  of  redemption.^ 
The  latter,  however,  might  affirm  such  a  sale,  and  he  would  affirm 
it  by  receiving  any  surplus  there  might  be,  or  by  bringing  suit  for 
such  surplus.^ 

1854.  Unimportant  omissions.  —  If  the  notice  contain  such 
facts  as  reasonably  apprise  the  public  of  the  time,  place,  and  terms 
of  sale,  and  describes  the  property  sufficiently,  mere  omissions  or 
inaccuracies  not  calculated  to  mislead  any  one  are  not  to  be  re- 
garded ;  as  where  a  notice  stated  that  the  property  would  be  sold 
for  cash  at  the  court-house  door  in  the  town  of  Hillsboro,  without 
naming  the  county,  or  stating  that  the  sale  would  be  at  public  ven- 
due to  the  highest  bidder.-'^ 

It  need  not  state  the  terms  of  sale,  or  that  the  terms  would  be 
stated  at  the  time  of  sale  ;  and  if  at  the  sale  a  deposit  is  required, 
and  this  prevented  a  person  present  from  bidding,  if  the  mortgagee 
acted  in  good  faith,  and  the  requiring  of  a  deposit  was  usual  and 
reasonable,  this  does  not  invalidate  the  sale.* 

The  advertisement  need  not  be  dated.  The  time  of  its  first  ap- 
pearance by  publication  will  be  taken  as  the  date.^ 

It  is  not  necessary  that  the  advertisement  of  a  sale  under  a  power 
should  state  that  a  default  has  occurred  in  the  performance  of  the 
condition  of  the  mortgage.  The  statement,  that  the  sale  is  by  virtue 
of  the  power  given  by  the  mortgage,  necessarily  implies  that  there 
has  been  a  default.^ 

1855.  A  statutory  requirement  that  the  notice  shall  state  the 
amount  claimed  to  be  due  at  the  time  of  the  tii'st  publication  is 
sufficiently  met  by  a  statement  of  the  amount  claimed  to  be  due  at 
a  certain  prior  date,  and  that  the  mortgagee  claims  that  sum  with 
interest  from  that  tirae.'^  If  only  a  part  of  the  mortgage  debt  be 
due,  it  is  the  usual  and  safer  way  to  state  both  the  whole  amount  of 
the  debt  and  the  amount  of  it  which  has  become  payable.^  The 
fact  that  the  notice  states  a  larger  sum  to  be  due  than  is  actually 
due  does  not  affect  the  validity  of  the  sale,  if  no  actual  injury  or 

1  Cook  V.  Basley,  123  Mass.  396.  H.  424;    Pope  v.  Burrage,  115  Mass.  282  ; 

2  O'Connell  v.  Kelly,  114  Mass.  97.   And    Wing  v.  Hayford,  124  Mass.  249. 

see  Morton  r.  Hall,  118  Mass.  511  ;  Alden  v.  ^  Ramsey  i\  Merriam,  6  Minn.  168. 

Wilkins,  117  Mass.  216.  6  Model  Lodging  House  Asso.  y.  Boston, 

3  Powers  V.  Kueckoff,  41  Mo.  425,  97  114  Mass.  133.  And  see  King  y.  Bronson, 
Am.  Dec.  281.     See,  also,  Gray  v.  Shaw,  14  122  Mass.  122. 

Mo.  341;  Beatie  f.  Butler,  21   Mo.  313,64  '  Judd  v.  O'Brien,  21  N.  Y.  186,   189; 

Am.  Dec.  234;  Hornby  r.  Cramer,  12  How.  Hoyt  v.  Pawtucket  lust,  for  Savings,  110 

Pr.  490.  111.  390. 

*  Model  Lodging  House  Asso.  ;>.  Boston,  ^  Jencks  t;.  Alexander,    11    Paige,  619, 

114  Mass.  133;  Goodale  v.  Wheeler,  11  N.  626. 

716 


SALE  IN   PARCELS.  [§§  1856,  1857. 

fraudulent  purpose  is  shown.^  Although  an  excessive  claim  might 
have  the  effect  to  deter  bidders,  it  cannot  be  inferred  in  the  absence 
of  proof  that  it  actually  had  this  effect.  If  the  mortgagee  should 
bid  up  to  the  amount  of  his  excessive  claim,  and  take  the  property, 
he  would  be  obliged  to  pay  to  the  mortgagor  the  excess  over  what 
was  legally  due.^ 

Where  the  amount  of  the  debt  and  interest  is  given,  "and  the 
taxes,  if  any,"  it  is  not  necessary  to  state  the  amount  of  the  taxes.^ 

It  is  not  necessary,  in  the  absence  of  a  statutory  requirement  or 
of  a  requirement  in  the  mortgage  deed,  that  the  amount  due,  for 
which  the  property  is  sold,  should  be  stated.'' 

1856.  In  advertising  a  sale  under  a  second  mortgage  it  is 
not  essential  to  state  the  amount  due  upon  the  first  mortgage, 
even  if  both  mortgages  are  held  by  the  same  person.  And  if  the 
mortgagee  at  the  sale  slightly  overestimates  the  amount  due  on 
that  mortgage,  it  is  immaterial.'^ 

IX.  Sale  in  Parcels. 

1867.  Generally  there  is  no  obligation  to  sell  in  parcels, 
except  where  such  sale  is  required  by  statute,  or  where  special 
equities,  which  the  mortgagee  is  bound  to  respect,  have  arisen  as  to 
portions  of  the  premises,^  as  where  the  mortgagor  has  subsequently 
sold  a  part  of  the  mortgaged  property."  Even  when  the  mortgagor 
has  alienated  a  part  of  the  mortgaged  property,  and  upon  equita- 
ble grounds  the  purchaser  is  entitled  to  have  the  part  of  the  prem- 
ises not  alienated  first  sold  under  the  power,  he  must  apply  to  a 
court  of  chancery  before  the  sale  for  an  order  directing  the  sale  to 
be  so  made  ;  and  if  he  does  not  do  this  he  cannot  apply  to  have  the 
sale  set  aside  as  against  a  hond  fide  purchaser.^  Tiiere  is  generally 
no  obligation  upon  him  to  sell  in  lots  in  order  to  obtain  a  greater 

1  Fairman  v.  Peck,  87  111.  156  ;  Hamilton  ^  Kiikpatrick  v.  Lewis,  46  Minn.  164,  48 
V.  Lubukee,  51  lU.  415,  99  Am.  Dec.  562;    N.  W.  Kep.  783. 

Jencks  v.  Alexander,  11  Paige,  619  ;  Klock  <  Jenkins  v.  Pierce,  98  111.  646. 

v.  Cronkhite,  1  Hill,  107;  White  r.  McClel-  '"  Model  Lodging  House  Asso.  f.  Boston, 

Ian,  62  Md.  347  ;  Bowers  v.  Hechtmau,  45  114  Mass.  133. 

Minn.  238,  47  N.  W.  Hep.  792.  «  Loveland  v.  Clark,  11  Colo.  265, 18  Pac. 

2  Butterfield  v.  Farnham,  19  Minn.  85;  Rep.  544  ;  Gray  v.  Shaw,  14  Mo.  341;  Siu- 
Bennett  v.  Healey,  6  Minn.  240;  Bailey  f.  gletou  y.  Scott,  11  Iowa,  589, 

Merritt,  7  Minn.  159;  Ramsey  r.  Merriam,  '  Pine  Bluff  Slc.  Ry.    Co.  v.  James,  54 

6  Minn.  168;  Spencer  v.  Anuon,  4  Minn.  Ark.  81,  15  S.  W.  Rep.  15. 

542;  Spottswood  v.  Herrick,  22  Minn.  458;  **  St.  Joseph  Manufacturing  Co.  v.  Dag- 

Seiler  v.  Wilber,  29   Minn.  307,  13  N.  W.  gett,  84  111.  556.  Sec  IMcaclmm  v.  Steele,  93 

Rep.  136.  111.  135  ;  Hosmer  v.  Campbell,  98  111.  572. 

717 


§  1857.]        POWER   OF   SALE    MORTGAGES   AND   TRUST    DEEDS. 

price.^  The  deed  generally  empowers  the  mortgagee  to  sell  the 
whole  estate  upon  any  default,  and  to  pay  the  entire  debt  from  the 
proceeds,  and  usually  makes  no  provision  in  regard  to  the  sale  of 
the  property  in  parcels.^  The  mortgagee  may  nevertheless  sell  in 
parcels  when  the  property  will  bring  a  better  price  by  this  mode 
of  sale,  especially  if  the  mortgaged  premises  consist  of  distinct 
parcels.^  After  he  has  advertised  the  property  to  be  sold  in  lots, 
the  sale  should  be  made  accoi-dingly.  When  the  sale  is  made 
in  parcels,  it  must  stop  when  enough  has  been  realized  to  pay  the 
debt  and  expenses ;  for,  the  debt  being  paid,  the  power  of  sale  is 
exhausted.* 

It  is  true,  however,  that  some  courts  have  adopted  the  rule  that 
all  forced  sales  of  property  shall  be  made  in  parcels,  when  the  lots 
are  sufHciently  distinct  both  in  law  and  in  fact  to  render  distinct 
sales  practicable.^  In  such  case,  when  the  property  is  susceptible 
of  division,  a  sale  of  the  entire  premises  together  will  vitiate  the 
sale,  and  a  court  of  equity  may  set  it  aside.^ 

In  some  States  it  is  provided  by  statute  that  when  the  mort- 
gaged premises  consist  of  distinct  farms  or  lots  they  shall  be  sold 
separately,  and  that  the  sale  shall  cease  when  a  sufficient  sum  has 
been  realized  to  satisfy  the  debt."  The  distinct  farms  or  lots  in- 
tended by  this  provision  are  not  such  as  are  formed  by  a  highway 
or  by  section  lines  crossing  a  farm  mortgaged  as  one  tract,  but 
separate  and  distinct  lots  or  farms  not  forming  together  one  lot 
or  farm  are  intended.^     If  such  separate  lots  were  fenced  and  used 

1  Adams  v.  Scott,  7  W.  R.  213  ;  Cleaver  There  may  be  exceptions,  but  the  purchaser 

V.   Green,  107  111.  67;   Abbott  v.  Peck,  35  must  briiij;  himself  within  them." 

Minn.  499  ;  Grover  v.  Fox,  36  Mich.  461.  »  Sumrall  v.  Chaffin,  48  Mo.  402  ;  Ches- 

As  to  sales  in  parcels  under  decree  of  court,  ley  v.  Chesley,  49  Mo.  540,  54  Mo.  347,  and 

see  §§  1616-1619.  cases  cited. 

■^  Connollys.  Belt,  5  Cranch  C.  C.  405.  ^  New  York:  §  1751. 

3  Holmes  v.  Turner's  Falls  Lumber  Co.  Wisconsin :  §  1762. 

150  Mass.  535,  23  N.  E.  Rep.  305.  Mississippi :  §  1744. 

*  Charter  v.  Stevens,  3  Denio,  33,  45  Am.  Minnesota  :  §  1743. 

Dec.  444  ;  Bakery.  Halligan,  75   Mo.  435  ;  Michigan:  §1741. 

Curry  v.  Hill,  18  W.  Va.  370.  North  Dakota  and  South  Dakota:  §  1752  a. 

5  Rowley  v.    Brown,    1    Binn.  61.     This  ^  Larzelere  y.  Starkweather,  38  Mich.  96  ; 

was  a  sale  on  execution.     The  court  say  :  Yale  v.  Stevenson,  58  Mich.  537,  25  N.  W. 

"It  is  the  rule  of  this  court  to  disallow  in  Rep.  488;  Hull  v.  King,  38  Minn.  349,37 

every  case  a  lumping  sale  by  the  sheriff,  N.  W.   Rep.  792;  Mason  v.   Goodnow,  41 

where  from  the  distinctness  of  the  items  of  Minn.  9,  42  N.  W.  Rep.  482  ;  Bitzer  i-.  Camp- 

the  property  he  can  make  distinct  sales.    It  bell,  47  Minn.  221,  49    N.  W.    Rep.  691; 

is  essential  to  justice  and  to  the  protection  Barge  v.  Klausman,  42  Minn.  281,44N.  W. 

of  the  unfortunate  debtors  that  this  should  Rep,  69;  Child  v.  Morgan   (Minn.),  52  N. 

be  the  general  rule.     Any  other  would  lead  W.  Rep.  1127. 
to  the  most  shameful  sacrifices  of  property. 

718 


SALE   IN   PARCELS.  [§  1858. 

as  one  parcel  when  the  mortgage  was  given,  and  continued  to  be  so 
fenced  and  used,  all  can  be  sold  as  one  parcel.^  If  after  the  giving 
of  the  mortgage  the  land  is  subdivided,  and  other  persons  acquire 
interests  in  separate  portions  of  the  land,  thereby  acquiring  equi- 
ties which  a  court  of  equity  upon  timely  application  would  protect 
by  requiring  the  sale  under  the  mortgage  to  be  made  in  separate 
parcels,  yet  without  such  application  a  sale  of  the  entire  tract  as 
mortgaged  is  rightful,  and  will  not  for  that  reason  be  set  aside.^ 
The  mortgagee,  if  he  chooses,  without  any  direction  of  tlie  court, 
may  respect  the  equities  of  a  purchaser  of  a  portion  of  the  land  and 
sell  the  remaining  land  first,  and  the  mortgagor  has  no  ground  for 
objection  to  such  course  ;  nor  can  he  complain  if  the  mortgagee 
releases  such  portion  previously  conveyed  from  the  lien  of  the  mort- 
gage.8 

Whether  a  sale  contrary  to  the  statute  is  void  or  merely  voidable, 
is  a  question  upon  which  there  is  some  conflict  of  authority,  though 
the  better  rule  is  that  such  a  sale  is  only  voidable  for  cause  shown, 
as  that  it  was  the  result  of  actual  fraud,  or  that  the  sale  was  to  the 
prejudice  of  the  owner  of  the  equity  of  redemption.* 

If  after  a  release  of  a  portion  of  the  premises  the  remainder  can 
be  sold  in  distinct  parcels,  a  sale  of  the  whole  together,  when  this 
would  be  prejudicial  to  the  owner,  is  void  or  voidable.^ 

A  party  interested  in  the  equity  of  redemption,  who  for  a  valu- 
able consideration  has  waived  his  right  to  redeem,  cannot  object 
that  the  sale  was  not  made  in  parcels,  for  the  requirement  is  made 
in  the  interest  of  those  entitled  to  redeem,  and  to  protect  this  right 
in  each  parcel  separately.^  For  the  same  reason  the  mortgagee  can- 
not take  this  objection  to  his  own  proceedings.'^ 

The  fact  that  a  parcel  not  covered  by  the  mortgage  is  sold  with  a 
parcel  covered  by  it,  as  one  tract  and  for  one  gross  sum,  does  not 
avoid  the  sale  of  the  mortgaged  land.^ 

1858.  Under   a  statute  requiring   a  sale   in  parcels  a  mort- 

1  Yale  V.  Stevenson,  58  Mich.  537,  25  N.  Fed.  Rep.  444 ;  Willard  v.  Finnegan,  42 
W.  Rep.  488;  Maxwell  r.  Newton,  65  Wis.  Minn.  476,  44  N.  W.  Rep.  985;  Tillman  v. 
261,  27  N.  W.  Rep.  31.  Jackson,  1  Minn.  183;  Ryder  v.  Hulett,  44 

2  Clark  V.  Kraker  (Minn.),  53  N.  W.  Minn.  353,  46  N.  W.  Rep.  559;  Clark  v. 
Rep.  706;  Johnson  v.  Williams,  4  Minn.  Kraker  (Minn.),  53  N.  W.  Rep.  706;  Cun- 
260;  Paquin  v.  Braley,  10  Minn.  379;  Ab-  ningham  v.  Cassidy,  17  N.  Y.  276. 

hott  V.  Reck,  35  Minn.  499,  29  N.  W.  Rep.  '^  Durm  v.  Fish,  46  Mich.  312,  9  N.  W. 

194;  Willard  v.  Finnegan,  42  Minn.  476,  Rep.  429. 

44  N.  W.   Rep.  985;  Ryder  v.   Ilulett,  44  «  Clark  r.  Stilaon,  36  Mich.  482. 

Minn.  353,  46  N.  W.  Rep,  559.  ^  Clark  v.  Stilson,36  Mich.  482. 

3  Clark  V.  Kraker  (Minn.),  53  N.  W.  Rep.  ^  Bottineau  v.  -(litna  L.  Ins.  Co.  31 
706.  Minn.  125. 

*  SwensoD  v,  Halberg,  1  McCrary,  96,  1 

719 


§  1858.]        POWER   OF   SALE  MORTGAGES    AND   TRUST   DEEDS. 

gagee  is  not  justified  in  selling  the  entire  property  in  one  lot 
when  any  one  interested  in  the  equity  of  redemption  requests  a 
sale  in  parcels,  and  offers  in  good  faith  to  bid  the  amount  of  the 
mortgage  debt  and  expenses  for  a  part  of  the  property  so  situ- 
ated that  it  may  be  conveniently  sold  separately.^  But  a  mort- 
gagee is  not  bound  to  sell  in  parcels  without  request  where  the 
division  into  parcels  was  not  made  until  after  the  execution  of 
the  mortgage.  The  mortgagee  is  often  in  no  situation  to  know 
of  subsequent  divisions  of  the  property  ;  and  a  sale,  therefore,  in 
one  entire  parcel,  should  be  held  to  be  good  unless  a  request  to  di- 
vide it  be  shown.^ 

In  some  cases  it  has  been  said  that  if  the  premises  at  the  time 
of  the  mortgage  consisted  of  one  tract,  and  were  so  described,  the 
mortgagee  is  not  bound  to  sell  in  parcels,  although  the  land  has 
subsequently  been  divided  into  lots,^  and  although  he  is  requested 
by  one  interested  in  the  equity  to  sell  in  lots  according  to  a  plan."* 
When  the  mortgage  describes  the  land  as  one  tract,  it  is  said  that 
it  is  the  right  of  the  mortgagee  by  the  contract  to  sell  the  whole 
of  the  mortgaged  premises  in  satisfaction  of  his  debt ;  but  the 
better  opinion  would  seem  to  be  that  the  obligation  to  sell  in  lots 
has  reference  to  the  situation  of  the  property  at  the  time  of  sale, 
irrespective  of  the  description  in  the  mortgage.^ 

The  criterion  in  all  cases  is.  What  mode  of  sale  will  realize  the 
largest  amount  of  money  ?  If  this  object  can  be  obtained  by  the 
sale  of  the  whole  mortgaged  premises  together,  that  is  the  proper 
mode  to  pursue,  even  if  they  are  readily  divisible.  If  the  land  is 
divisible  into  separate  parcels,  and  is  better  adapted  for  use  in  par- 
cels, then  the  presumption  would  seem  to  be  that  it  would  produce 
a  larger  amount  of  money  if  sold  in  that  way,  and  the  sale  should 
be  made  accordingly.^ 

1  Ellsworth  V.  Lockwood,  42  N.  Y.  89.  have  previously  been  held  and  used  to- 
In  this  case,  although  the  premises  were  gether  as  one  farm,  a  sale  of  the  whole  in 
described  ia  the  mortgage  as  one  tract,  the  one  parcel  is  good.  Anderson  v.  Austin,  34 
mortgage  authorized  a  sale  of  "  any  part  or  Barb.  319. 

parts"  of  it.  ^  Ellsworth  v.  Lockwood,  42  N.  Y.  89,  9 

2  Ellsworth  V.  Lockwood,  9  Hun,  548;  Hun,  548  ;  Durm  ?;.  Fish,  46  Mich.  312,  9 
Shannon  v.  Hay,  106  Ind.  589;  Kline  v.  N.  W.  Rep.  429 ;  Keyes  v.  Sherwood,  71 
Vogel,  11  Mo.  App.  211  ;  Johnson  v.  Wil-  Mich.  516,  39  N.  W.  Rep.  740;  Curry  v. 
liams,  4  Minn.  260;   Paquin  v.  Braley,  10  Hill,  18  W.  Va.  370. 

Minn.  379;  Abbott  r.   Peck,  35  Minn.  499,  «  Wells  v.  Wells,  47    Barb.   416.       See, 

29  N.  W.  Rep.  194;  Willard  v.  Finnegan,  also,  American  Ins.  Co.  v.  Oakley,  9  Paige, 

42  Minn.  476.  259,  38  Am,  Dec.  561  ;  Slater  v.  Maxwell, 

3  Lamerson  v.  Marvin,  8  Barb.  9.  6  Wall.  268,    275 ;  Lalor  v.   McCarthy,  24 
*  Griswold  y.  Fowler,  24  Barb.  135.     Al-  Minn.  417.^ 

though   consisting   of   two    tracts,  if  they 

720 


SALE   IN   PARCELS.  [§  1859. 

1859.  A  trustee  under  a  deed  of  trust  is  bound  to  render 
the  sale  as  beneficial  as  possible  to  the  debtor  ;  and  even  in  the 
absence  of  any  provision  in  the  deed  for  a  sale  of  a  part  of  the 
pi'operty,  or  for  selling  it  in  pai'cels  if  it  be  susceptible  of  division 
and  will  bring  more  b}?^  sale  in  separate  parcels,  or  if  a  sale  of  a 
part  will  satisfy  the  debt,  he  is  bound  to  act  accordingly  ;  ^  and  a 
sale  not  so  made  will  be  held  invalid  on  application  of  the  party 
injured.^  The  trustee  must  exercise  a  sound  discretion  in  selling, 
;md  must  sell  the  land  as  a  whole  where  it  will  sell  for  more  in  this 
way  than  in  parcels,^  and  in  parcels  when  it  will  sell  better  in  this 
way.  The  intervention  and  assistance  of  a  court  of  equity  may  be 
invoked  in  a  proper  case,  to  control  the  trustee  in  the  exercise  of 
his  discretion,  either  to  sell  the  land  as  a  whole  or  to  sell  it  in  par- 
cels.* But  a  sale  once  made  will  not  be  set  aside  merely  on  the 
ground  that  the  property  was  sold  as  a  whole  when  it  was  capable 
of  easy  division.  It  must  appear  further  that  the  interests  of  the 
debtor  were  sacrificed,^  or  that  there  was  some  attendant  fraud  or 
unfair  dealing.^ 

The  mortgage  is  usually  so  drawn  that  the  whole  debt  becomes 
due  upon  any  default;'  but  even  when  this  is  not  the  case,  upon  a 
default  in  the  payment  of  an  instalment  of  interest  or  of  principal 
the  whole  mortgaged  estate  may  be  sold  when  a  sale  of  a  part  would 
greatly  impair  the  whole.^  A  sale  of  the  whole  estate,  or  of  even 
a  part  of  it,  for  an  instalment  only  of  the  mortgage  debt,  exhausts 
the  power  and  the  mortgage  lien.^ 

A  railway  conveyed  by  a  trust  deed  or  mortgage  to  secure  bonds 
may  generally  be  sold  all  together  upon  a  default  in  the  payment  of 
interest,  or  of  an  instalment  of  the  principal,  before  the  maturity 
of  the  entire  principal  of  the  debt,  because  it  would  generally  be 

1  In  Olcott  V.  Bynum,  17  Wall.  44,  62,  *  Torry  y.  Fitzgerald,  32  Gratt.  843. 
\vliere  express  authority  was  given  to  sell  ^  Chesley  v.  ChesU'v,  54  Mo.  347  ;  Ingle 
all  the  property  upon  the  failure  to  pay  any  i;.  Jones,  43  Iowa,  28G  ;  Shiner.  Hill,  23 
instalment  of  the  debt  secured  at  maturity,  Iowa,  264;  Fairman  v.  Peck,  87  III.  156. 
.Mr.  Justice  Swayne  said  :  "  If  enough  of  it  ^  Benkendorf  v.  Viuceuz,  52  Mo.  441  ; 
to  satisfy  the  amount  due  could  be  segre-  Koss  v.  Mead,  10  111.  171  ;  Gillespie  v. 
gated   and  sold  without  injury  to  the  rcsi-  Smith,  29  111.  473,  81  Am.  Dee.  388. 

due,  it  would  have  been  the  duty  of   the        ^  §  1181;   Seaton  v.  Twyford,  L.  R.  11 
mortgagees  so  to  sell."  Eq.  Gas.  591  ;    Philips   v.  Bailey,  82  Mo. 

2  Tatum  V.  Holliday,  59  Mo.  422;  Goode    639. 

r.  Comfort,  39  Mo.  313;   Gray  i'.   Shaw,  14  «  Olcott  v.  Bynum,   17   Wall.   44;    Dun- 

.Mo.  341  ;  Taylor's  Heirs  v.  Elliott,  32  Mo.  ham  v.  Cm.,  Peru,  &c.  Knilway  Co.  1  WaU. 

172,  175.  254;  Pope  v.  Duraut,  2C  Iowa,  233;    Sal- 

2  SinL'leton  v.  Scott,  11  Iowa,  589;  Kel-  mon  v.  Clagett,  3  Bland.  125. 

loggi".  Carrico,  47  Mo.  157;  Carter  y.  Ab-  ^  Powlcr    v.    Johnson,    26    Minn.    338; 

shire,  48  Mo.  300;  Torry  ?;.  Fitzgerald,  32  Standish  i'.  Vosl)erg,  27   Minn.   175;  Prjor 

Gratt.  843.  v.  Baker,  133  Mass.  459. 

VOL.  11,                   46  721 


§  I860.]       POWER   OF   SALE   MORTGAGES   AND   TRUST   DEEDS. 

the  case  that  the  line  of  road  could  not  be  divided  and  sold  in 
pieces  without  manifest  injury  to  the  property.  The  fact  that  the 
road  is  situated  in  two  or  more  States,  and  was  originally  owned  by 
two  corporations  created  in  different  States,  does  not  affect  the  de- 
termination of  this  question.^ 

1860.  Sale  of  suflBcient  only  to  pay  the  debt.  —  When  a 
snortgage  or  trust  deed  authoi'izes  the  sale  of  the  whole  premises 
tupon  a  default,  a  sale  of  the  whole  is  regular,  and  as  a  rule  no 
jDOurt  will  interfere  with  the  exercise  of  the  power  in  this  way. 
Yet  it  has  been  held,  where  the  policy  of  the  laws  of  a  State  seemed 
to  require  that  all  forced  sales  of  land  should  be  confined  to  such 
portions  of  the  premises  as  are  sufficient  to  satisfy  the  debt,  that  a 
court  of  equity  might  interpose  to  prevent  the  full  exercise  of  the 
power  if  the  lands  are  divisible.  But  this  is  an  interference  with 
the  contract  of  the  parties  which  the  courts  will  not  make  unless 
very  strong  reasons  exist  for  so  doing.^  The  trustee  or  mortgagee 
may  advertise  the  whole  of  the  lands,  for  until  the  property  is 
actually  offered  for  sale  it  cannot  be  known  with  certainty  how 
much  of  it  will  be  necessai-y  to  satisfy  the  mortgage  debt.^  The 
whole  of  the  mortgaged  lands  must  be  sold  together  if  they  cannot 
be  divided  without  injuriously  affecting  the  sale  or  the  value  of  the 
part  not  sold.* 

Although  the  debt  be  payable  in  instalments,  and  only  one  of 
them  is  due,  a  sale  of  the  whole  estate  may  be  made.  The  power 
contemplates  only  one  sale,  and  the  statutes  do  not  provide  for  a 
sale  subject  to  future  instalments.^ 

1  Wilmer  v.  Atlanta  &  Richmond   Air  bid  in  the  property  in  satisfaction   of  the 

Line  R.  R.  Co.  2  Woods,  447.  note.     The  amount  bid  was  about  one  third 

■^  Johnson  v.  Williams,  4  Minn.  260.  of  the  value  of  the  property  ;  and  the  holder 

3  Cleaver  v.  Mathews,  83  Va.  801,3  S.  E.  of  the  note,  the  trustee,  and  the  debtor  all 

Rep.  439.  knew  that  the  two  other  notes  were  still 

*  Michie  I'.  Jeffries,  21  Gratt.  334.  outstanding,  and  held  by  another  person; 

^  Barber  i-.  Gary,  11  Barb.  549;  Bunce  and   that  the   sale   was   made  in   satisfac- 

V.  Reed,  16  Barb.  347  ;  Cox  v.  Wheeler,  7  tiou   of   the   first  note  only.      The  debtor 

Paige,  248 ;    McLean  v.  Presley,   56    Ala.  redeemed  the  land  from  the  sale,  and  the 

211.     See  Pryor  v.  Baker,  133  Mass.  459.  holder  of  the  other  two  notes  brought  suit 

It   has   been    held,  however,    that   there  to  foreclose  them.      It  was  held  that  the 

may  be  successive  sales  of  the  property  to  last  two  notes  were  still  a  lien  on  the  land, 

pay  instalments  of  the  debt  secured.    Thus,  and  that  the  property  might  be  foreclosed 

where  a  trust  deed  secured   three  promis-  and   sold    in   satisfaction   of    these    notes, 

sory  notes  payable  at  intervals  of  a  year,  Shields  v.  Dyer,  86  Tenn.  41,  5  S.  W.  Rep. 

the  holder  of  the  note  first  maturing  sold  439. 
the  property  under  the  power  of  sale,  and 

722 


CONDUCT    OF   SALE,   TERMS,    AND    ADJOURNMENT.       [§§  1861,  1862. 

X.    Conduct  of  Sale,  Terms,  and  Adjournment. 

1861.  Mortgagee  may  act  by  attorney.  —  The  entr}'^  upon  the 
premises  authorized  by  the  power,  the  giving  of  the  notice  of  sale, 
and  the  conduct  of  the  sale,  are  acts  which  the  mortgagee  may 
perform  through  others,  whose  authority  need  not  be  under  seal  or 
in  writing.!  He  may  employ  an  auctioneer  to  make  the  sale,  and 
his  personal  presence  at  the  time  and  place  of  sale  is  not  essential.^ 
In  general  he  may  employ  an  agent  or  attorney  to  do  any  acts 
which  are  merely  ministerial,  and  which  involve  no  exercise  of  dis- 
cretionary powers.^  Of  course  he  makes  himself  responsible  for 
his  agent's  acts;  and  if  he  allows  his  agent'to  receive  the  proceeds 
of  the  sale,  and  they  are  lost  or  misapplied,  he  cannot  sue  the  mort- 
gagor for  the  debt ;  or  if  he  concurs  with  an  assignee  from  the 
mortgagor  of  the  equity  of  redemption  in  selling  the  property,  and 
allows  him  to  receive  the  purchase-money,  he  may  be  perpetually 
restrained  from  suing  the  mortgagor  for  the  debt.^  It  is  not  neces- 
sary that  the  mortgagee  be  personally  present  at  the  sale.  This 
may  be  conducted  by  his  attorney,  whose  acts  he  ratifies  by  subse- 
quently making  the  deed  necessary  to  convey  the  property.^ 

1862.  But  a  trustee  under  a  deed  of  trust  should  be  person- 
ally present  at  the  sale,  so  that  he  may,  if  necessary  to  prevent  a 
sacrifice  of  the  property,  adjourn  the  sale,  which  it  would  be  clearly 
his  duty  to  do;  therefore  his  absence  at  the  sale  has  been  held  to 
render  the  sale  void.*^  He  cannot  delegate  his  power  to  a  stranger 
unless  the  deed  of  trust  authorizes  him  to  do  so."     In  case  he  is  au- 

1  Hoit  V.  Russell,  56  N.  H.  559;    Cran-  48;  Vail  v.  Jacobs,  62  Mo.  130;  Graham 
ston  V.  Craue,  97  Mass.  459,  93  Am.  Dec.  i;.  Kin^^  50  Mo.  22,  11  Mo.  401 ;  Bales  v. 
106  ;  Yourt  v.  Hopkins,  24  111.  326  ;  Watson  Perry,  51  Mo.  449;  Singer  Manufacturing 
f.  Sherman,  84  111.  263.  Co.   v.  Chalmers,  2   Utah,  542;    Wicks  v. 
-  Fogarty  r.  Sawyer.  23  Cal.  570.  Westcott,  59    Md.  270;   Fuller   v.  O'Neil, 
In  Rhode  Island  no  officer  of  any  corpo-  69  Tex.  349,  6  S.  W.  Rep.   181.     In  Con- 
ration  shall  act  as  auctioneer  in  the  fore-  noUy  v.  Belt,  5   Cranch  C.  C.  405,  it  was 
closure  of  any  mortgage  held  by  such  cor-  held   tliat  the  trustee  might  dtpute  a  com- 
poration.     P.  S.  1882,  ch.  137,  §  9.  peteut  agent  to  attend  the  sale  and  conduct 
3  Hubbard  v.  Jarrell,  23  Md.  66,  82.  it;  and,  in  the  absence  of  a  statute  rcquir- 
*  Palmer  v.  Hcndrie,  28  Beav.  341.  ing  the  trustee  to  be  present,  the  sale  would 
^  Munn  ?;.  Burges,  70  111.  604  ;  McIIany  be  valid.     This  case  seems  to  be  approved 
V.  Schenk,  88  111.  357  ;  Parker  v.  Banks,  79  in  Smith  v.  Black,  115  U.  S.  308,  6   Sup. 
N.  C.  480;  Welsh  v.  Coley,  82  Ala.  363,  2  Ct.  Rep.  50.     To  like  effect   see  Tyler  v. 
So.  Rep.  733.     Otherwise  in  Texas:   Dun-  Herring,   67    Miss.  169,    6    So.    Rep.,  840; 
lap  V.  Wright,  11   Tex.  597,62  Am.  Dec.  Dunton  v.   Sharpe,  70  Miss.    850,    12    So. 
506;   Harris  v.  (Jiitlin,  53  Tex.  8;  Crafts  v.  Rep.  800. 

Dougherty,  69  Tex.  477,  6  S.  W.  Rep.  850;  '  Smith  v.  Lowther,  35  W.  Va.  300,  13 

Bitter  v.  Calhoun,  8  S.  W.  Rep.  523.  S.  E.  Rep.  999. 
■'  Landrum  v.  Union  Bank  of  Mo.  6  Mo. 

723 


§  1863.]        POWER   OF  SALE  MORTGAGES   AND   TRUST   DEEDS. 

thorized  to  delegate  such  power,  it  would  devolve  upon  one  asserting 
the  sale  to  show  that  it  had  been  delegated  to  the  person  who  actually- 
made  it.i  He  must,  morever,  be  present  during  tlie  whole  sale ;  it 
is  not  sufficient  that  he  is  present  at  its  opening  and  close,  if  he  be 
absent  during  its  progress.^  He  is  bound  to  adopt  all  reasonable 
precautions  to  render  the  sale  beneficial  to  the  debtor;  a  bare  com- 
pliance with  the  terms  of  the  power  is  not  enough.  He  must  to 
this  end  exercise  a  reasonable  judgment  or  discretion  in  respect  to 
advertising  the  property  and  conducting  the  sale.  In  respect  to  all 
duties  which  are  not  merely  mechanical  or  ministerial,  and  are  not 
prescribed  by  the  terms  of  the  deed,  a  special  trust  and  confidence 
are  reposed  in  him,  and  he  cannot  delegate  these  to  an  agent. -^ 

He  has  an  undoubted  right,  however,  to  employ  an  auctioneer  to 
sell  the  lands  conveyed,  provided  he  is  himself  present  at  the  sale, 
directing  and  controlling  it.^ 

The  sale  must  be  made  by  the  person  authorized  in  the  deed  to 
make  it.  He  cannot  act  by  an  agent,  unless  the  deed  expressly 
provides  that  he  may  do  so.^  Thus,  if  the  deed  provides  that  the 
sale  shall  be  made  by  the  United  States  marshal,  a  deputy  can- 
not act  as  auctioneer,  and  make  the  sale  in  the  absence  of  the 
marshal.^ 

If  the  deed  be  to  two  trustees,  either  of  whom  is  authorized  to 
sell  on  default,  and  both  join  in  giving  notice  and  in  executing  the 
deed  to  the  purchaser,  the  power  is  well  executed  although  but  one 
attended  the  sale.'^  But  a  sale  at  which  only  one  of  two  trustees 
was  present  is  invalid,  unless  the  deed  expressly  provides  that  one 
may  act  alone  ;  and  it  is  not  rendered  valid  by  the  absent  trustee's 
ratifying  the  sale  and  joining  in  the  deed,  with  no  information  as  to 
the  state  of  affairs  at  the  sale.^ 

1863.  The  power  generally  provides  that  the  sale  shall  be 
by  public  auction,  and  in  such  case  there  can  be  no  valid 
private  sale.  If  the  power  allows  of  either  mode,  a  private  sale 
made  in  good  faith  and  for  a  fair  price  is  good,  even  without  any 
advertisement.^     If  the  authority  be  to  sell  by  private  contract,  a 

1  Littell  V.  Jones,  56  Ark.  139,  19  S.  W.  '^  Weld  v.  Rees,  48  111.  428;    Smith  v. 

Rep.  497.  Black,  115  U.  S.  308,  6  Sup.  Ct.  Eep.  50. 

•^  Brickenkamp  i-.  Rees,  69  Mo.  426.  **  Black  v.  Smith,  4  McArthur,  338. 

3  Bales  V.  Perry,  51  Mo.  449.  ^  Davey  v.  Durant,  1    De  G.   &  J.  535  ; 

4  McPherson  v.  Sanborn,  88  111.  150;  Brouard  v.  Dumaresque,  3  Moore  P.  C.  C. 
Taylor  ?;.  Hopkins,  40  111.  442.  457;    Montague  v.  Uawes,  12  Allen,  397  ; 

^  Hess  V.  Dean,  66   Tex.  663,  2  S.  W.  Lawrence  v.  Farmers'  Loan  &  Trust  Co. 

Rep.  727;  Grover  v.  Hale,  107  111.  638.  13  N.  Y.  200;    Elliott  v.  Wood,  45  N.  Y. 

6  Singer  Manufacturing  Co.  v.  Chalmers,  71. 
2  Utah,  542. 

724 


CONDUCT   OF   SALE,   TERMS,   AND   ADJOURNMENT.        [§  1864. 

sale  at  auction  would  not,  it  is  conceived,  be  justified  ;  ^  for  the 
object  in  authorizing  a  private  sale  may  be  supposed  to  be  the 
obtaining  of  a  better  price  than  would  ordinarily  be  realized  by 
an  auction  sale.  If  the  power  contains  no  restriction  or  provi- 
sion as  to  the  mode  of  sale,  the  mortgagee  may  sell  at  private  sale 
as  well  as  by  public  auction,  though  as  a  general  rule  a  sale  by 
auction  would  be  the  safer  and  better  course.  If  the  power  makes 
provision  for  a  sale  by  auction,  prescribing  the  place  of  sale  and  the 
length  of  time  the  notice  shall  be  advertised,  this  precludes  the  right 
to  sell  at  private  sale.^ 

1864.  The  terms  of  sale,  while  they  should  properly  make  it 
safe  for  the  mortgagee,  should  not  be  so  stringent  as  to  deter  per- 
sons from  attending  the  sale  and  bidding.  If  the  conditions  are 
such  as  to  have  this  effect  the  sale  may  be  avoided.  Not  only  must 
the  mortgagee  adhere  strictly  to  the  terms  of  the  power,  but  in  the 
trust  relation  in  which  he  stands  towards  the  persons  interested  in 
the  equity  of  redemption  he  is  bound  to  adopt  proper  means  to  get 
a  reasonable  price  for  the  property .^  There  should  be  no  special 
conditions  for  the  advantage  of  any  third  person,  such  as  might 
depreciate  the  property.  Any  condition  that  a  prudent  and  rea- 
sonable owner  would  impose  when  selling  in  his  own  right  is  jus- 
tifiable in  a  sale  by  the  mortgagee  under  the  power.  The  mort- 
gagee may  make  reservations  for  the  benefit  of  the  owner  of  the 
equity  of  redemption,  as,  for  instance,  a  reservation  of  a  growing 
crop.^ 

Although  by  the  terms  of  the  mortgage  the  sale  is  to  be  for  cash 
only,  the  mortgagee  has  the  right  to  agree  with  the  purchaser  to 
allow  him  time  for  the  payment  of  the  purchase-money.  Tliis  is  a 
matter  between  the  mortgagee  and  the  purchaser,  which  they  can 
arrange  to  suit  themselves.^ 

The  mortgagor  is  interested  only  in  the  surplus  money  after  the 
payment  of  the  mortgage  debt,  and  he  may  recover  this  from  tiie 
mortgagee  in  an  action  for  money  had  and  received,  notwithstand- 
ing the  purchaser's  notes  afterwards  become  worthless.^ 

1  See  Daniel  v.  Adams,  Amb.  495.  chaser  at  the  sale,  he  is  liable  for  the  crops 

2  Griffin  v.  Marine  Co.  .52  111.  130.  or  rents  upon  a  subsequent  redemption  by 

3  Falkner  v.  Ecjuitable  Ileversionary  So-  the  mortf,'agor.  Koulhac  v.  Jones,  78  Ala. 
ciety,  4  Drew.  352 ;  Matthie  v.  Edwards,  2  398. 

Coll.  465.  ^  Durden  v.  Whetstone,  92  Ala.  480,  9 

*  Sherman  v.  Willctt,  42  N.  Y.  146.  If  So.  Hep.  176;  Mewburu  v.  Bass,  82  Ala. 
a  mort^'agee  in  possession,  upon  making,'  622,  2  So.  Uep.  520;  Cooper  j;.  Horn sby,  71 
a  sale,  reserves  the  crops  or  the  rents  for    Ala.  62. 

the  year,  and    himself    becomes    the   pur-        «  Tompkins    v.    Drennen,   56  Fed.    Kep. 

694. 

725 


§§  1865,  1866.]     POWER  of  sale  mortgages  and  trust  deeds. 

If  the  mortgage  provides  for  a  sale  for  cash,  the  sale  is  not  vitiated 
by  an  announcement  at  the  time  of  sale  that  payment  in  gold  and 
silver  or  legal  tender  currency  will  be  required  within  twelve  or 
twenty-four  hours  after  the  sale,  when  no  fraudulent  purpose  in 
making  such  terms  is  shown. ^ 

1865.  The  acquiescence  of  the  mortgagor  in  the  conduct  of 
the  sale,  and  particularly  in  the  terms  of  it,  will  cure  any  defect 
in  this  respect,  and  give  validity  to  it.^  In  Markey  v.  Langley  the 
mortgagor  was  present  at  the  sale,  and  made  no  objection  to  the 
terms  and  conditions  of  it,  and  his  acquiescence  was  held  to  conclude 
him  from  making  objection  afterwards.  The  case  of  Taylor  v. 
Ghoivyiing  is  to  the  same  effect.  Where  property  is  sold  for  cash  to 
the  debtor,  who  is  the  highest  bidder,  but  he  is  unable  to  raise  the 
money  required,  it  may  be  sold  to  the  next  highest  bidder  without 
again  putting  the  propertj'^  up  and  striking  it  off.  The  debtor,  hav- 
ing been  indulged  in  a  little  time  to  make  his  bid  good,  and  having 
failed  to  do  so,  is  in  no  position  to  complain  of  a  technical  infor- 
mality.^ 

The  usual  and  proper  course,  however,  is,  upon  the  failure  of  a 
bidder  to  make  payment  at  the  time,  to  reopen  the  sale  before  the 
bidders  disperse,  or  to  adjourn  the  sale  to  a  time  then  declared.^ 

1866.  Payment  at  time  of  sale.  —  In  fixing  the  terms  of  pay- 
ment for  a  sale  under  a  mortgage  or  trust  deed,  the  mortgagee  or 
trustee  is  bound  to  act  fairly  and  with  proper  discretion.  Jt  is  usual 
to  require  a  deposit  at  the  time  of  sale  of  a  reasonable  sum  to  cover 
the  expenses  of  sale,  and  insure  the  completion  of  it  by  the  pur- 
chaser. If  the  payment  of  the  whole  amount  of  the  purchase-money 
be  arbitrarily  required  at  the  time  of  sale,  or  within  an  hour's  time 
after  it,  against  the  remonstrances  of  persons  in  attendance  at  the 
sale,  the  sale  will  be  set  aside.^     It   must   be  shown,  however,  that 

1  Lallance  v.  Fisher,  29  W.  Va.  512,  2  S.  difficulty  of  intercourse  between  the  North 
E.  Bep.  775.  and  the  South  during  the  war,  there   was 

2  Tajlor  V.  Chowninfr,  3  Leigh,  654  ;  acquiescence,  express  and  implied,  for  three 
Meier  v.  Meier,  105  Mo.  411,  16  S.  W.  Rep.  years  after  the  war  ceased.  This,  if  not 
223  ;  Lunsford  v.  Speaks,  112  N.  C.  608,  17  conclusive,  weighs  heavily  against  the  com- 
S.  E.  Rep.  430,  per  MacRae,  J. ;  Markey  v.  plainant." 

Langley,  92  U.  S.  142  ;  Olcott  v.  Bynum,  ^  Maloney  v.  Webb,  112  Mo.  575,  20  S.  W. 

17  Wall.  44,  64.     In  the  latter  case  there  Rep.  683. 

had  been  a  sale  of  land  in  North  Carolina  *  Davis 'y.  Hess,  103  Mo.  31,   15  S.  W. 

under  a  power  in  the  year  1860.     When  the  Rep.  324. 

bill  was  filed  to  set  it  aside,  nearly  eight  ^  Goldsmith  v.  Osborne,  1  Edw.  Ch.  560, 

years  had  elapsed.     The  mortgagor  resided  562.     See  Model  Lodging  House   Asso.  v. 

in    New  York,    and  the    other    parties  in  Boston,  114  Mass.  133 ;  Maryland  Land  & 

interest  in  North    Carolina.     Mr.   Justice  Build.  Soc.  v.    Smith,    41   Md.    516.     See 

Swayne  said  :   "Making  allowance  for  the  §  1613. 

726 


CONDUCT    OF   SALE,    TERMS,    AND   ADJOURNMENT.        [§  1866. 

this  requirement  had  the  effect  of  keeping  persons  present  from 
bidding.!  A  requirement,  not  of  the  immediate  payment  of  the 
entire  purchase-money,  but  of  a  deposit  of  a  sum  unusually  large, 
and  not  proportioned  to  the  value  of  the  property,  would  have  the 
same  effect  in  invalidating  the  sale.  It  is  not  unreasonable  to  re- 
quire the  payment  of  $500  down  upon  a  sale  under  a  mortgage  for 
$8,000,  although  the  advertisement  of  the  sale  did  not  state  that 
such  a  payment  would  be  required,  but  did  state  that  the  terms  of 
sale  would  be  stated  at  the  time  of  sale.  At  such  a  sale  a  person 
who  had  been  requested  by  the  mortgagor,  who  was  present,  to-run 
up  the  estate  for  him,  having  bid  it  off,  and  not  having  $500  with 
him  to  pay,  and  not  asking  any  delay,  the  estate  was  put  up  again 
and  sold  for  a  less  sum.  It  was  held  that  there  was  no  evidence  in 
these  circumstances  of  fraud  or  unfairness  in  the  sale.^ 

In  a  case  in  Maryland,  property  worth  at  least  $6,600  was  pur- 
chased by  the  mortgagee  for  $1,600  ;  and  it  further  appeared  that 
it  had  previously  been  struck  off  to  another  purchaser  for  the  sum 
of  $2,-375,  who  tendered  about  half  of  this  in  cash,  and  stated  that 
he  would  pay  the  balance  on  the  ratification  of  the  sale  as  required 
by  the  laws  of  that  State,  and  offered  sufficient  security  for  this. 
The  mortgagee  declined  to  receive  the  money,  as  not  in  conformity 
with  the  terms  of  sale,  which  were  for  cash ;  and  upon  a  subsequent 
offer  of  the  property  the  mortgagee  purchased  it.  The  sale  was  set 
aside.  Mr.  Justice  Stewart,  delivering  the  opinion  of  the  court, 
said  the  mortgagee  had  "  misapprehended  the  nature  of  his  duty  as 
trustee,  which  required  an  advantageous  sale  of  the  property  for  the 
benefit  of  all  the  parties  interested.  .  .  .  There  is  this  difference, 
however,  between  the  trustee  and  the  mortgagee,  which  should  never 
be  forgotten  by  the  latter  :  that  he  has  a  personal  interest  in  the 
proceeding,  and  that  the  mortgiigor  has,  notwithstanding,  reposed 
full  trust  and  confidence  in  his  strict  impartiality,  and  that  there 
must  be  ample  reciprocity  on  his  part  by  a  fair  and  just  discharge 
of  his  duty."  3 

The  actual  payment  of  the  deposit  may  be  waived  without  affect- 
ing the  validity  of  the  sale.  Thus,  where  land  had  been  sold  under 
a  power  for  more  than  enough  to  satisfy  the  mortgage  debt,  the 
validity  of  the  sale  was  objected  to  because  the  purchaser  had  not 
paid  down  fifty  dollars  in  cash  as  required  by  the  terms  of  the  sale. 
It  appeared  that  the  purchaser,  when  he  bid  off  the  property,  did 

1  Goode  V.  Comfort,   39  Mo.   313,  326;        »  Horsey    v.  IIou<?h,  38  Md.    130,  cited 
Jones  y.  Moore,  42  Mo.  413.  with  approval    by  Mr.  Justice  Swayne  in 

■i  Wingu.  Hayford,  124  Mass.  249,  Markey  v.  Langley,  92  U.  S.  142,  154. 

727 


§§  1867, 1868.]     POWER  of  sale  mortgages  and  trust  deeds. 

not  have  that  sum,  but  the  auctioneer  agreed  to  advance  it,  and  told 
the  mortgagee  that  the  purchaser  had  paid  it,  and  that  the  money 
was  ready  for  him.  It  was  held  that  this  arrangement,  not  objected 
to  by  the  mortgagee  at  the  time,  had  the  effect  of  a  payment  of  the 
mortgage  debt  to  the  amount  of  such  sum  of  fifty  dollars,  and  that 
the  validity  of  the  sale  could  not  be  objected  to  because  the  pur- 
chaser did  not  actually  pay  over  this  sum.  If  the  purchaser  had 
actually  paid  the  deposit  to  the  auctioneer,  the  mortgagee  would 
have  been  obliged  to  look  to  him  for  it,  just  as  he  is  obliged  to  look 
to  him  for  it  under  the  agreement  made.^ 

1867.  Time  for  examination  of  title.  —  Among  other  conditions 
of  sale  it  is  usual  to  provide  that  a  certain  time  shall  be  allowed  the 
purchaser  for  the  examination  of  the  title  before  the  purchase-m.oney 
is  payable.  If  unexpected  difficulties  occur  in  completing  the  ex- 
amination of  title,  or  in  making  the  title  satisfactory  to  the  pur- 
chaser, much  more  time  than  that  stipulated  for  may  be  necessary. 
In  such  cases  time  is  not  generally  considered  of  the  essence  of  the 
contract.^ 

1868.  Giving  credit.  —  In  general  it  may  be  said  that  where  a 
power  of  sale  does  not  expressly  authorize  the  mortgagee  to  give 
credit,  or  to  accept  a  mortgage  in  part  payment  of  the  purchase- 
money  under  the  sale  to  be  made  by  him,  a  sale  for  cash  is  contem- 
plated, and  he  would  not  be  authorized  to  give  credit  for  more  than 
the  amount  of  the  debt  due  him,  as  the  mortgagor  or  subsequent  in- 
cumbrancers are  entitled  to  receive  the  surpkis  remaining  after  the 
payment  of  the  mortgage  debt  in  cash.  The  persons  entitled  to  the 
surplus  could,  of  course,  by  subsequent  agreement,  waive  this  right, 
and  join  the  mortgagee  in  giving  credit  for  the  amount  coming  to 
them. 

A  purchaser  at  the  sale  is,  of  course,  chargeable  with  notice  of 
any  requirement  contained  in  the  mortgage  as  to  credit,  and  with 
notice  of  any  irregularity  attending  the  sale  in  this  respect ;  but  a 
remote  purchaser  is  not  chargeable  with  such  notice.^  If  a  require- 
ment that  the  sale  be  for  cash  be  substantially  though  not  literally 
complied  with,  and  no  injury  be  done  to  the  mortgagor,  no  objection 
can  be  taken  to  the  sale.*  If  the  mortgagee  or  the  trustee  in  a  deed 
of  trust,  in  making  a  sale  purporting  to  be  for  cash,  gives  credit,  or 
has  an  understanding  with  the  bidder  that  credit  will  be  given  him 
on  part  of  his  bid,  in  order  to  induce  him  to   make  the  property 

1  Farnsworth  iJ.   Boardman,    131    Mass.        3  Johnson  y.  Watson,  87  111.  535. 

J15  4  Ballinger  v.  Bourland,  87  111.   513,  29 

2  Hobson  V.  Bell,  2  Beav.  17.  Am.  Rep.  69  ;  Burr  v.  Borden,  61  111.  389. 

728 


CONDUCT   OF   SALE,    TERMS,    AND   ADJOURNMENT.       [§§  1869,  1870. 

bring  the  full  amount  of  the  debt  secured,  this  is  not  to  the  injury 
of  the  mortgagor,  or  those  claiming  under  him,  and  will  not  avoid 
the  sale.^ 

If  a  deed  of  trust  provides  for  a  sale  for  cash,  a  decree  for  the 
sale  of  the  trust  property  should  conform  to  the  terms  of  the  deed, 
unless  all  the  parties  in  interest  consent  to  a  change  of  the  ternis.^ 
If  the  power  of  sale  provides  that  the  sale  shall  be  for  cash,  the 
validity  of  it  is  not  affected  by  giving  credit.^  If,  upon  a  sale  under 
a  power  to  sell  for  cash,  the  purchaser  gives  his  check,  which  is 
good,  and  it  is  accepted  as  cash,  he  complies  with  the  requirement."* 

1869.  "When  the  power  does  not  prescribe  the  terms  of  sale, 
the  sale  may  properly  be  for  cash,  even  where  it  is  customary  to 
give  credit  on  foreclosure  sales/^  In  ^Maryland,  where  sales  under 
powers  must  be  reported  to  the  court  and  confirmed  to  make  them 
valid,  an  objection  to  a  sale  for  cash  as  harsh  and  inequitable  can 
be  taken  only  upon  the  ratification  of  the  sale,  and  is  no  ground  for 
enjoining-  it.^ 

A  sheriff,  making  a  sale  under  a  deed  of  trust  as  trustee,  made 
proclamation  that  the  purchase-price  must  be  paid  within  thirty 
minutes  after  the  sale.  The  wife  of  the  debtor  bid  in  the  property. 
Upon  being  asked  what  she  could  do,  she  replied  that  she  did  not 
know,  and  then  left,  and  did  not  return.  The  sheriff  resold  the 
property  for  a  larger  sum.  It  was  held  that  the  sheriff's  conduct 
was  not  oppressive  ;  that,  the  sale  being  for  cash,  he  was  justified  in 
requiring  immediate  payment ;  and  that  it  was  proper  for  him  to 
resell  before  the  bidders  dispersed,  and  so  avoid  the  necessity  of  re- 
advertising." 

1870.  If  the  mortgagee  may  sell  for  cash  or  credit  he  must 
use  his  discretion  fairly.  When  by  the  terms  of  the  power  he  is 
authorized  to  use  his  discretion  in  this  respect,  he  must  use  it  fairly 
in  the  interest  of  the  mortgagor,  and  not  merely  for  his  own  in- 
terest ;  and  if  the  property  is  subject  also  to  other  liens,  the  mort- 

1  Marsh  w.  Hubbard,  50  Tex.  203 ;  Chase  making  the  sale,  occupied  the  position  of 
V.  First  Nat.  Bank  (Tex.),  20  S.  W.  Rep.  the  trustee,  and  he  was  in  duty  bound  to 
1027.  act  in  good  faith  as  an  indifferent  person, 

2  Wood  V.  Krebbs,  3.3  Graft.  68.5  and  adopt  all  reasonable  methods  of  pro- 

3  Mewburn  v.  Bass,  82  Ala.  622,  2  So.  ceeding  in  order  to  make  the  land  bring  the 
Rep.  520.  most  money,  but  he  was  not  called   upon 

*  McConncaughey  v.  Bogardus,  106  111.    to  pursue  that  course  which  would  compel 

321  ;  Carey  v.  Brown,  62  Cal.  373.  him  to  readvertise   the  property.     Had  he 

5  Olcott  V.  Bynum,  17  Wall.  44.  suffered  the  bidders  to  disperse  without  any 

6  Powell  v.  Ilopkins,  38  Md.  1.  proclamation   as   to  when  he  would  resell, 
^  Davis  V.  Hess,  103  Mo.  31,   15  S.  W.     it  would  have  been  his  duty  to  readvertise." 

Rep.  324.     Per  Black,  J. :  "  The  sheriff,  in    Judge  v.  Booge,  47  Mo.  544. 

729 


§  1871.]        POWER   OF    SALE    MORTGAGES   AND    TRUST   DEEDS. 

gagee  in  selling  under  his  power  is  a  trustee  for  them,  as  well  as  for 
the  mortgagor.  Wiiether  he  shall  sell  for  cash  or  for  credit,  or  for 
both,  when  expressly  authorized  to  do  either,  is  a  matter  for  his 
discretion,  to  be  fairly  exercised  for  the  benefit  of  all  concerned. 
"  He  must  regard  the  interest  of  others  as  well  as  his  own.  He 
should  seek  to  promote  the  common  welfare.  If  he  does  this,  and 
keeps  within  the  scope  of  his  authority,  a  court  of  equity  will  in 
nowise  hold  him  responsible  for  mere  errors  of  judgment,  if  they 
have  occurred,  or  for  results,  however  unfortunate,  which  he  could 
not  have  anticipated."  ^ 

1871.  The  mortgagee  may,  in  making  the  sale,  take  all  the 
risk  of  the  credit  or  for  the  purchase-money  upon  himself,  and 
charge  himself  with  the  whole  proceeds,  and  then  pay  the  surplus 
in  cash  to  the  owner  of  the  equity  of  redemption,  or  others  entitled 
to  it.  With  this  limitation,  neither  the  mortgagor  nor  other  parties 
interested  in  the  property  can  object  to  the  giving  of  credit,  for  this 
affords  an  opportunity  to  make  a  better  sale,  and  is  for  the  benefit 
of  all  parties.^  Although  the  deed  itself  provides  that  the  sale  shall 
be  made  for  cash,  the  mortgagee  may  give  credit  for  that  part  of 
the  proceeds  coming  to  him  ;3  and  if  there  is  no  surplus,  there  is  no 
one  who  can  be  injured  by  any  credit  which  the  holder  of  the  mort- 
gage may  extend  to  the  bidder  ;  *  and  where  the  premises  have  sub- 
sequently become  incumbered  by  other  liens,  the  holders  of  which 
are  satisfied  to  take  the  notes  of  the  purchaser  at  the  foreclosure 
sale,  the  mortgagee  making  the  sale  may  take  such  notes  in  part 
payment,  as  they  are  equivalent  to  cash,  and  the  taking  of  them 
does  not  prejudice  any  one.^  On  the  contrary,  such  a  course  would 
generally  result  to  the  advantage  of  the  owner  and  of  the  holders  of 
subsequent  liens.^ 

A  power  of  sale  given  to  a  mortg;igee  authorized  him,  in  case  of 
a  default  in  payment  of  the  principal  sum  and  interest,  to  dispose 
of  the  premises  by  public  sale  or  private  contract  for  such  price  as 
could  reasonably  be  obtained  for  them.  Upon  default  the  mort- 
gagee made  a  private  contract  of  sale.  Subsequently,  the  pur- 
chaser not  finding  it  convenient  to  pay  the   money  down,  it  was 

1  Markey  v.  Laiigley,  92  U.  S.  142,   per  ^  Strother  r.  Law,  54  111.  413. 

Mr.  Justice  Swayne.    "  *  Sawyer  v.  Campbell,  130  111.  186,  22  N. 

-  Bailey  i'.  iEtna  Ins.  Co.  10  Allen,  286  ;  E.  Rep.  458  ;  Burr  v.  Borden,  61   111.  389  ; 

Davey  v.  Durrant,  1  De  G.  &  J.  535.     And  Waterman  v.  Spauldinj;,  51  111.  425. 

see  Thurlow  v.  Mackeson,  L.   R.  4   Q.  B.  ^  Mead  i;.  McLaughlin,  42  Mo.  198. 

97  ;  Crenshaw  v.  Seigfried,  24  Gratt.  272 ;  o  Cox  v.  Wheeler,  7  Paige,  248. 
Cox  V.  Wheeler,  7   Paige,  248 ;    Parker  v. 
Banks,  79  N.  C.  480. 

730 


CONDUCT   OF   SALE,   TERMS,   AND  ADJOURNMENT.      [§  1872,  1873. 

agreed  that  the  larger  portion  of  the  purchase-money  should  re- 
main on  a  mortgage  of  the  estate  ;  and  then,  instead  of  convey- 
ing the  estate  to  the  buyer,  the  mortgagee  conveyed  to  a  trustee, 
to  hold  in  the  first  place  as  security  for  the  payment  of  the  pur- 
chase-money. It  was  contended  that  this  was  not  a  good  exercise 
of  the  power,  because  the  purchase-money  was  not  paid  down. 
The  amount  received  was  less  than  the  debt  due  the  mortgagee. 
The  court  held  that  the  power  was  duly  exercised,  and  that  it 
was  immaterial  that  the  contract  of  purchase  was  carried  out  by 
mortgage. 1 

The  sale  is  not  vitiated  by  an  arrangement  made  before  the  sale 
between  the  mortgagee  and  the  purchaser  whereby  the  amount  of 
the  purchaser's  bid  is  to  be  applied  upon  a  debt  due  him  from  the 
mortgagee.^ 

1872.  When  the  mortgagee  is  expressly  authorized  to  sell 
for  cash  or  on  credit,  he  may  do  either  or  combine  both  in  the 
sale ;  and  although  the  terms  of  sale  provide  for  the  payment  of 
one  third  of  the  purchase-money  in  cash,  and  the  balance  in  notes 
secured  by  mortgage  upon  the  same  property,  it  is  competent  for 
the  mortgagee  to  change  the  terms  after  the  property  is  struck  off, 
by  giving  credit  for  a  larger  portion  of  the  purchase-money.  Such 
a  power  is  in  this  respect  without  restriction.^ 

In  Marhey  v.  Langley,  the  mortgagee,  being  authorized  to  sell 
for  cash  or  for  credit,  sold  wholly  upon  credit,  and  took  property  in 
addition  to  that  covered  by  the  original  mortgage  as  security.  On 
account  of  a  great  depreciation  in  value  afterwards,  the  mortgagee 
was  obliged  to  sell  the  property  again,  and  for  a  less  price ;  and  a 
subsequent  incumbrancer  then  claimed  that  the  mortgagee  should 
be  charged  with  a  portion  of  the  nominal  proceeds  of  the  first  sale 
as  cash,  on  the  ground  that  he  was  not  justified  in  selling  for  credit 
wholly.  But  the  court  held  that,  having  authority  to  sell  in  this 
way,  and  having  acted  at  the  time  in  good  faith  and  for  the  benefit 
of  all  concerned,  so  far  as  then  appeared,  he  could  not  be  held  re- 
sponsible for  the  results.* 

When  a  sale  is  properly  made  in  part  for  credit,  interest  con- 
tiimes  to  run  on  the  part  of  the  mortgage  debt  not  satisfied  by  the 
cash  payments,  until  the  purchase-money  is  received.^ 

1873.  Adjournment.  —  The  power  to  a  trustee  or  mortgagee  to 
sell  by  public  auction,  after  a  certain  public  notice  of  the  time  and 

i  Tliurlow  V.  Mackeson,  L.   R.  4  Q.  IJ.        ■*  Markcy  v.  Langley,  92  U.  S.  142. 
97.  *  Markey  v.  Langlcy,  92  U.  S.  142. 

-  Tartt  V.  Clayton,  109  111.  579.  ^  Stanford  v.  Andrews,  12  Heisk.  664. 

781 


§  1873.]        POWER   OF   SALE   MORTGAGES   AND   TRUST   DEEDS. 

place  of  sale,  includes  the  power  to  adjourn  the  sale,  in  the  exercise 
of  a  sound  discretion,  in  order  to  obtain  a  fair  price  for  the  property. 
He  may  adjourn  it  more  than  once.^  Without  such  power  the 
property  might  be  sacrificed  to  the  injury  not  only  of  the  creditor 
but  of  the  debtor  as  well.  As  has  ah-eady  been  seen,  this  power  of 
adjournment  is  held  to  belong  to  sheriffs  and  other  public  officers 
selling  under  judgment  or  decree  of  court.^  "  If  such  a  power," 
says  Mr.  Justice  Curtis,  "is  implied  where  the  law,  acting  in  invi- 
tum,  selects  the  officer,  a  fortiori  it  may  be  presumed  to  be  granted 
to  a  trustee  selected  by  the  parties."  ^ 

It  is  well  settled  that  a  mortgagee  may,  in  the  exercise  of  a 
reasonable  discretion,  adjourn  the  sale  from  time  to  time.^  It  is 
his  duty,  growing  out  of  the  trust  relation  he  occupies  towards  the 
mortgagor  and  all  parties  interested  under  him,  to  get  the  best 
price  he  can,  and  to  take  proper  and  reasonable  means  to  obtain 
the  full  value  of  the  property.  If  he  deems  it  expedient  to  ad- 
journ the  sale  for  the  reason  that  very  few  persons  are  present, 
he  has  the  right  to  do  so.  He  must  act  in  good  faith.  It  often  be- 
comes in  this  way  the  duty  of  the  mortgagee,  or  of  a  trustee  under 
a  deed  of  trust,  to  adjourn  the  sale.^  The  want  of  bidders  ren- 
ders an  adjournment  necessary.  If  a  trustee  finds  that  there  is  no 
bidder  except  the  creditor,  or  only  sham  bidders,  he  should  adjourn 
the  sale.6  But  in  a  case  where  there  were  about  a  dozen  persons 
present,  and  several  of  these  bid  upon  the  property,  it  was  held  that 
the  mortgagee  was  under  no  obligation  to  adjourn  the  sale.'^ 

A  sale  at  which  no  one  is  present  but  the  auctioneer,  who  bids 
off  the  property  for  the  mortgagee,  is  void.  It  is  not  a  legal  auc- 
tion.^  If  the  purchaser  to  whom  the  property  is  struck  off  at  the 
auction  refuses  to  complete  his  purchase,  and  the  hour  of  sale  has 
passed  and  the  bidders  have  departed,  a  resale  cannot  be  made  with- 
out advertising  the  property  anew.^ 

When  an  adjournment  is  made,  it  is  usual  for  the  officer  to  an- 

1  Richards  v.  Holmes,  18  How.  143.  Jefferson  Ins.  Co.  5  Mo.  App.  245 ;  Thomp- 

2  See  chapter  XXXVI ;  Warren  r.  Leland,  son  y.  Hey  wood,  129  Mass.  401;  Biiggs  v. 
9  Mass.  265;  Russell  v.  Richards,  11  Me.  Brigg.s,  135  Mass.  306  ;  Clark  v.  Simmons, 
371,  26  Am.  Dec.  532 ;  Tinkom  v.  Purdy,  5  150  Mass.  357,  23  N.  E.  Rep.  108. 

Johns.  345  ;  Bennett  v.  Brundage,  8  Minn.        ^  Fairfax  v.  Hopkins,  2  Cranch,  134. 
432.  "  Stevenson   v.  Hano,  148  Mass.  616,  20 

3  Richards  v.  Holmes,  18  How.  143.  N.  E.  Rep.  200. 

*  Richards    v.    Holmes,    18    How.    143.  s  Campbellr.  Swan,  48  Barb.  109  ;  Clark 

Dexter  v.  Shepard,  117  Mass.  480  ;  Hosmer  v.  Simmons,  150  Mass.  357,  23  N.  E.  Rep. 

V.  Sargent,  8  Allen,  97,  85  Am.  Dec.  683.  108. 

5  Fairfax   v.    Hopkins,    2    Cranch,    134;  »  Barnard  f.  Duncan,  38  Mo.  170,  90  Am. 

Vail  V.  Jacobs,  62  Mo.  130,  133  ;  Johnston  Dec.  416;  Dover  v.  Kennerly,  38  Mo.  469. 
V.   Eason,  3  Ired.  Eq.  330,  336;  Meyer  v. 
732 


CONDUCT   OF  SALE,    TERMS,   AND   ADJOURNMENT.        [§  1874. 

nounce  to  those  in  attendance  at  the  sale  the  time  and  place  to 
which  tlie  sale  is  adjourned.  The  time  announced  in  this  way  and 
that  afterwards  published  should  agree,  or  the  validity  of  the  sale 
may  be  affected.^ 

1874.  The  notice  of  an  adjournment  of  a  sale,  if  given  at  all, 
need  not  be  so  minute  and  specific  as  the  original  advertisement.^ 
The  adjourned  sale  is  in  effect  the  sale  of  which  the  previous  no- 
tice was  published.  If  the  notice  of  the  adjourned  sale  by  mistake 
fixes  a  different  and  more  distant  day  for  the  sale  than  that  to 
Avhich  the  adjournment  was  actually  made,  and  the  sale  is  actually 
made  upon  the  day  specified  in  such  notice,  it  will  be  irregular  and 
void.^  Whether  publication  of  the  adjournment  is  necessary  de- 
pends upon  the  circumstances  of  the  case,  and  particularly  upon 
the  length  of  time  for  which  the  adjournment  is  made.  But  it 
would  seem  that  the  omission  to  advertise  the  adjournment,  in  any 
case  of  an  adjournment  for  a  reasonable  time,  would  not  avoid  the 
sale.^ 

Failure  to  give  notice  of  adjournment  may,  with  other  circum- 
stances, indicate  bad  faith  or  want  of  reasonable  judgment  in  the  mort- 
gagee. Thus  a  sale  was  held  not  to  have  been  made  in  good  faith 
under  the  following  circumstances :  The  mortgagor,  though  he  had 
requested  that  notice  should  be  given  him  when  any  action  should 
be  taken  looking  to  a  sale,  was  not  informed  of  the  sale  until  late 
in  the  evening  before  it  took  place,  and  then  was  not  informed  of 
the  hour  or  place  of  sale.  The  sale  had  been  adjourned  several 
times,  in  the  absence  of  bidders,  no  one  being  present  other  than 
the  auctioneer  and  an  agent  of  the  mortgagee,  and  no  notice  of 
any  adjournment  having  been  given  except  by  proclamation  made 
at  the  time.  Finally  the  property  was  sold  nearly  three  months 
after  the  time  named  in  the  original  notice  of  sale,  and  was  bid 
in  by  the  mortgagee  for  less  than  its  market  value.  "  We  cannot 
infer,"  say  the  court,  "  that  notice  to  the  mortgagor,  and  a  reason- 
able effort  to  notify  others,  would  have  failed  to  procure  the  at- 
tendance of  bidders  at  the  times  fixed  by  the  adjournments."  ^ 

The  adjournment  should  be  announced  at  the  time  and  place 
appointed  for  the  sale  ;  and  the  time  and  place  of  the  adjourned 

1  Miller  v.  Hull,  4  Denio,  104  ;  Jackson  v.  Allen  v.  Cole,  9  N.  J.  Eq.  286,  59  Am.  Dec. 

Clark,  7  Johns.  217.  416;    Coxe  v.  Halsted,  2   N.  J.    Eq.   311. 

-  Dexter  i;.  Shepard,  117  Mass.  480.  The  last  three  cases  relate  to  foreclosure 

•'  Miller  v.  Hull,  4  Denio,  104.  sales  in  equity. 

*  liosmer  v.  Sargent,  8  Allen,  97,  85  Am.  ^  CAnvk  v.  Simmons,  150  Mass.  357,  23 

Dec.  683;  Stearns  v.   Welsh,  7  Ilun,  676;  N.  E.  Hep.  108. 

733 


§§  1875,  1876.]     POWER  of  sale  mortgages  and  trust  deeds. 

sale  should  be  stated.  It  may  be  made  without  the  agency  of  a 
licensed  auctioneer. 

In  Illinois  it  is  held  that  a  trustee  in  a  deed  of  trust  may  adjourn 
the  sale  in  his  discretion  ;  but  when  he  does  so,  he  must  give  a  new 
notice  for  the  same  length  of  time  required  in  the  first  instance.^ 
In  some  States  it  is  provided  by  statute  that  notice  of  adjournment 
shall  be  given  in  the  same  paper  in  which  the  original  notice  was 
published,  and  by  posting  also.^ 

But  generally  a  sale  under  a  power  may  be  adjourned  to  a  future 
day  without  giving  a  new  notice  for  the  length  of  time  required  for 
the  first  notice.^  After  a  postponement  of  a  sale  has  been  publicly 
announced,  the  mortgagee  cannot  disregard  it,  and  proceed  to  sell 
at  the  time  fixed  in  the  original  notice.  This  would  enable  the 
mortgagee  to  mislead  the  mortgagor,  and  would  confuse  persons 
wishing  to  purchase  as  to  the  time  of  sale.* 

1875.  There  is  no  obligation  to  delay  sale  to  a  more  favor- 
able time.  If  a  mortgagee  sells  openly  and  fairly,  and  in  compli- 
ance with  the  terms  of  the  power,  it  cannot  be  objected  that  he 
might  have  obtained  a  greater  price  by  waiting  until  a  more  favor- 
able time.  No  such  obligation  is  imposed  by  the  mortgage.^  In  a 
case  before  the  Court  of  Appeal  in  Chancery,  in  relation  to  a  sale 
by  private  contract.  Lord  Justice  Knight  Bruce  said  :  "  It  may  be 
that,  by  speculating  and  waiting  a  long  time,  a  larger  sum  would 
thereafter  have  been  obtainable  had  the  sale  not  taken  place  as  it 
did.  But  Mr.  D arrant  (the  mortgagee)  was  not  bound  to  speculate 
or  wait,  and  was  justified  in  accepting  Mr.  Packe's  price,  which 
was,  I  repeat,  in  my  opinion,  a  reasonable  and  fair  price."  ^ 

XI.    Who  may  purchase  at  Sale  under  Power. 

1876.  The  mortgagee  is  not  usually  allowed  to  purchase. 
Being  regarded  as  in  some  respects  a  trustee  of  the  property  mort- 
gaged, as  a  rule  he  cannot  himself  become  a  purchaser  at  the  sale, 
either  directly  or  indirectly  through  another  person,  unless  this  right 

1  Giiffin  !'.  Marine  Co.  52111. 130;  Thorn-    Brundage,  8  Minn.  432;   Sayles  v.   Smith, 
ton  V.  Boyden,  31  111.  200.  12  Wend.  57,  27  Am.  Dec.  117;  Westgate 

2  See  Statutory  Provisions  for  Michigan :    v.  Handlin,  7  How.  Pr.  372. 

§  1741.  ■♦  Jackson  v.  Clark,  7  Johns.  217.     The 

Minnesota  :    §    1743.      See    Sanborn    v.  postponement  was  published  under  the  ori- 

Pettes,  35  Minn.  449,  for  a  case  of  insuffi-  ginal  notice  as  follows:    "Note,  the  sale  of 

cient  advertisement  of  an  adjournment.  the  above  property  is  postponed  to  Wednes- 

New  York  :  §  1751.  day,  the  3d  day  of  September  next." 

Wisconsin  :  §  1762.  &  Franklin  v.  Greene,  2  Allen,  519. 

3  Jackson  i'.  Clark,  7  Johns.  217 ;  Dana  «  Davey  v.  Durrant,  1  De  G.  &  J.  535. 
V.   Tarrington,   4   Minn.   433  ;    Bennett  v. 

734 


WHO   MAY   PURCHASE    AT   SALE   UNDER   POWER.  [§  1876. 

be  given  him  by  the  terms  of  the  power.^  He  is  bound  to  exercise 
entire  good  faith  ;  and  if,  without  express  authority  given  him  so  to 
do,  he  becomes  the  purchaser  at  the  sale,  he  is  subject  to  the  rule 
which  applies  generally  to  a  trustee  and  prohibits  his  purchasing 
the  trust  property .^  The  rule  applies  equally  to  a  purchase  by  a 
third  person  for  the  benefit  of  the  mortgagee.^ 

If  the  mortgagee  or  trustee,  when  not  authorized,  purchases  at  the 
sale,  the  mortgagor  or  any  other  person  interested  under  him  may 
disaffirm  the  sale,  provided  he  acts  within  a  reasonable  time.*  Such 
a  sale  is  voidable  only,  and  cannot  be  treated  in  a  suit  at  law  as  ab- 
solutely void,  unless  actual  fraud  be  shown  ;  ^  and,  being  good  till  it 
is  set  aside,  will  support  an  action  of  ejectment.*'  The  sale  can  be 
disaffirmed  only  in  a  court  of  equity.'     A  beneficiary  under  the  trust, 


^  Downes  v.  Grazebrook,  3  Mer.  200 ; 
In  re  Bloye's  Trust,  1  Mac.  &  G.  488  ;  Lock- 
ett  V.  Hill,  1  Woods,  552;  Griffiu  v.  Marine 
Co.  of  Chicago,  52  III.  130;  Waite  v.  Den- 
nison,  51  111.  319;  Phares  v.  Barbour,  49 
111.  370;  Roberts  v.  Fleming,  53  111.  196; 
Koss  V.  Demoss,  45  III.  447  ;  Hall  v.  Tovvne, 
45  111.  493  ;  Watson  v.  Sherman,  84  111.  263; 
Ezzel  V.  Watson,  83  Ala.  120,  3  So.  Rep. 
309  ;  Garland  v.  Watson,  74  Ala.  323  ;  Mc- 
Lean V.  Presley,  56  Ala.  211;  Howell  v. 
Pool,  92  N.  C.  450;  Thomas  v.  Jones,  84 
Ala.  302,  4  So.  Rep.  270;  Very  v.  Russell, 
65  N.  H.  646,  23  Atl.  Rep.  522.' 

2  Michoucl  V.  Girod,  4  How.  503  ;  Par- 
menter  v.  Walker,  9  R.I.  225;  Korus  v. 
Shaffer,  27  Md.  83;  Howard  v.  Ames,  3 
Met.  308;  Hyndman  v.  Hyndman,  19  Vt. 
9,  46  Am.  Dec.  171;  Benham  t-.  Rowe,  2 
Cal.  387,  56  Am.  Dec.  342;  Rutherford  v. 
Williams,  42  Mo.  18  ;  Whitehead  i-.  Hellen, 
76  N.  C.  99  ;  Kornegay  v.  Spicer,  76  N.  C. 
95;  Robinson  y.  Amateur  Asso.  14  S.  C. 
148. 

3  Nichols  V.  Otto,  132  111.  91,  23  N.  E. 
Rep.  411  ;  Harper  v.  Ely,  56  III.  179  ;  Lock- 
wood  V.  Mills,  39  111.  602;  Miles  i'.  Wheeler, 
43  111.  123;  Hamilton  v.  Lubukee,  51  111. 
415;  Tipton  v.  Wortham,  93  Ala.  321,  9 
So.  Rep.  596  ;  Averilt  v.  Elliot,  109  N.  C. 
560,  13  S.  E.  Rep.  785  ;  Joyner  v.  Farmer, 
78  N.  C.  196. 

*  Munn  V.  Hurges,  70  111.  604  ;  Farrar  v. 
Payne,  73  111.  82  ;  Johnson  v.  Watson,  87 
111.535;  Thornton  v.  Irwin,  43  Mo.  153; 
Allen  V.  Ran.son,  44  Mo.  263,  100  Am.  Dec. 
282 ;    McCall  v.  Mash,  89  Ala.  487,  7   So. 


Rep.  770;  McLean  v.  Presley,  56  Ala.  211  ; 
Harris  v.  Miller,  71  Ala.  26 ;  Adams  v. 
Say  re,  70  Ala.  318  ;  Downs  v.  Hopkins,  65 
Ala.  508 ;  Thomas  v.  Jones,  84  Ala.  302, 
4  So.  Rep.  270 ;  Dozier  v.  Mitchell,  65  Ala. 
511;  Ezzel  v.  Watson,  83  Ala.  120,  3  So. 
Rep.  309  ;  Garland  v.  Watson,  74  Ala.  323  ; 
Helm  V.  Yerger,  61  Miss.  44 ;  Dawkins  v. 
Patterson,  87  N.  C.384;  Joyner  y.  Farmer, 
78  N.  C.  196. 

The  mortgagee  in  such  case  stands  in  the 
relation  of  a  trustee  who  has  obtained  au 
advantage  over  his  cestui  que  trust,  and,  out 
of  great  caution,  a  court  of  equity  permits 
tlie  cestui  que  trust  to  elect  within  a  reason- 
able time  whether  he  will  disaffirm  the  sale. 
In  Alabama  the  mortgagee  may  compel  the 
mortgagor  to  elect  to  affirm  or  disaffirm  the 
sale.  American  Mortg.  Co.  v.  Sewell,  92 
Ala.  163,9  So.  Rep.  143. 

As  to  reasonable  time,  see  §  1922. 

5  Patten  i-.  Pearson,  57  Me.  428;  Burns 
V.  Thayer,  115  Mass.  89;  Nichols  v.  Otto, 
132  III.  91,  23  N.  E.  Rep.  411  ;  Muhey  v. 
Gibbons,  87  III.  367  ;  Munn  v.  Burges,  70 
III.  604;  Gibbons  v.  Hoag,  95  111.  45;  Con- 
nolly f.  Hammond,  51  Tex.  635;  Jenkins 
V.  Pierce,  98  111.  646;  Ezzel  v.  Watscu,  83 
Ala.  120, 3  So.  Rep.  309;  Harris  i\  Miller,  71 
Ala.  26  ;  Avcritt  v.  Elliot,  109  N.  C.  560,  13 
S.  E.  Rep.  785  ;  Joyuer  v.  Farmer,  78  N.  C. 
196. 

•^  Hawkins  v.  Hudson,  45  Ala.  482.  See 
Whitehead  v.  Hellen,  76  N.  C.  99,  a  wrong 
decision. 

7  Harris  v.  Miller,  71  Ala.  26. 

735 


§  1876.]        POWER    OF   SALE    MORTGAGES   AND    TRUST   DEEDS. 

or  a  mortgagee  who  becomes  a  purchaser,  is  regarded  only  as  a  mort- 
gagee in  possession  in  consequence  of  the  sale  and  conveyance,  but 
is  entitled  to  be  treated  as  the  owner  of  the  property  until  it  is  re- 
deemed.^ If  the  mortgagor  does  not  claim  his  right  to  avoid  such 
a  sale,  the  mortgagee  may  himself  come  into  equity  to  have  the  un- 
certainty of  his  title  removed  by  a  confirmation  of  the  sale,  or  by  a 
resale  under  order  of  court.^  But  if  the  mortgiigee,  after  indirectly 
becoming  the  purchaser,  sells  a  portion  of  the  premises  to  one  who 
has  no  notice  of  any  defect  in  the  proceedings,  the  mortgagee  can- 
not have  the  sale  set  aside  as  against  such  purchaser.^ 

The  pledgee  of  a  mortgage,  upon  selling  the  property  under  a 
power  of  sale  in  satisfaction  of  the  pledgor's  debt,  cannot  become 
the  purchaser  at  the  sale.  In  reference  to  the  pledge  and  the 
pledgor  he  occupies  a  fiduciary  relation,  and  is  in  the  position  of  a 
trustee,  whose  duty  it  is  to  exercise  his  right  of  sale  for  the  benefit 
of  the  pledgor.* 

Where  the  notes  have  been  transferred  by  the  payee  to  a  firm  of 
which  he  is  a  member,  all  the  members  of  the  firm  are  equally  pro- 
hibited from  purchasing  at  the  sale.^  But  a  mortgagee  may  pur- 
chase an  outstanding  title,  or  the  equity  of  redemption,  either  from 
the  mortgagor  or  from  his  grantee,  and  hold  the  title  absolutely  in 
liis  own  riglit.  He  may  purchase  under  a  judgment  of  prior  date 
to  the  mortgage. ^  But  if  the  purchase  be  aided  by  the  mortgagor, 
or  he  be  fraudulently  prevented  by  the  mortgagee  from  purchasing 
himself,  and  the  mortgagee  has  taken  advantage  of  his  position,  he 
will  hold  the  title  acquired  for  the  benefit  of  the  mortgagor  as  his 
trustee." 

The  mortgagee  may  also  purchase  from  the  mortgagor,  unless  the 
mortgagee  uses  his  position  to  obtain  the  equity  of  redemption  at 
an  inadequate  price. ^  As  between  mortgagee  and  mortgagor,  there 
is  nothing  analogous  to  a  trust  until  the  whole  mortgage  debt  has 
been  paid  and  satisfied  ;  from  which  moment,  and  not  until  then, 
the  mortsagee  becomes  a  trustee  for  the  mortfjaoror.^ 

When  a  tliird  person  has  in  good  faith  purchased  at  the  mortgage 
sale,  the  mortgagee  may  purchase  of  him.     His  trust  is  ended  with 

1  GoMsmith  v.  Osborne,  1  Echv.  Ch.  560,  5  Mappsi>.  Sharpe,  32  111.  13. 

562;  Rutherford  r.  Williams,  42  Mo.  18.  ^  Roberts?;.  Fleming,  53  111.   196;  Har- 

■^  McLean  v.  Presley,  56  Ala.  211;  Har-  risen   v.  Roberts,  6  Fla.  711;    Waltliall  v. 

ris  V.  Miller,  71  Ala.  26  ;  Craddock  v.  Am.  Rives,  34  Ala.  91. 

Mort.  Co.  88  Ala.  281,  7  So.  Rep.  196.  ^  Griffin  v.  Marine  Co.  52  111.  130. 

3  Gibbons  v.  Hoag,95  III.  45.  »  pord  v.  Olden,  L.   R.  3  Eq.  461,  36  L. 

4  Callan  v.  Wilson,  127  U.  S.  540,  8  Sup.  J.  C.  651. 

Ct.  Rep.  1301,  per  Matthews,  J.  ^  Per   Wood,    V.    C,    in    Kirkwood    v. 

Thompson,  2  Hem.  &  M.  392. 
736 


WHO   MAY   PURCHASE   AT    SALE   UNDER   POWER.        [§  1876  «,  1877. 

the  sale.^  If  a  third  person  bids  off  the  land  at  the  sale,  and  after- 
wards informs  the  mortgagee  that  he  cannot  pay  the  purchase-money, 
whereupon  the  mortgagee  agrees  to  take  the  land  at  the  bid,  but 
there  was  no  arrangement  whatever  between  him  and  the  purchaser 
at  the  time  of  the  sale,  the  mortgagee  is  not  a  purchaser  at  his  own 
sale,  and  hence  the  sale  is  effectual  to  cut  off  the  equity  of  redemp- 
tion.2  But  if  there  was  a  previous  arrangement  between  him  and 
the  purchaser  for  a  reconveyance,  the  trust  may  still  attach  to  him, 
and  the  title  he  has  acquired  will  be  voidable.^  The  presumption 
is  in  favor  of  the  mortgagee  that  he  has  fulfilled  his  trust  until  the 
contrary  is  shown. 

1876  a.  If  the  mortgagor  or  the  owner  of  the  equity  of  re- 
demption elects  to  disaffirm  the  sale,  and  brings  a  bill  for  this 
purpose  within  a  reasonable  time,  he  must  offer  to  redeem,  or  must 
tender  what  is  due  upon  the  mortgage.  A  bill  which  merely  asks 
to  have  the  sale  set  aside  is  insufficient.^  In  suit  to  redeem  from 
such  trust  deed,  the  grantor  should  pay  the  debt  and  interest,  with 
taxes  paid  and  necessary  repairs  made  by  such  purchaser,  and  the 
cost  of  improvements  authorized  by  him,  and  is  entitled  to  credit  for 
the  reasonable  rents  and  profits  of  the  land.  He  is  not  chargeable 
with  the  cost  of  the  invalid  sale.^ 

The  mortgagor  or  owner  of  the  equity  of  redemption  must  exer- 
cise the  right  of  disaffirming  the  sale  himself ;  he  cannot  convey 
this  right  to  another  so  as  to  authorize  him  to  disaffirm  it.^ 

Only  the  mortgagor  or  the  owner  of  the  equity  of  redemption  can 
avoid  the  sale  on  the  ground  that  the  mortgagee  or  his  assignee  has 
become  the  purchaser  at  his  own  sale.  Such  a  sale  is  valid  as  to  all 
other  parties.'  A  purchaser  under  an  execution  sale  subject  to  a 
prior  mortgage  cannot  object  that  the  mortgagee  became  the  pur- 
chaser at  his  own  sale.^  A  mortgagee's  purchase  at  his  own  sale  is 
binding  upon  him  when  the  price  is  reasonable,  and  no  exception 
is  taken  by  the  parties  in  interest.^ 

1877.  It  is  not  necessary  in  order  to  avoid  the  sale  to  sho"w 

1  Watson   V.   Sherman,  84  111.263.     See  «  McCall  t;.  Mash,  89  Ala.  487, 7  So.  Rep. 

§  1880.  770. 

-  Durden  v.  Wlietstone,  92  Ala.  480,  9  ^  Comer  v.  Sheehan,  74  Ala.  4.52,  4.58 ; 

So.  Kep.  176.  Cooper  v.  Hornsby,  71  Ala.  62,  65;  Harris 

3  Munu  I'.  Surges,  70  111.  604;  Bush  v.  v.  Miller,  71  Ala.  26. 

Sherman,  80  111.  160;  Holt  v.  Russell,  56  8  Martinez  v.  Lindsey,  91  Ala.  .')34,  8  So. 

N.  H.  559;  Whitehead  v.  Hellen,  76  N.  C.  Rep.  787. 

99.  »  Whitehead   v.   Whitchurst,   108   N.  C, 

*  Garland  v.  Watson,  74  Ala.  313.  458,  13  S.  E.  Rep.  166. 

6  Stallings  v.  Thomas,  55   Ark.  326,  18 
S.  W.  Rep.  184. 

VOL.  II.              47  737 


§§  1878,  1879.]     POWER  of  sale  mortgages  and  trust  deeds. 

that  there  was  any  actual  fraud  or  unfairness  in  the  transaction, 
when  a  mortgagee  has  violated  the  principle  that  a  trustee  can  never 
be  a  purchaser.  There  inight  be  fraud  or  unfairness,  and  yet  this 
could  not  be  proved.  To  guard  against  this  uncertainty,  and  to 
place  the  trustee  beyond  the  reach  of  temptation,  the  law  allows 
the  cestui  que  trust  to  set  aside  such  a  sale  at  his  option  without 
showing  that  he  has  been  in  any  way  injured.  A  mortgage  with  a 
power  of  sale  confers  a  trust  coupled  with  an  interest,  but  the  rule 
applies  with  the  same  force  as  in  the  case  of  a  naked  trust.  With- 
out the  agreement  or  consent  of  the  mortgagor  he  can  acquire  no 
title  by  a  purchase,  directl}^  or  indirectly,  at  his  own  sale  under  the 
power.i 

1878.  The  rule  applies  equally  to  the  mortgagee's  solicitor. 
If  the  power  of  sale  does  not  give  to  the  mortgagee  any  right  to 
purchase,  his  solicitor  or  agent  is,  equally  with  himself,  disabled 
from  becoming  the  purchaser  of  the  property  either  for  himself  or 
for  another.  The  mortgagee  in  such  case  occupies  a  fiduciary  re- 
lation to  others,  and  his  solicitor  who  conducts  the  sale  stands  in 
the  same  position  he  does  as  regards  a  purchase  of  the  property .^ 
He  is  bound  by  the  same  obligations  to  secure  the  best  possible  re- 
sults, regardless  of  the  interest  of  all  other  persons  except  the  mort- 
gagor and  mortgagee.  Neither  can  he  act  for  a  third  party  having 
a  different  interest,  in  nowise  identical  with  the  interest  of  those  for 
whom  he  is  first  bound  to  act.  By  reason  of  his  relations  to  the 
mortgagee  he  is  bound  to  get  the  highest  price  ;  and  if  he  act  for 
another  person  in  buying,  he  is  bound  to  obtain  the  property  at  as 
low  a  price  as  he  can.  These  characters  are  utterly  inconsistent, 
and  the  policy  of  the  law  does  not  allow  them  to  be  united  in  the 
same  person.^  Even  the  employment  by  a  purchaser  of  a  clerk  of 
the  mortgagee's  solicitor  to  bid  for  him  at  the  sale  is  sufficient  to 
invalidate  it.^ 

1879.  Mortgagee's  agent.  —  Doubts  were  at  first  expressed 
whether  one  who  has  acted  as  the  agent  of  the  mortgagee  in  survey- 

1  Thornton  v.  Irwin,  43  Mo.  153  ;  Ruth-  called  for."     See,  also,  on  the  general  sub- 

erford  u.  Williams,  42  Mo.  18;  Blockley  y.  ject,   Orme   v.   Wright,   3   Jur.    19;    York 

Fowler,  21  Cal.  326,  82  Am.  Dec.  747.  Buildings  Co.  v.  Mackenzie,  8  Brown  Pari. 

^  "Perhaps  he  is  upon  principle  the  indi-  Cas.   App.  42;  Downes  v.  Grazebrooke,  3 

vidual  of   all  others    disabled,"  said   Lord  Mer.  200,  209  ;  Pox  v.  Mackreth,  2  Bro.  C. 

Eldon    in  Ex  parte  Bennett,    10  Ves.  381,  C.  400  ;  Whitcomb  v.  Minchin,  .5  Madd.  91  ; 

385.     "  As  to  the  solicitor,"  says  the  same  Gardner  v.  Ogden,  22  N.  Y.  327,  78  Am. 

judge.  Ex  parte   James,  8  Ves.  337,    346,  Dec.  192;  Campbell  v.  Swan,  48  Barb.  109. 

"if    there    is    any  utility    in  applying   the  ^  Dyer   i'.    Shurtleff,   112  Mass.  165,   17 

principle  against  the  assignee,  the   applica-  Am.  Rep.  77. 

tion  as  against  the  solicitor  is  more  loudly  *  Parnell  v.  Tyler,  2  L.  J.  Ch.  N.  S.  195. 

738 


WHO   MAY    PURCHASE    AT    SALE   UNDER    POWER.         [§  1880. 

ing  the  property,  advancing  the  money,  and  receiving  the  interest, 
is  a  competent  purchaser  under  tUe  power  ;  but  on  appeal  the  Chan- 
cellor expressly  held  that  he  could  not  purchase.^  For  stronger 
reasons,  one  who  has  acted  for  the  mortgagee  in  advertising  the 
property  and  in  making  the  sale  cannot  properly  purchase  at  the 
sale. 2  But,  like  a  purchase  by  a  mortgagee,  a  purchase  by  his  agent 
is  voidable  only  and  not  void.-^ 

When,  however,  the  mortgagee  is  authorized  by  the  deed  to  pur- 
chase at  the  sale,  he  may  properly  arrange  beforehand  with  a  third 
person  to  bid  a  sum  not  less  than  the  amount  of  the  mortgage  and 
the  incidental  expenses,  as  such  an  arrangement  has  no  tendency  to 
prevent  competition  at  the  sale,  or  to  depreciate  the  price,  but  on 
the  contrary  makes  it  certain  that  the  sale  will  at  least  pay  the 
mortgage  debt.*  Nor  does  the  fact  that  the  mortgagee  purchased 
the  property  through  an  agent  at  the  sale  for  less  than  its  value,  no 
other  bidders  being  present,  make  the  sale  invalid.^  Under  an  au- 
thorization to  the  mortgagee  to  become  the  purchaser  at  the  sale, 
another  may  purchase,  and  receive  a  conveyance,  as  trustee  for  the 
mortgagee.'^ 

Whether  a  person  authorized  by  a  mortgagee  to  sell  a  mortgaged 
estate  under  a  power  of  sale  has  authority  to  purchase  the  estate  for 
the  mortgagee,  where  there  is  no  express  written  authority  for  this 
purpose  and  the  testimony  is  conflicting,  is  a  question  of  fact  for 
the  jury .7 

1880.  Under  the  same  rule,  a  trustee  in  a  deed  of  trust  cannot 
buy  for  his  own  benefit  at  the  trust  sale.^  The  trustee  is  the  repre- 
sentative not  only  of  the  owner  of  the  debt,  but  also  of  the  owner 
of  the  land ;  not  onl}'  of  the  creditor,  but  of  the  debtor ;  and  it  is 
his  duty  to  act  for  the  interest  of  both,  and  not  exclusively  in  the 
interest  of  either.^  But  the  mere  fact  that  the  trustee,  after  a  sale 
by  him  to  a  third  person,  purchased  the  premises  of  him,  does  not 
vitiate  the  original  sale.^*^  "  Whether  culpable  or  commendable  de- 
pends upon  the  circumstances  of  each  case.     It  may  be  wrong,  and 

1  Orme  v.  Wripht,  3  Jur.  19,  972.  ^  Learned  v.  Geer,  139  Mass.  31,29  N.  E. 

-  Hoitw.  Russell,  56  N.  H,  559.  Rep.  215.     And  see  Wing  v.  Ha}  ford,  124 

■'  Adams  v.  Sayre,  76  Ala.  509  ;  Gibson  Mass.  249;  King  y.  Bronson,122  Mass.  122. 

V.  Barber,  100  N.  C.  192,  6  S.  E.  Rep.  766  ;  «  Gamble  t;.  Caldwell  (Ala.)  12  So.  Rep. 

Martin  v.  McNeely,  101  N.  C.  634,8  S.  E.  424. 

Rep.  231.  ^  Hood  v.  Adams,  128  Mass.  207. 

*  Dexter  v.  Shepard,  117  Muss.  480.  ^  Lass  v.  Sternberg,  50  Mo.  124  ;  Stephen 

The  purchaser  in  such  case,  after  taking  v.  Bcall,  22  Wall.  329,  340. 

a  deed  in  hisown  name,  holds  in  trust  for  "  Williamson  v.   Stone,  128  111.   129,  22 

the  mortgage  creditor.     Byrnes  i;.  Morris,  N.  E.  Rep.  1005. 

53  Tex.  213.  i^  Stephen  v.  Beall,  22  Wall.  329. 

739 


§  1881.]        POWER   OF   SALE   MORTGAGES   AND    TRUST    DEEDS. 

it  may  be  right.  It  may  be  approved  by  the  parties  interested  and 
affirmed.  It  may  be  condemned  %  them  and  avoided.  When  it  is 
found  that  the  transaction  is  itself  fair  and  honest,  that  the  purchase 
was  not  contemplated  at  the  original  sale,  but  was  first  thought  of 
years  afterwards,  and  was  then  made  for  a  full  and  fair  consideration 
Actually  paid  by  the  trustee,  and  after  the  fiduciary  duty  was  at  an 
«nd,  we  find  no  authority  to  justify  us  in  pronouncing  the  original 
sale  to  have  been  fraudulent."  ^  If  a  trustee  buys  in  a  prior  mort- 
gage he  will  hold  it  for  the  benefit  of  his  cestui  que  trusty  upon  being 
reimbursed  the  amount  he  has  fairly  paid  for  it.^ 

The  objection  to  a  purchase  by  the  trustee  applies  as  well  to  a 
purchase  by  his  attorney  in  the  interest  of  the  creditor.^  But  the 
fact  that  the  representative  of  the  trustee,  in  the  matters  of  adver- 
tising and  selling  the  land,  bids  in  behalf  of  a  prospective  purchaser, 
does  not  incapacitate  him  from  making  the  sale.* 

But  the  objection  to  a  purchase  by  a  trustee  at  his  own  sale 
does  not  apply  so  as  to  prevent  a  purchase  by  a  beneficiary  under 
the  trust  deed.^  The  legal  title  is  in  the  trustee,  and  the  duty  of 
exei'cising  the  power  of  sale  fairly  rests  upon  him,  and  not  upon 
the  creditor  secured.  "  The  relation  of  a  creditor  secured  by  such 
deed  of  trust  to  a  sale  made  under  a  power  to  a  stranger  as  trus- 
tee, does  not  differ  from  that  of  a  mortgagee  of  real  estate  sold  un- 
der judicial  proceedings  for  foreclosure  by  a  decree  of  a  court  of 
equity."  ^ 

1881.  Perhaps  there  is  less  strictness  in  applying  the  rule 
to  the  case  of  a  mortgagee  purchasing  at  his  own  sale  under  the 
power  than  there  is  in  the  case  of  a  trustee  purchasing.  The  mort- 
gagee in  such  case  is  not  merely  a  trustee,  but  he  is  also  a  cestui 
que  trust,  and  if  he  were  not  allowed  to  become  a  purchaser  under 
any   circumstances   his   security   might   become   greatly  impaired.' 

1  Mr.  Justice  Hunt  in  Stepheu  v.  Beall,  if  the  property  is  bouglit  by  the  cestui  que 
22  Wall.  329.     See  §  1876.  trust  or  his  assignee,  or  by  any  other  person 

2  Crutchfield  v.  Hayne.s,  14  Ala.  49  ;  for  him,  the  grantor  may  redeem,  provided 
Gunter  v.  Janes,  9  Cal.  643.  he  gives  security  for  the  payment  of  the 

3  Williamson  v.  Stone,  128  111.  129,22  interest  to  accrue  after  the  sale,  and  for  all 
N.  E.  Rep.  1005.  damages  and  waste  that  may  be  occasioned. 

<  Dunton  v.  Sharpc,  70  Miss.  850,  12  So.  R.  S.  §§  3298,  3299;  Johnson  v.  Atchison, 

Rep.  800.  90  Mo.  48. 

5  Easton  v.  German-American  Bank,  127  "In  Bergen  v.  Bennett,  1  Caines  Cas.  1, 
U.  S.  538,  8  Sup.  Ct.  Rep.  1297  ;  Felton  v.  19,  Judge  Kent  said:  "It  has  also  been 
Le  Breton,  92  Cal.  457,  28  Rac.  Rep.  490.  made  a  question,  whether  the  rule  would 

6  Easton  v.  German-American  Bank,  127  apply  to  the  case  of  a  trustee  who  was  him- 
U.  S.  538,  8  Sup.  Ct.  Rep.  1297,  per  Mat-  self  a  cestui  que  trust,  and  was  obliged  to 
thews,  J.  purchase  in  order  to  avoid  a  loss  to  himself 

In  Missouri  it  is  provided  by  statute  that    by  a  sale  at  a  less  price."     But  he  forbore 

740 


WHO   MAY   PURCHASE   AT   SALE   UNDER   POWER.  [§  1882. 

Accordingly  it  has  been  held  that  where  such  a  purchase  is  made 
with  the  knowledge  and  consent  of  the  mortgagor,  in  the  absence 
of  all  suspicion  of  fraud,  it  is  good  and  valid.^  At  any  rate  the 
'mortgagor  would  not  be  allowed  to  avoid  the  sale  after  waiting  sev- 
eral years.2  The  purchase  being  made  with  the  mortgagor's  con- 
sent is  the  same  thing  in  effect  as  a  conveyance  of  the  equity  by 
the  mortgagor  to  the  mortgagee  at  a  private  sale. 

When  the  creditor  or  his  agent  buys  at  a  trustee's  sale  no  objec- 
tion to  the  sale  can  be  taken  because  the  purchase-money  is  not 
actually  paid  to  the  trustee.  It  would  be  an  idle  ceremony  to  pay 
over  the  money  and  immediately  receive  it  back  again.^ 

1882.  "When  the  sale  is  made  by  judicial  process,  there  is 
usually  no  restraint  upon  the  purchase  of  the  property  by  the 
mortgage  creditor.*  The  sale  is  in  such  case  made  by  a  sheriff  or 
other  officer  appointed  by  the  court  or  designated  by  law,  and  the 
creditor  is  not  himself  the  seller.  The  case  is  just  the  ^ame  as 
that  of  a  sale  upon  an  ordinary  execution  at  which  the  judgment 
creditor  has  full  liberty  to  buy.^  And  so  also  in  those  States  in 
which  there  are  statutes  which  regulate  all  sales  under  powers  in 
mortgages,  prescribing  in  detail  the  notices  that  must  be  given,  and 
specifically  providing  for  the  conduct  of  the  sale,  which  is  made  by 
a  public  officer,  there  is  not  the  same  objection  to  the  mortgagee's 
becoming  the  purchaser,  and  therefore  these  statutes  generally  pro- 
vide also  that  the  mortgagee  may  fairly  and  in  good  faith  purchase 
the  whole  or  any  part  of  the  property.^ 

The  mortgagee  may  purchase  at  a  sale  under  a  power  that  runs 
to  himself,  if  the  sale  is  made  in  good  faith  by  the  sheriff  in  ac- 
cordance with  the  statute ; ''  but  not  if  his  own  agent  acts  as  auc- 
tioneer and  makes  the  certificate  and  affidavit  of  sale.^ 

Under  a  trust  deed,  when  the  sale  is  made  by  a  disinterested 
trustee,  the  beneficiary  may  ordinarily  purchase.  The  holder  of 
a  note  secured  by  a  trust  deed  may  buy  at  the  sale.  He  may  leave 
a  bid  with  the  auctioneer,  and  the  purchase  under  it  will  be  valid 

to  express  any  opinion  whether  the  distinc-  ^  Stratford  v.  Twynam,  Jac.  418. 

tion    was    well  taken   or   not.      See,   also,  "  As  in  New  York :  §  1751. 

Hyde  v.  Warren,  40  Miss.  13,  29.  Michigan  :  §  1741. 

1  Dohson  V.  Racey,  8  N.  Y.  216.  Wisconsin:  §  1762;  Maxwell  v.  Newton, 

'■^  Medsker  i'.  Swaney,  45  Mo.  273  ;  Ber-  C")  Wis.  261. 

gen  V.  Bennett,  1   Caines  Cas.  1,  19,  2  Am.  Illinois:  §  1733. 

Dec.  281.  Minnesota:  §  1743. 

3  Weld  V.  Bees,  48  111.  428.     And  see  Rhode  Island :  §  1756. 

Jacobs   V.   Turpin,   83    111.   424;    Beal    v.  ''  Bamsey  n.  Merriiim,  G  Minn.  168. 

Blair,  33  Iowa,  318.  8  Allen  v.  Chatlicld,  8  Minn.  435. 

*  As  in  Maryland :  §  1740. 

741 


§  1883.]        POWER    OF   SALE   MORTGAGES   AND   TRUST   DEEDS. 

if  it  is  the  highest  that  can  be  obtained ;  ^  but  if  there  is  any  un- 
fairness on  his  part,  such  as  a  representation  at  the  sale  that  the 
morterao-or  wouhl  have  a  right  to  redeem  from  the  sale  within  twelve 
months,  when  there  is  no  such  right  of  redemption,  aud  the  prop-* 
erty  in  consequence  brings  only  about  half  its  value,  it  will  be  held 
that  the  sale  may  be  avoided.^ 

In  Missouri,  however,  it  is  held  that  where  the  mortgage  pro- 
vides for  a  sale  by  the  mortgagee,  or,  in  case  of  his  refusal  to  act, 
by  the  marshal,  they  are  for  the  purposes  of  the  sale  co-trustees, 
and  the  mortgagee  cannot,  by  refusing  to  make  the  sale,  relieve 
himself  of  his  disability  to  purchase  at  the  sale  by  the  marshal.^ 

In  New  York  the  mortgagee  by  statute  is  allowed  to  purchase  at 
the  sale ;  *  but,  independently  of  the  statute,  it  was  there  held  that 
he  had  a  perfect  right  to  purchase  at  his  own  sale.^  He  is  not  there 
regarded  as  occupying  a  fiduciary  relation  to  the  mortgagor.  The 
foreclosure  and  sale,  when  the  mortgagee  becomes  the  purchaser, 
is  as  complete  a  bar  of  the  equity  of  redemption  as  when  any  one 
else  becomes  the  purchaser.^  An  agent  may  bid  for  him  at  the  sale 
without  disclosing  the  fact  of  the  agency ;  and  this  is  no  fraud  on 
other  bidders,  as  he  has  a  right  to  buy,  and  would  be  bound  to  take 
the  property  if  struck  off  to  him.'^ 

In  Mississippi  the  court  in  a  recent  case  cited  cases  in  which  this 
right  was  said  to  be  recognized,  but  gave  no  opinion  upon  it.^ 

In  Texas  it  is  held  that  the  mortgagee  may  purchase  at  his  own 
sale  upon  a  power,  if  there  be  no  unfairness  in  it.  It  is  declared  to 
be  for  the  interest  of  the  mortgagor  that  the  mortgagee  should 
enter  into  competition  at  the  sale.  The  sale,  being  open  and  made 
after  proper  publication  of  notice,  should  not  be  impeached  though 
made  to  the  mortgagee.^  His  deed  as  trustee  to  himself  as  pur- 
chaser passes  the  legal  title.^^ 

1883.  A  provision  in  express  terms  that  the  mortgagee  may- 
purchase  is  usually  found  in  the  mortgage  deed  where  power  of 
sale  mortgages  are  in  general  use,  and  there  is  no  statute  authoriz- 

1  Richards  v.  Holmes,  18  How.  143;  Paige,  48;  Casserly  v.  Witherbee,  119  N. 
Smith  V.   Black,  115  U.  S.  308,  6  Sup.  Ct.    Y.  522,  23  N.  E.  Rep.  1000. 

Rep.  50 ;  Felton  v.  Le  Breton,  92  Cal.  457,  ^  Lansing  v.  Goelet,  9  Cow.  346. 

28  Pac.  Rep.  490,  per  Harrison,  J.  "^  National  Fire  Ins.  Co.    v.  Loomis,  11 

2  Bloom  V.  Van  Rensselaer,  15  111.  503.  Paige,  431. 

3  Gaines  v.  Allen,  58  Mo.  537.  «  jjyde  i-.  Warren,  46  Miss.  13. 

*  3  R.  S.  6th  ed.  847,  §  7.  ^  Howards  v.   Davis,  6  Tex.  174;  Con- 

5  Elliott  V.  Wood,  53  Barb.  285,  affirmed  nolly  v.  Hammond,  51   Tex.  635;  Bohn  v. 

45  N.  Y.   71 ;  Hubbell  v.   Sibley,  5  Lans.  Davis,  75  Tex.  24,  12  S.  W.  Rep.  837. 

51 ;  Bergen  v.  Bennett,  1  Caines  Cas.  1,  2  i"  Marsh  v.  Hubbard,  50  Tex.  203. 

Am.  Dec.  281 ;    Slee  v.  Manhattan  Co.  1 

742 


WHO   MAY    PURCHASE   AT   SALE   UNDER   POWER.         [§  1883. 

ing  the  mortgagee  to  purchase  at  his  sale  under  tlie  power.  It  has 
sometimes  been  declared  that  this  privilege  should  be  strictly  con- 
strued and  should  not  be  favored  ;  ^  but  it  is  generally  held  that 
under  such  a  provision  the  court  will  not  interfere  with  a  purchase 
by  the  mortgagee  unless  there  be  some  other  objection  which  would 
invalidate  a  purchase  by  any  one  else  under  the  same  circumstances.^ 
The  right  of  the  mortgagee  to  purchase  under  such  a  provision  is 
fully  sustained  by  the  courts.  Lord  Eldon  clearly  intimates  that 
under  such  authority  a  trustee  might  become  a  purchaser  of  the 
trust  property  ;  ^  and  a  mortgagee  is  not  a  mere  trustee,  but  has 
interests  of  his  own  to  protect.* 

If  the  mortgagee  avails  himself  of  his  right  to  purchase  under  a 
provision  in  the  power  giving  him  this  privilege,  he  will  be  held  by 
a  court  of  equity  to  the  strictest  good  faith  and  the  utmost  dili- 
gence in  the  execution  of  the  power  for  the  protection  of  the  rights 
of  the  mortgagor,  and  his  failure  in  either  particular  will  give  occa- 
sion to  allow  the  mortgagor  to  redeem.^  The  mere  fact  that  the 
land  did  not  sell  for  its  full  value  is  not  alone  sufficient  to  establish 
fraud  or  unfairness  in  the  mortgagee.^ 

1  Munn  y.  Surges,  79  111.  604;  Griffin  v.  security  of  the    mortgagee  would  be   less 

Marine  Co.  of  Chicago,  52  III.  130.  valuable,  and  the  mortgagor  would  lose  the 

^  Elliott  V.  Wood,  4.5   N.  Y.   71;  Mont-  benefit  of  the  competition  of  the  mortgagee 

gomery  v.  Dawes,  12  Allen,  397;    Hall    v.  upon  the   sale."    In  the  case  of  Griffin  v. 

Bliss,  118  Mass.  554;  Davey  v.  Durrant,  1  Marine  Co.  of  Chicago,  52  111.  130,  it  was 

De  G.  &  J.  535  ;  Robinson  v.  Amateur  Asso.  said  that  the  clause,  conferring  upon  the 

14  S.  C.    148;  Kennedy  i'.  Dunn,  58  Cal.  mortgagee  the  right  to  purchase  at  his  own 

339  ;  Knox  v.  Armistead,  87  Ala.  511,  6  So.  sale,  is  subject  to  a  strict  construction,  and 

Rep.  311,  quoting  text ;  Ellenbogen  v.  Grif-  to  be  regarded  with  disfavor  by  the  courts, 

fey,  55  Ark.  268, 18  S.  W.  Rep.  126.  It  is  conceived  that  this  is  an  erroneous  view 

3  Downes  v.  Grazebrook,  3  Mer.  200.  He  of  the  subject,  whatever  may  be  thought  of 
says  :  "  A  trustee  for  sale  is  bound  to  bring  the  correctness  of  the  decision  of  the  case 
the  estate  to  the  hammer  under  every  possi-  before  the  court.  The  mortgage  there  au- 
ble  advantage  to  his  cestui  que  trust.  He  thorized  the  mortgagee  "to  become  pur- 
may,  if  he  pleases,  retire  from  being  a  trus-  chaser  at  said  sale,  or  any  member  or  mem- 
tee,  and  divest  himself  of  that  character,  in  bers  of  the  firm  of  H.  A.  Tucker  &  Co.  may 
order  to  qualify  himself  to  become  a  pur-  become  a  purchaser  at  such  sale,  provided 
cha.<!er ;  and  so  he  may  purchase,  not  indeed  his  or  her  bid  for  said  property,  orany  por- 
from  him.self  as  trustee,  but  under  a  spe-  tion  thereof."  It  was  held  that  the  right  to 
cific  contract  with  his  cestui  que  trust.  But  purchase  was  intended  to  be  upon  condi- 
while  he  continues  to  be  a  trustee,  he  can-  tions  not  fully  expressed,  and  the  language 
not,  without  the  express  authority  of  his  not  being  intelligible  the  clause  should  be 
cestui  que  trust,  have  anything  to  do  with  the  disregarded  entirely,  and  therefore  that  the 
trust  property  as  a  purchaser."  In  Elliott  mortgagee  had  no  power  to  purchase. 
V.  Wood,  45  N.  Y.  71,  Mr.  Justice  Allen  *  Waters  r.  Groom,  11  CI.  &  Fin.  684. 
said:  "  Poweis  of  sale  arc  construed  liber-  ^  Montague  v.  Dawes,  14  Allen,  369; 
ally  for  the  purpose  of  effecting  the  general  Chilton  v.  Brooks,  69  Md.  584, 16  Atl.  Rep. 
object,  and  neither  the  interest  of  the  mort-  273. 

gagee  nor  mortgagor  will  be  advanced  by  *  Matthews  v.  Daniels  (Ark.),  21   S.  W. 

forbidding  purchase  by  tiie  mortgagee.  The  Rep.  469. 

743 


§  1884.]        POWER   OF   SALE  MORTGAGES  AND   TRUST   DEEDS, 

1884.  This  rule  has  no  application  to  a  subsequent  mort- 
gagee who  buys  at  a  sale  under  a  prior  mortgage,  although  under 
his  own  security  he  holds  the  position  of  a  trustee  to  sell,  and  is 
debarred  from  purchasing  at  a  sale  under  his  own  power.^  This 
decision  of  the  Master  of  the  Rolls,  in  the  leading  case  of  Shaw  v. 
Bunny,  was  affirmed  by  the  Court  of  Appeals  in  Chancery,^  where 
Lord  Justice  Knight  Bruce  said :  "  There  being,  I  think,  not  any 
special  circumstance  in  the  present  instance  to  prejudice  or  affect 
the  purchaser's  right,  his  title  against  the  mortgagor  to  the  benefit 
of  the  purchase  seems  to  me,  also,  as  absolute  as  that  of  a  mere 
stranger  purchasing  would  have  been.  I  consider,  I  repeat,  in  ac- 
cordance with  the  view  of  the  Master  of  the  Rolls,  that  there  was 
nothing  to  preclude  the  second  mortgagee  from  buying  in  the  cir- 
cumstances in  which  he  bougiit,  and  retaining  his  purchase.  If 
indeed,  he  had  availed  himself  of  his  position  as  a  mortgagee  to 
procure  some  facility  or  advantage  leading  to  the  purchase,  or  con- 
nected with  it,  that  might  have  made  a  difference.  But  I  see  no 
such  case.  It  seems  to  me  immaterial  that  the  purchaser  would  not 
(if  he  would  not)  have  been  informed  of  the  intended  sale  had  he 
not  been  a  mortgagee." 

But  if  the  second  incumbrancer  is  not  merely  a  mortgagee,  but 
holds  the  equity  of  redemption  in  trust  for  third  persons  for  sale 
on  default  in  the  payment  of  the  debt,  he  is  incapacitated  from 
purchasing  at  a  sale  by  the  first  mortgagee.  He  is  in  such  case  a 
trustee.^ 

The  circumstances,  however,  that  the  second  mortgage  is  in  the 
form  of  a  conveyance  in  trust  to  sell,  and  out  of  the  proceeds  to 

1  Shaw  V.  Bunny,  33  Beav.  494,  2  De  G.,  step  is,  can  he  purchase  under  a  power  of 

J.  &   S.  468;   Kirkwood  v.   Thompson,  2  sale  executed  by  a  first  mortgagee  ? 

Hem.  &  M.  392,  11  Jur.  N.  S.  385,  2  De  G.,  "  It  seems  to  me  to  follow  as  a  necessary 

J.  &  S.  613;  Parkinson  v.  Hanbury,  2  De  corollary,    because   the   sale   that   is   made 

G.,  J.  &  S.  540.  under  the  power  of  sale  by  a  first  mortgagee 

'■2  Shaw  V.  Bunny,  13  W.  R.  374,  2  De  G.,  is  substantially  a  sale  by  the  mortgagor,  for 

J.  &  S.  4C8.     The  sale  in  this  case  was  not  it  is  a  sale  made  under  an  authority  given 

by  auction  but  private.     Lord  Justice  Tur-  by  the  mortgagor  paramount  to  the  title  of 

ner,  who  also  sat  in    this   case,  expressed  the  second  mortgagee.     It  seems  to  me  that 

some  doubt  as  to  the  view  taken  by  his  as-  on  the  principle  of  the  case  there  is  no  dif- 

sociate  and  by  the  Master  of  the  Rolls;  but  ference  whatever  between  a  purchase  from 

as  remarked  by  Lord  Chancellor  Cranworth,  a  first  mortgagee  under  a  power  of  sale  and 

in  Kirkwood  v.  Thompson,  2  De  G.,  J.  &  S.  a  purchase  from  the  mortgagor  himself." 

613,  the  authority  of  the  decision  is  in  no  ^  Parkinson  v.  Hanbury,  2  DeG.,  J.  &  S. 

way  affected  thereby.     The  Lord  Chancel-  4.oO;  Van  Epps  v.  Van  Epps,  9  Paige,  237  ; 

lor   moreover   approved    the   decision,  and  Bell   v.  Webb,  2  Gill,  163;  Boyd  v.  Hawr- 

supported  it  by  strong  arguments.     After  kins,  2  Ired.  (Eq.)  304;  Taylor  v.  Heggie, 

showing   that   a   mortgagee   can   purchase  83  N.  C.  244. 
from  his   mortgagor   he   said:  "The   next 

744 


WHO  MAY   PURCHASE   AT   SALE   UNDER   POWER.  [§  1885. 

pay  the  debt  secured  to  the  grantee  and  all  other  incumbrances,  and 
pay  over  the  surplus  to  the  mortgagor,  does  not  prevent  his  pur- 
chasing under  the  prior  mortgage.^  "  As  between  the  mortgagor, 
the  person  conveying,  and  the  person  to  whom  it  was  conveyed  in 
trust  to  sell,  it  certainly  was  a  mortgage  as  far  as  he  was  concerned. 
He  took  possession,  and  he  taking  possession  would  be  liable  to  ac- 
count as  mortgagee.  It  cannot  be  contradicted  that,  between  the 
parties  conveying  and  the  parties  to  whom  it  was  conveyed,  it  cer- 
tainly was  a  mortgage.  It  is  possible  —  I  do  not  say  whether  that 
would  be  so  —  that  there  might  have  been  different  duties  as  be- 
tW'Cen  him  and  the  mortgagor  if  he  had  sold  than  would  have 
existed  in  the  case  of  a  simple  mortgage.  But  what  took  place  is 
something  that  comes  in  paramount  and  prior  to  the  exercise  of  the 
duties  as  trustee  ;  he  never  can  sell,  because  persons  having  a  para- 
mount title  to  his  title  choose  to  exercise  that  right,  and  therefore 
prevent  the  possibility  of  his  exercising  his  right,  which  is  a  trust 
only  to  arise  if  it  was  ever  in  his  power  to  sell,  which  it  was  not,  in 
consequence  of  the  sale  made  by  the  prior  mortgagees."  ^ 

It  is,  moreover,  immaterial  that  the  second  mortgagee  is  in  posses- 
sion at  the  time  of  this  purchase  under  the  power  in  the  first  mort- 
gage. His  possession  creates  no  new  obligation  except  to  account. 
Otherwise  his  relation  as  mortgagee  remains  the  same  as  if  he  had 
not  fceen  in  possession.^  The  fact  of  his  possession  does  not  pre- 
vent his  purchasing  the  equity  of  redemption  on  an  execution  sale 
had  upon  a  judgment  in  favor  of  a  third  person.* 

1885.  The  right  to  avoid  such  a  sale  is  waived  by  delay. 
When  a  mortgagee  purchases  at  a  sale  under  a  power  in  a  mortgage 
which  does  not  give  him  the  right  to  purchase,  the  equitable  owner 
may  set  it  aside  and  recover  the  property,  or  he  may  at  his  election 
affirm  it  and  have  the  price  obtained  applied  to  the  mortgage  debt, 
and  receive  the  surplus  if  there  be  any.  But  this  right  to  avoid 
the  sale  will  be  treated  as  waived  unless  asserted  within  a  reason- 
able time.^  What  delay  will  be  regarded  as  a  waiver  of  tiiis  right 
depends  upon  the  circumstances  of  the  case  ;  there  can,  of  course, 
be  no  fixed  rule.  After  a  lapse  of  thirteen  years,  during  which  no 
payment  of  interest  or  principal  had  been   made  or  offered  by  any 

1  Kirkwood  v.  Thompson,  2  De  G.,  J.  &        *  Ten  Eyck  v.  Craig,  62  N.  Y.  406. 

S.  613.  ^  Nichols  v.  Baxter,  5  R.  I.  491  ;  Miinn 

2  Per  Lord  Chancellor  Cranworth  in  v.  Burges,  70  111.  604;  Joyner  i;.  Farmer, 
Kirkwood  v.  Thompson,  2  De  G.,  J.  &  S.  78  N.  C.  196;  Taylor  v.  Heggie,  83  N.  C. 
G13.  244. 

'  Kirkwood  v.  Thompson,  2  De  G.,  J.  &  S. 
613. 

745 


§§  1886, 1887.]     POWER  of  sale  mortgages  and  trust  deeds. 

one  on  account  of  the  mortgage  debt,  the  owner  of  the  equity  of 
redemption  was  not  allowed  to  redeem,  though  he  was  not  notified 
of  the  sale  and  had  no  actual  knowledge  of  it.^ 

1886.  If  the  title  acquired  by  a  mortgagee  in  this  way  has 
passed  into  the  hands  of  a  bona  fide  purchaser  without  notice, 
and  for  an  adequate  consideration,  the  sale  cannot  afterwards  be 
impeached.2  Such  a  sale  being  voidable  only,  and  not  void,  the 
title  passes  to  the  nominal  purchaser,  and  any  proceedings  to  set 
aside  the  sale,  to  be  effectual,  must  be  commenced  before  he  conveys 
to  another  who  purchases  in  good  faith. 

1887.  A  mortgagor  may  purchase  at  a  sale  under  his  own 
mortgage;*'^  but  if  he  has  given  a  subsequent  mortgage  upon  the 
same  property,  his  purchase  will  not  defeat  this,  but  will  operate 
for  the  benefit  of  it  in  the  same  way  as  a  discharge,  or  a  transfer  of 
the  mortgage  to  himself.*  He  cannot  set  up  against  his  own  incum- 
brance another  one  which  he  has  himself  created.  Whether  the 
mortgagor  would  stand  in  any  better  position  as  regards  the  sub- 
sequent incumbi-ancer  if,  instead  of  purchasing  directly  under  the 
power,  the  estate  had-  been  sold  under  the  power  to  a  stranger  and 
subsequently  purchased  from  such  stranger  by  the  mortgagor,  is  a 
question  raised  but  not  decided  in  the  case  last  cited.  And  in  like 
manner,  if  a  purchaser  of  an  equity  of  redemption  subject  to  two 
mortgages,  both  of  which  he  assumed  the  payment  of,  afterwards 
purchases  at  a  foreclosure  sale  under  the  senior  mortgage,  he  cannot 
set  up  the  title  acquired  by  such  last  purchase  as  against  the  junior 
mortgage,  but  his  purchase  will  be  considered  a  payment  of  the  prior 
mortgage.^ 

1  Learned  v.  Foster,  117  Mass.  365.  that  a  mortgagee  purchasing  the  equity  of 

2  Dexter  v.  Shepard,  117  Mass.  480;  redemption  could  not  set  up  his  own  mort- 
Burns  v.  Thayer,  11.5  Mass.  89;  Benham  v.  gage  against  a  subsequent  mortgage  made 
Ro\ve,2Cal..387,56  Am.  Dec.342;  Blockley  by  the  same  mortgagor.  But  in  Toulmin 
V.  Fowler,  21  Cal.  326,  82  Am.  Dec.  747  ;  v.  Steere,  3  Mer.  210,  the  correctness  of  this 
Rutherford  v.  Williams,  42  Mo.  18;  Robin-  proposition  has  been  questioned,  and  cannot 
son  V.  CuUom,  41  Ala.  693;  Thurston  v.  now  be  regarded  as  law.  Otter  i>.  Vaux,  6 
Prentiss,  1  Mich.  193;  Niles  v.  Ransford,  1  De  G.,  M.  &  G.  638. 

Mich.  338,  51  Am.  Dec.  9.5.  *  Hilton    v.   Bissell,   1    Sandf.   Ch.    407; 

3  Bensiecky.Cook,  llOMo.  173, 19  S.  W.  Tompkins  y.  Halstead,  21  Wis.  118;  Stiger 
Rep.  642;  Houston  v.  Nord,  39  Minn.  490,  v.  Mahone,  24  N.  J.  Eq.  426;  Plum  v. 
40  N.  W.  Rep.  568;  Mooring  v.  Little,  98  Studebaker  Bios.  Manuf.  Co.  89  Mo.  162. 
N.  C.  472,  4  S.  E.  Rep.  485.  But  in  the  latter  case  it  was  held  that  where 

*  Otter  V.  Vaux,  6  De  G.,  M.  &  G.  638;  land  incumbered  by  two  trust  deeds  given 
Ayer  v.  Phila.  &  B.  Face  Brick  Co.  157  by  a  married  woman  to  secure  debts  of  a 
Mass.  57,  31  N.  E.  Rep.  717.  This  princi-  third  person  was  sold  under  the  first  deed, 
pie,  that  a  mortgagor  cannot  set  up  an  after-  and  bought  in  by  the  beneficiary,  who  sub- 
acquired  title  against  liis  own  incumbrancer,  sequently  conveyed  the  property  to  the 
has  been  carried  to  tlie  extent  of  holding  grantor,  she  acquired  the  land  freed  from 
746 


THE   DEED   AND   TITLE.  [§§  1888,  1889. 

A  subsequent  purchaser  of  an  undivided  half  of  the  mortgaged 
premises  may  purchase  them  at  a  sale  under  the  power.  His  rela- 
tions to  the  mortgHgor  are  not  of  such  a  confidential  nature  as  to 
prevent  his  buying. ^ 

A  director  of  a  corporation  may  purchase  at  a  foreclosure  sale 
property  of  the  corporation  mortgaged  by  vote  of  the  directors,  pro- 
vided good  faith  be  shown. '^^ 

1888,  The  wife  of  the  mortgagor  may  become  a  purchaser 
under  the  power  of  sale,  and  hold  the  estate  as  her  sole  and  sepai-ate 
property,  when  the  conveyance  is  made  to  her  in  the  name  of  the 
mortgagee,  and  not  as  attorney  of  the  mortgagor.  The  technical 
objection,  tliat  a  husband  cannot  directly  convey  to  his  wife,  does 
not  apply. ^  It  would  seem  on  principle  that  it  would  make  no  dif- 
ference as  to  the  wife's  right  to  purchase  whether  the  husband  had 
before  the  sale  parted  with  his  equity  of  redemption,  though  in  the 
case  cited  he  had  already  conveyed  his  interest;  for  the  mortgagee 
had  the  legal  title,  and  he  could  without  doubt  assign  his  mortgage 
to  the  mortgagor's  wife.  It  is  different  from  the  case  of  a  pui'chase 
of  an  equity  of  redemption  on  execution  bj'  the  wife  of  the  judg- 
ment debtor.  The  sheriff  has  no  title,  and  exercises  only  a  statute 
power;  and  the  husband  has  a  right  to  redeem,  which  he  could  not 
enforce  b}^  suit  against  his  wife.  Such  a  sale,  if  it  could  be  made, 
would  operate  as  a  conveyance  of  the  husband's  title  directly  from 
him  to  his  wife.* 

XII.    The  Deed  and  Title. 

1889.  The  holder  of  legal  title  should  make  the  deed  under 
the  power  of  sale.  The  assignee  has  the  same  authority  in  this 
respect  that  the  mortgagee  himself  had  if  the  posver  is  expressly 
given  to  his  assigns.^  Upon  the  death  of  the  assignee  his  executor 
or  administrator  may  execute  the  power,  though  it  be  only  to 
the  mortgagee,  "his  heirs,  executors,  administrators,  or  assigns."** 
Under  a  statute  providing  for  a  sale  under  the  power  by  a  sheriff  or 

the  second  deed  of  trust,  and  could  convey  In  tlie  case  of  Sanders  v.  Cassady,  86  Ala. 

a  good  title.  246,  5  So.  Kep.  503,  an  auctioneer  who  solil 

1  Burr  V.  Mueller,  G.5  III.  258.  the  land  at  public  auction,  for  the  assignee 

2  Saltmarsh  ;;.  Spaulding,  147  Mass.  224,  of  the  mortgage,  made   the   deeds   in   his 
17  N.  E.  liep.  316.  own  name  to  the  purchaser.     As  a  matter 

''  Field  j;.  Gooding,  106  Mass.  310  ;  Gantz  of  course,  not  being  the  transferee  of  the 

V.  Toles,  40  Mich.  725.  mortgage,  and   having  no  title  in   himself 

*  Stetson  V.  O'SuUivan,  8  Allen,  321.  otherwise,  he  could  convey  none.     Johnson 

5  Heath  v.  Mall,  60  111.  344.    In  Alabama  v.  Beard,  93  Ala.  96,  9  So.  Kep.  535. 

by  statute   the  equitable  assignee   without        "  Saloway  v.  Strawbridge,  1   Jur.   N.  S. 

the  legal  title  may  make  the  deed.     §  1789.  1194,  7  De  G.,  M.  &  G.  594,  I  K.  &  J.  371. 

747 


§  1889.]        POWER    OF    SALE   MORTGAGES   AND   TRUST   DEEDS. 

other  officer,  such  officer  stands  in  the  place  of  the  mortgagee  in 
exercising  the  power  of  sale  ;  he  executes  the  deed  to  the  purchaser 
by  virtue  of  the  power.  The  provision  of  statute  has  the  same 
effect  as  if  made  part  of  the  mortgage  deed.^ 

So,  also,  a  trustee  selling  under  a  deed  of  trust  conveys  the  title 
and  estate  that  was  vested  in  him  by  the^  trust  deed.  He  is  not 
required  to  enter  into  any  personal  covenants  himself  against  gen- 
eral incumbrances,  though  he  usually  covenants  against  such  as  are 
done  or  suffered  by  himself.  The  purchaser  is  bound  to  know  that 
there  can  be  no  personal  warranty  of  title.  He  is  also  bound  to 
take  notice  of  the  title  as  it  stands  in  the  trustee  with  all  its  defects 
as  it  appears  of  record.^  The  deed  of  a  trustee  after  the  grantor 
has  conveyed  his  equity  of  redemption,  which  recites  that  the  trus- 
tee conveys  all  the  right,  title,  and  estate  of  the  grantor  in  the 
property,  is  sufficient  to  pass  the  title  and  cut  off  the  equity  of 
redemption.^ 

A  trustee  can  make  but  one  sale  and  deed,  and  if  he  attempts  to 
make  a  second  deed  the  grantee  will  take  no  title.*  A  sale  was 
made  under  a  deed  of  trust,  bringing  enough  to  pay  the  creditor 
and  leave  a  surplus  to  the  grantor,  who  had  fled  from  the  State. 
The  purchasers,  being  apprehensive  that  they  would  be  required  to 
pay  the  surplus  to  the  grantor's  creditors,  after  receiving  a  deed 
from  the  trustee  reconveyed  the  property  to  the  trustee  and  induced 
him  to  sell  it  again,  and  at  such  sale  purchased  the  land  again  for  a 
trifling  sum,  and  received  a  second  deed  from  the  trustee.  The 
grantor  brought  suit  for  the  surplus  under  the  first  sale  and  re- 
covered, because  the  second  sale  was  a  nullity.^ 

The  power  to  execute  a  conveyance  under  a  sale  by  virtue  of  a 
power  of  sale  will  be  inferred  as  a  necessary  incident  though  not 
expressed  in  the  power  of  sale.^ 

The  deed  should  recite  the  power  by  virtue  of  which  the  sale  is 
made,  though  perhaps  such  a  recital  is  not  necessary  as  a  matter  of 
law.'''  If  the  deed  be  made  by  an  attorney  of  the  mortgagee,  his 
authority  should  be  evidenced  by  a  writing  under  seal,  although  the 
power  of  sale  expressly  authorizes  the  mortgagee,  his  legal  repre- 
sentatives or  attorney,  to  convey.     But  a  deed  executed  by  an  at- 

1  Hoffman  v.  Harrington,  33  Mich.  392.  «  Hunter    r.    WooUlert,    55    Tex.    433  ; 

2  Barnard  v.  Duncan,  38  Mo.  170,  90  Williams  v.  Otey,  8  Humph.  563,  568,  47 
Am.  Dec.  416.  Am.  Dec.  632;  Fogarty  v.  Sawyer,  17  Cal. 

3  Tyler  v.  Mass.  Mut.  Ins.  Co.  108  111.  589,  592  ;  Valentine  v.  Piper,  22  Pick.  433, 
58.  33  Am.  Dec.  715. 

*  Koester  v.  Burke,  81  111.  436.  ^  Smith  v.  Henning,  10  W.  Va.  596. 

5  Gair  v.  Tattle,  49  Fed.  Rep.  198. 
748 


THE  DEED   AND   TITLE.  [§§  1890,  1891. 

torney  not  so  authorized  may  be  regarded  as  conveying  to  the  pur- 
chaser an  equitable  interest  in  the  premises,  which  he  may  set  up  in 
bar  of  a  suit  in  equity  to  have  the  sale  set  aside. ^ 

If  a  mortgage  be  taken  by  one  in  his  capacity  as  administrator 
when  he  had  no  right  to  hold  real  estate  in  that  capacity,  upon  a 
sale  by  him  under  a  power,  the  deed  should  be  executed  by  him  in 
his  own  right  and  character. ^ 

1890.  If  the  mortgagee  be  a  married  woman  she  may  execute 
the  power  of  sale  in  her  own  name,  and  it  is  not  necessary  for  her 
husband  to  join  in  the  conveyance  or  consent  thereto  in  writing,  as 
is  provided  by  statute  in  case  of  a  conveyance  of  her  own  real  prop- 
erty.3 

1891.  "When  the  power  authorizes  the  donee  to  execute  a 
deed  in  the  name  of  the  mortgagor,  or  as  his  attorney,  it  must 
be  so  executed ;  ^  anid  the  deed  of  sale  will  then  be  the  deed  of  the 
donor  of  the  power  and  not  of  the  donee.°  In  such  case,  if  the 
deed  be  in  the  name  of  the  mortgagee,  although  it  may  not  convey 
a  good  title  in  fee  simple  at  law,  it  will  pass  an  equitable  title  to  the 
grantee.^  And  a  court  of  equity  may  aid  the  defective  execution  of 
the  deed,  and  establish  the  legal  title  to  the  land.''  But  the  power 
was  formerly  and  is  now  more  frequently  given  to  be  exercised  by 
the  donee,  and  in  such  case  the  deed  of  sale  must  be  executed  in 
the  name  of  the  donee  of  the  power. ^  It  is  often  the  case  that  the 
power  is  given  in  the  alternative,  and  then  the  deed  of  sale  may  be 
executed  in  either  form,  or  in  both  forms.  When  the  power  is  "  to 
make,  execute,  and  deliver  to  the  purchaser  or  purchasers  thereof 
all  necessary  conveyances,  for  the  purpose  of  vesting  in  such  pur- 
chaser or  purchasers  the  premises  so  sold  in  fee  simple  absolute,"  it 
may  be  executed  by  the  deed  of  the  mortgagee  in  his  own  name  ; 
though  it  might,  perhaps,  be  executed  by  him  as  the  attorney  of  the 
mortgagor.^ 

An  administrator  who  has  taken  a  power  of  sale  mortgage,  in 
which  he  is  described  as  administrator,  should  execute  a  deed  under 
the  power  contained  in  the  mortgage  in  his  own  name,  right,  and 
character,  and  not  as  administrator,  as  he  does  not  hold  the  land  in 
that  charactei*,  and  cannot  exercise  the  power  in  that  capacity. ^*^ 

1  Watson  V.  Sherman,  84  111.  263.  6  Mulvey  v.  Gibbons,  87  111.  367. 

2  Wilkerson  v.  Allen,  67  Mo.  502.  "  Gibbons  r.  Iloaj^,  95  III.  45.     See,  how- 

3  Cranston  v.  Crane,  97  Mass.  459,  93  ever,  Denily  i-.  Waite,  36  S.  C.  569,  15  S.  E. 
Am.  Dec.  106.  Kep.  712. 

*  Den.ly  v.  Waite,  36  S.  C.  569,  15  S.  E.         »  Munn  i-.  Burfjes,  70  111.  604. 
Rep.  712.  "  Cranston  v.  Crane,  97  Mass.  459. 

6  Speer  v.  Iladduck,  31  III.  439.  ^"^  Wilkerson  v.  Allen,  67  Mo.  502. 

749 


1892.]        POWER    OF   SALE   MORTGAGES    AND   TRUST   DEEDS. 


The  mortgagor  may,  by  a  provision  in  the  mortgage,  authorize  the 
auctioneer  who  shall  sell  the  property  under  the  power  to  execute  a 
conveyance  to  the  purchaser.  The  mortgage  then  becomes  a  power 
of  attorney  to  that  end.^ 

1892.  A  mortgagee  purchasing  may  make  a  deed  to  himself. 
The  courts  have,  in  some  instances,  intimated  that  upon  a  sale 
under  a  power  in  a  mortgage,  the  mortgagee,  although  authorized 
by  the  terms  of  the  power  to  become  a  purchaser  at  the  sale,  can- 
not make  the  deed  directly  to  himself,  but  must  convey  to  a  third 
person.2  But  in  a  recent  case  in  Massachusetts  it  was  decided  that 
under  a  mortgage  which  provided  that  the  mortgagee  might  pur- 
chase at  the  sale,  and  that  the  deed  to  the  purchaser  might  be 
made  by  the  mortgagee,  either  as  the  attorney  of  the  mortgagor  or 
in  his  own  name,  a  deed  executed  in  both  forms  to  himself  directly 
was  valid.^  From  the  principles  on  which  the-  decision  is  based, 
it  would  seem  that  the  court  would  have  held  that  the  mortgagee 
might  have  made  the  deed  in  his  own  name  directly  to  himself,  and 
that  the  validity  of  it  did  not  depend  upon  the  execution  of  it  to 
himself  in  the  name  of  the  mortgagor. 


1  Gamble  v.  Caldwell  (Ala.)  12  So.  Rep. 
424. 

-  Dexter  v.  Sliepard,  117  Mass.  480; 
Jackson  v.  Golden,  4  Cow.  266. 

='  Hall  V.  Bliss,  118  Mass.  5.54,  19  Am. 


might  have  existed  if  lie  had  owned  it  at 
the  time  of  the  sale.  See  Tucker  v.  Fenno, 
110  Mass.  311.  The  iutervcntion  of  the 
mortgagee  as  donee  of  the  power  removed 
the   technical   objection   that  the   husband 


Rep.  476.  "  Such  a  mortgage,"  says  Gray,  could  not  convey  directly  to  his  wife.  The 
C.  J.,  "vests  a  seisin  and  a  conditional  es-  suggestions  in  Dexter  y.  Shepard,  117  Mass. 
tute  in  the  mortgagee,  with  a  power  super-  480,  and  in  Jackson  v.  Colden,  4  Cow.  266, 
added  to  convey  an  absolute  estate  by  a  that,  upon  a  sale  under  the  power  in  a 
sale  pursuant  to  the  terms  of  the  power,  mortgage,  the  deed  could  not  be  made  by 
The  execution  of  the  power  does  but  the  mortgagee  to  himself,  were  by  way  of 
change,  in  accordance  with  the  terms  of  argument  only,  and  not  of  adjudication  ; 
the  mortgage  deed,  the  uses  upon  which  for  in  Dexter  v.  Shepard  the  purchase  and 
the  estate  is  to  be  held.  _  The  purchaser  conveyance  were  made  through  a  third 
at  the  sale  takes,  not  as  the  grantee  of  the  person  ;  and  in  Jackson  v.  Colden  the  court 
mortgagee,  but  as  the  person  designated  or  held  that,  under  a  statute  containing  pro- 
appointed  by  the  mortgagee  in  execution  visions  similar  to  those  of  this  mortgage, 
of  the  power,  and  derives  his  title  from  the  no  deed  was  necessary  when  the  mortgagee 
mortgagor,  as  if  the  designation  or  ap-  became  the  purchaser  at  the  sale;  and  al- 
pointmcnt  had  been  inserted  in  the  original  though  the  counsel  on  both  sides,  and  the 
deed,  and  the  seisin  or  interest  to  serve  the  other  judges,  assumed  that  it  would  be 
estate  is  raised  by  that  deed.  .  .  .  The  de-  impossible  to  make  such  a  deed.  Chief  Jus- 
cision  in  Field  v.  Gooding,  106  Mass.  310,  tice  Savage  implied  that,  if  any  deed  was 
that,  upon  a  sale  under  a  power  in  a  mort-  necessary,  a  deed  from  the  mortgagee  to 
gage,  the  wife  of  the  mortgagor  might  be  himself  would  be  valid.  And  see  Hood  v. 
the  purchaser,  and  have  the  estate  conveyed  Adams,  124  Mass.  481,  26  Am.  Rep.  687. 
to  her,  is  in  nowise  inconsibtent  with  this  The  case  of  Hall  v.  Bliss  was  approved  and 
view.  The  fact  that  the  husband  had  pre-  followed  in  Woonsocket  Inst.  Sav.  i;.  Am. 
viously  sold  the  equity  of  redemption  re-  Worsted  Co.  13  R.  I.  255. 
lieved  that  case  from  the  difficulties  which 

760 


THE   DEED   AND   TITLE.  [§§  1893,  1894. 

1893.  In  New  York  by  statute  no  deed  is  necessary  when  the 
mortgagee  himself  becomes  the  purchaser,  and  it  is  said  that,  under 
the  statutes  as  they  now  stand  no  deed  is  necessary  in  any  case  to 
perfect  the  title  in  the  purchaser.  The  affidavits  in  such  case  have 
the  force  and  effect  of  a  deed.^  Until  they  are  made,  no  title  vests 
in  the  purchaser.  The  mortgagee  in  such  case,  in  order  to  main- 
tain ejectment  upon  his  title,  must  show  that  all  the  I'equirements 
of  the  statute  have  been  complied  with  and  the  affidavits  completed 
before  the  commencement  of  the  action.^  Unless  it  appears  by  the 
affidavits  on  file  that  the  notice  was  served  on  the  mortgagor,  the 
sale  will  not  give  any  title  to  the  purchaser.^ 

In  Alabama,  also,  it  seems  that  a  deed  is  not  necessary  to  vest 
the  title  in  the  mortgagee  who  has  become  a  purchaser  at  a  sale 
under  a  trust  deed.  He  has  both  the  legal  and  equitable  title,  and 
can  recover  possession,  the  mortgagor  not  having  taken  steps  to 
redeem.*  At  any  rate,  after  such  a  sale  and  long  acquiescence  in  it, 
the  mortgagee  or  his  grantee  is  entitled  to  a  decree  vesting  in  him 
whatever  legal  estate  remained  in  the  mortgagor.^ 

1894.  After  a  sale  under  a  power  the  title  as  a  general  rule 
remains  unaffected  until  a  deed  is  executed  and  delivered  by  the 
mortgagee  to  the  purchaser.  The  auction  sale  does  not  vest  the 
title  in  the  purchaser.^  Upon  the  delivery  of  the  deed  the  pur- 
chaser is  entitled  to  the  possession  of  the  property,  and  he  may 
maintain  a  writ  of  entry  or  an  action  of  ejectment  to  recover  it.'^ 
He  need  not  give  the  mortgagor  or  other  occupant  of  the  premises 
notice  to  quit  before  bringing  a  suit  to  recover  possession  of  the 
premises,  though  the  mortgage  provides  that  the  mortgagor  may 
retain  possession  until  a  sale  is  made.  Notice  to  quit  is  neces- 
sary onl}^  where  the  relation  of  landlord  and  tenant  exists.^  In  New 
York,  where  no  deed  is  necessary  to  the  passing  of  the  title,  the 
foreclosure  has  sometimes  been  said  to  be  complete,  so  far  as  to 
War  the  equity  of  redemption,  as  soon  as  the  sale  is    made,^  though 

1  See  §1660;  Jackson  r.  Golden,  4  Cow.  ^  Brunson  v.  Morgan,  72.  Iowa,  763,  4 

266.  So.  Rep.  589. 

-  Tuthill  V.  Tracy,  31  N.  Y.  157;  Lay-  **  Tripp  r.  Ide,  3  R.  I,  51.     See  §  1653, 

man  i\  Wliitiug,  20  Barb.  559;  Bryan  v.  for  delivery  of  deed  under  judicial  sales. 

Butts,  27  Barb.  503;  Howard  i;.  Hatch,  29  '  Lydston    v.    Powell,    101    Mass.    77; 

Barb.  297.  Cranston  v.  Crane,  97   Mass.  459,  93  Am. 

3  Dwight  V.  Phillips,  48  Barb.  116.  Dec.  106. 

*  Ham  brick    v.    New    Eng.    Mortg.    Co.  »  Waters  y.  Butler,  4  Cranch  C.  C.  371. 

(Ala.)  13  So.  Rep.  778;   American  Mort-  »  Tuthill  v.  Tracy,  31  N.  Y.  157;  Mowry 

gage  Co.  V.  Turner,  95  Ala.  272;    11   So.  v.  Sanborn,  7  Hun,  380,  68  N.  Y.  153. 
Rep.    212;     American     Mortgage    Co.    i;. 
Sewell,  92  Ala.  163,  9  So.  liep.  143. 

761 


§  1895.]       POWER   OF   SALE   MORTGAGES   AND   TRUST   DEEDS. 

according  to  some  authorities  the  right  of  possession  remains  in  the 
mortgagor  till  the  affidavits  are  made  and  recorded;^  and  until 
this  be  done,  there  is  no  transfer  of  title  sufficient  to  authorize  an 
action  of  ejectment  by  the  purchaser.  The  recorded  affidavits 
operate  as  a  statutory  transfer  of  title.^  In  Massachusetts  and  New 
York,  moreover,  the  purchaser,  instead  of  being  obliged  to  resort  to 
an  action  of  ejectment  to  enforce  his  right  of  possession  of  the 
mortgaged  premises,  may  now  recover  possession  by  the  summary 
process  used  in  landlord  and  tenant  cases. ^ 

1895.  The  deed  is  not  evidence  of  recitals  in  it.  A  deed 
made  in  pursuance  of  a  power  of  sale  by  the  mortgagee,  trustee, 
or  sheriff  is  by  itself,  in  a  suit  in  equity,  no  evidence  of  a  regular 
foreclosure  of  a  mortgage.^  It  is  sometimes  provided  in  deeds  of 
trust  that  the  recitals  contained  in  the  trustee's  deed  of  sale  under 
the  power  shall  be  primd  facie  evidence  of  the  facts  stated  in  it. 
But  in  the  absence  of  such  a  provision  the  recitals  are  either  re- 
garded in  equity  as  affording  no  evidence  of  their  truth,^  or  as  being 
at  most  prima  facie  evidence  of  the  facts  they  recite.^ 

In  an  action  at  law,  however,  the  trustee's  deed  made  under  a 
power  in  a  trust  deed  is  conclusive  evidence  of  the  sale  under  the 
power,  and  cannot  be  contradicted,  and  shown  to  have  been  exe- 
cuted in  violation  of  law,  and  therefore  fraudulent  and  void." 

The  deed  made  in  pursuance  of  the  power  usually  refers  to  the 
power,  and  recites  the  substance  of  it ;  but  this  is  not  absolutely 
essential,  if  it  is  otherwise  manifest  that  the  intention  of  the  mort- 
gagee was  to  execute  the  power.  If  such  intention  is  not  mani- 
fest, a  simple  deed  by  the  mortgagee  will  be  held  to  convey  only 
his    mortgage  interest    subject    to    redemption.^      A    deed   which 

1  Arnot  V.  McClure,  4  Denio,  41 ;  Layman  were  performed.  The  force  and  effect  of 
f.  Whiting,  20  Barb.  559.  the  presumption  may  be  impressed  by  any 

2  Mowry  v.  Sanborn,  7  Hun,  380,  68  N.  competent  evidence;  and  when  such  evi- 
Y.  153.  dence  leaves  the  preponderance  so  slightly 

3  §  1741 ;  Laws  of  N.  Y.  1874,  ch.  208.        in  favor  of  the  presumption  that  the  jury  do 
*  Barman    v.   Carhartt,    10   Mich.   338 ;    not  believe  the  act  was  done,  their  verdict 

Hebert  v.  Bulte,  42  Mich.  489 ;   Wood   v.  should  be  against  the  regularity  of  the  sale. 

Lake,  62  Ala.  489.  Tyler  v.  Herring,  67  Miss.  169,  6  So.  Rep. 

6  Vail  V.  Jacobs,  62  Mo.  130 ;  Neilson  v.  840. 

CharitonCo.  60Mo.  386;  Carter  y.  Abshire,  "^  §  1830;  Windetti;.  Hurlbut,  1 15  111.403; 

48  Mo.  300;  Hancock  v.  Whybark,  66  Mo.  Fulton  r.  Johnson,  24  W.  Va.  95,  108;  Dry- 

672.  den  v.  Stephens,  19  W.  Va.  1  ;  Lallance  v. 

e  Ingle  v.  Jones.  43  Iowa,  286 ;  Beal  v.  Fisher,  29  W.  Va.  512,  2  S.  E.  Rep.  775 ; 

Blair,  33  Iowa,  318.  Savings  and  Loan  Soc.  v.  Deering,  66  Cal. 

In  Mississippi  the  deed  is,  without  such  281. 

provision,  prima,  facie  evidence  that  all  min-  ^  Pease  v.  Pilot  Knob  Iron  Co.  49  Mo. 

isterial  acts  which  are  conditions  precedent  124, 
to   a  valid  exercise  of  the  power  of  sale 

752 


THE   DEED   AND   TITLE.  [§§  1896,  1897. 

represents  the  sale  as  one  made  in  bulk  for  a  single  bid  is  not  a 
proper  one  where  the  sale  was  in  fact  in  separate  parcels  and  for 
several  bids.^ 

1896.  The  deed  may  be  made  to  a  person  other  than  the 
purchaser  by  his  consent  and  direction.  It  is  often  the  case  that 
the  bidder  at  the  sale  transfers  his  bid  to  another,  and  directs  the 
deed  to  be  made  to  such  person,  and  if  there  be  no  fraud  in  the 
transaction,  and  no  loss  to  the  mortgagee  thereby,  there  can  be  no 
objection  to  the  transaction.  But,  even  if  objection  could  be  urged 
by  an  immediate  party  to  the  sale,  it  cannot  be  set  up  in  an  action 
of  ejectment  against  remote  purchasers  without  any  notice  of  the 
irregularity  to  defeat  their  title.^  If  the  purchaser  die  before  the 
conveyance  is  executed  this  does  not  avoid  the  sale,  but  the  deed 
may  be  made  to  his  executor  or  administrator  in  his  official  capacity 
upon  payment  of  the  purchase-money.^ 

1897.  The  purchaser  takes  the  mortgagor's  title  divested  of 
all  incumbrances  made  since  the  creation  of  the  power.*  "  It  has 
been  established  ever  since  the  time  of  Lord  Coke  that,  where  a 
power  is  executed,  the  person  taking  under  it  takes  under  him  who 
created  the  power,  and  not  under  him  who  executes  it."  ^  The  pur- 
chaser takes  all  the  mortgagor's  equity  of  redemption,  and  all  the 
mortgagee's  title  under  the  mortgage,^  He  takes  the  estate  free  of 
a  reservation  made  by  the  mortgagor  to  release  certain  easements 
belonging  to  the  mortgaged  premises.  By  the  exercise  of  the  power 
of  sale,  the  reserved  power  is  extinguished,  and  a  subsequent  re- 
lease by  the  mortgagor  is  void.^  He  takes  it  free  of  any  claim  the 
mortgagor  may  make  for  improvements  placed  upon  the  land  by 
liim.^  But  he  does  not  take  an  independent  title  acquired  by  the 
mortgagee,  or  a  right  reserved  to  him  as  grantor  in  the  original 
deed  to  the  mortgagor,^  unless  in  express  terms  the  entire  estate  be 
put  up  and  sold.^*^  A  sale  regularly  exercised  under  a  power  is 
equivalent  to  strict  foreclosure  by  a  court  of  equity  properly  pur- 

1  Grover  v.  Fox,  36  Mich.  461.  Brown  v.  Smith,  116  Mass.  108;  Aiken  v. 

2  Johnson  i-.  AA^itson,  87  111.  53.5,  8  Cent.    Bridgeford,  84  Ala.  295,  4  So.  Rep.   266 ; 
L.  J.  26.  Powers  v.  Andrews,  84  Ala.  289,  4  So.  Rep. 

•5  §  1652;  Lewis  v.  Wells,  50  Ala.  198.  263. 

*  §§  1654,    1853;    Doolittle  v.  Lewis,  7  ^  Bull's  Petition,  15  R.  L  534,   10  Atl. 

Johns.  Ch.  45,  1 1  Am.  Dec.  389 ;  Bancroft  Rep.  484 ;  Savings  Inst.  v.  Worsted  Co.  13 

V.  Ashhurst,  2  Grant  (Pa.)  Cas.   513;  Sims  R.  L  255. 

r.  Field,  66  Mo.  HI.  »  Neal  v.  Hamilton  (Tex.),  7  S.  W.  Rep. 

5  Lord   Tenterden,    C.   J.,  in    Wigan   v.  672. 

Jones,  10  B.  &  C.  459.  9  Walsh  r.  Macomber,  119  Mass.  73. 

«  Hall  V.   Bliss,  118  Mass.  554,  19  Am.  ^  Skilton  r.  Roberts,  129  Mass.  306. 
Rep.  476;  Torrey  v.  Cook,  116  Mass.  163; 

VOL.  II.                  48  753 


§  1897  a.]      POWER   OF   SALE   MORTGAGES   AND   TRUST   DEEDS. 

sued,^  or  to  a  foreclosure  and  sale  under  a  decree  in  equity,  and 
cannot  be  defeated  to  the  prejudice  of  one  purchasing  in  good  faith.^ 
The  sale  is  not  impaired  or  affected  in  any  way  by  reason  that  any 
person  interested  in  the  property  is  at  the  time  under  a  legal  dis- 
ability.^ 

The  doctrine,  that  a  purchaser  from  a  trustee  with  notice  of  the 
trust  shall  be  charged  with'  the  same  trust,  has  no  application  to 
sales  of  trust  estates  at  public  auction  under  the  terms  of  the  power 
contained  in  the  trust  deed.* 

Even  if  the  purchaser  under  the  power  omits  to  record  his  deed, 
a  subsequent  purchaser  from  the  mortgagor  has  no  right  of  redemp- 
tion. The  record  of  the  mortgage  is  sufficient  to  put  all  persons 
upon  inquiry  whether  any  proceedings  have  been  had  under  the 
power  of  sale.^ 

Of  course,  if  the  mortgage  was  void,  or  if  it  was  originally  valid 
but  the  remedy  upon  it  had  before  the  sale  become  barred  by  the 
statute  of  limitations,  the  purchaser  takes  no  title  or  interest  by  the 
sale.^ 

1897  a.  Taxes  are  a  lien  upon  the  land,  and  if  unpaid  at  the 
time  of  the  sale  the  purchaser  takes  the  title  subject  to  such  lien,  and 
the  omission  to  state  this  in  the  deed  cannot  be  considered  as  mate- 
rial, because  it  could  be  shown  by  oral  testimony  that  the  property 
was  sold  with  notice  of  such  lien,  and  with  the  understanding  on  the 
part  of  the  purchaser  that  it  was  to  be  conveyed  subject  to  the  lien. 
Such  evidence  does  not  tend  to  contradict  a  deed  which  contains  no 
covenants,  and  the  terms  of  sale  can  be  shown. ^ 

If  the  mortgagor's  assignee  in  insolvency  pays  a  claim  for  delin- 
quent taxes  on  the  mortgaged  premises,  which  was  proved  against 
the  mortgagor's  estate,  after  a  sale  under  the  mortgage  expressly 
subject  to  existing  liens,  the  amount  thus  paid  cannot  be  recovered 
of  the  mortgagee,  though  the  condition  of  the  sale  was  not  expressed 
in  the  deed.^ 

1  Aiken  v.  Bridgeford,  84   Ala.  295,   4  '  Brown  v.  Mass.  Mut.  L.  Ins.  Co.   157 

So.  Rep.  266.  Mass.  280,  32  N.  E.  Rep.  2,  per  Field,  C.  J. 

•■2  Jackson  V.  Henry,  10  Johns.  185,  6  Am.  And  see  Preble  v.  Baldwin,  6  Cush.  549; 

Dec.  328.     And  see  Demarest  v.  Wynkoop,  Carr  v.  Dooley,  119  Mass.  294  ;  Skilton  v. 

3  Johns.  Ch.   129,   147,  8  Am.  Dec.   457;  Roberts,  129  Mass.  306 ;  Flynn  y.Bourneuf, 

Robinson  v.  Amateur  Asso.  14  S.  C.  148,  143  Mass.  277,  9  N.  E.  Rep.  650 ;  Graffam 

152.  V.  Pierce,  143  Mass.  386,  9  N.  E.  Rep.  819  ; 

3  Demarest  v.  Wynkoop,  3  Johns.  Ch.  Simanovich  v.  Wood,  145  Mass.  180,  13  N. 
129,  147,  8  Am.  Dec.  459.  E.  Rep.  391. 

4  Wood  V.  Augustine,  61  Mo.  46.  ^  Brown  v.  Mass.  Mut.  L.  Ins.  Co.  157 

5  Farrar  v.  Payne,  73  111.  82  ;  Heaton  v.  Mass.  280,  32  N.  E.  Rep.  2.  The  court  re- 
Prather,  84  111.  330.     See  §  557.  marked  that  whether  in  equity  the  plaintift' 

6  Emory  v.  Keighan,  88  111.  482.  has  a  cause  of  action  against  the  purchaser 

754 


THE    DEED    AND    TITLE.  •       [§  1898. 

1898.  Bona  fide  purchaser.  —  One  who  purchases  at  a  sale 
under  a  power  without  notice,  actual  or  constructive,  of  any  irregu- 
larity in  the  proceedings,  acquires  a  valid  title,^  although  the  mort- 
gagor might  redeem  as  against  the  person  making  the  sale,^  as 
where  payment  of  the  mortgage  debt  has  been  tendered  to  the 
holder  of  the  mortgage.  Where  the  power  authorizes  the  mort- 
gagee to  become  a  purchaser,  and  title  is  made  to  him  accordingly, 
a  bond  fide  purchaser  from  him  without  notice  is  not  prejudiced  by 
such  irregularity  on  his  part  in  making  the  sale.^  Even  though  the 
title  is  voidable  because  the  mortgagee  was  the  purchaser,  under  a 
power  which  did  not  authorize  him  to  purchase,  yet  an  innocent 
purchaser  for  value  from  the  mortgagee  gets  a  good  title.*  To  de- 
feat a  sale  under  the  power,  the  mortgagor  should  immediately 
follow  up  the  tender  by  a  suit  to  redeem ;  otherwise  a  third  per- 
son without  notice  of  any  defect  in  the  proceedings,  or  of  any  facts 
that  should  put  him  as  a  reasonable  man  upon  inquiry,  may  gain  a 
good  title,  and  the  mortgagor  will  then  be  unable  to  redeem  against 
him,  although  he  might  against  the  purchaser  at  the  sale.°  If  the 
purchaser  be  cognizant  of  any  fraud  or  unfair  dealing  in  the  sale, 
he  acquires  no  title  by  it;^  as  where  he  has  agreed  with  the  mort- 
gagee's agent  to  share  the  profits  of  the  purchase,  and  he  has  bought 
the  property  at  a  grossly  inadequate  price.'' 

Although  the  mortgage  has  in  fact  been  paid,  if  not  discharged 
of  record,  a  sale  regularly  made  under  the  statute  to  a  bond  fide 
purchaser  is  held  to  be  equivalent  to  a  sale  under  a  decree  in  equity, 
and  is  therefore  an  entire  bar,  both  as  against  the  mortgagor  and 
all  persons  claiming  under  him.^  They  can  only  impeach  the  sale 
by  showing  that  the  proceedings  were  not  regular  and  effectual  in 
form.  Fraud  on  the  part  of  the  mortgagee  or  holder  of  the  mort- 
al the  sale  to  compel  him  either  to  pay  the  ^  Shillaber  r.  Robinson,  97  U.  S.  69. 
amount  of  the  taxes  or  to  have  the  land  sold  ^  Digby  v.  Jones,  67  Mo.  104. 
and  the  proceeds  applied  towards  the  pay-  *  Very  v.  Russell,  65  N.  H.  646,  23  Atl. 
ment,  need  not  be  decided  in  this  case.     See    Rep.  522. 

Fiacre  f.  Chapman,  32  N.  J.  Eq.  463  ;  Sim-  ^  Montague  v.  Dawes,  12  Allen,  397; 
mons  V.  Lyle's  Adm'r,  32  Gratt.  752,  763;  Hoit  v.  Russell,  56  N.  H.  559;  Grover  v. 
Greenwell  v.  Heritage,  71   Mo.  459;  ^tna     Hale,  107  111.  638. 

Life  Ins.  Co.  v.  Middleport,  124  U.  S.  534,  «  Jackson  r.  Crafts,  18  Johns.  110.  And 
8  Sup.  Ct.  Rep.  625 ;  Hermanns  y.  Fanning,  see  Hamilton  v.  Lubukee,  51  111.  415,  99 
151  Mass.  1,  23  N.  E.  Rep.  493.  Am.  Dec.  562. 

1  Jackson  v.  Dominick,  14   .lohns.  435;        ■?  Mann  v.  Best,  62  Mo.  491. 
Jackson    v.   Henry,  10  Johns.  185,  6  Am.        8  Warner  v.  Blakeman,  36  Barb.  501,  4 
Dec.  328;  Hosmer  v.  Campbell,  98  111.  572;    Keyes,  487  ;  Merchant  v.  Woods,  27  Minn. 
Jenkins   v.    Pierce,  98   111.  646;  Philips  v.     396;  Redin  v.  Branhan,  43  INIinn,  283,45 
Bailey,  82   Mo.   639;  Carey  v.   Brown,   62     N.  W.  Rep.  445. 
Cal.  373. 

755 


§  1899.]     •  POWER   OF   SALE   MORTGAGES   AND   TRUST   DEEDS. 

gage  will  not  defeat  the  title  of  such  purchaser.  Usury,  or  any  other 
matter  affecting  the  validity  of  the  mortgage,  will  not  affect  the 
validity  of  the  title  acquired  by  an  innocent  purchaser.^  If  the 
mortgage  be  void,  or  if  it  has  been  paid,  a  purchaser  with  notice 
acquires  no  title ;  but,  the  mortgage  appearing  of  record  to  be  valid, 
a  purchaser  without  notice  does  acquire  title.^  Where  a  foreclosure 
sale  is  not  considered  complete  until  the  expiration  of  the  year  or 
other  time  within  which  redemption  may  be  had,  such  a  sale  under 
a  paid-up  mortgage  confers  upon  the  purchaser  a  valid  title  to  the 
property  upon  the  expiration  of  such  time  without  redemption.^ 

Although  a  part  of  the  mortgaged  premises  has  been  released 
from  the  operation  of  the  mortgage,  if  the  release  be  not  recorded, 
and  the  part  released  be  sold  with  the  rest  to  a  bond  fide  purchaser 
without  notice,  he  will  hold  the  entire  property,  the  release  having 
no  effect  as  to  him.* 

The  sale  under  a  power  is  equivalent  to  a  foreclosure  and  sale  in 
equity,  and  a  bond  fide  purchaser  is  protected  in  the  same  manner 
and  to  the  same  extent.^ 

1899.  The  title  of  one  purchasing  in  good  faith  under  a 
power  of  sale  is  unafifected  by  any  agreement  between  the  par- 
ties to  the  mortgage  that  the  sale  should  be  deferred  in  considera- 
tion of  the  payment  of  the  interest  due ;  ^  or  that  no  sale  should  be 
made  without  giving  personal  notice  of  it  to  the  mortgagor ;  ~'  or 
because  a  tender  had  been  made  to  the  mortgagee  before  the  sale 
of  the  amount  due,  which  he  had  declined.^  Those  who  have 
bought  in  good  faith  from  the  purchaser  at  the  sale  are  not  af- 
fected by  any  irregularities  attending  it,  although  these  were  known 
to  their  vendor,  or  he  had  been  a  party  to  some  fraud  attending  it.^ 

In  Illinois,  however,  it  has  been  held  that  after  the  payment  of 
the  mortgage  debt  the  mortgage  itself  is  extinguished,  and  any  sale 
made  under  a  power  contained  in  it  is  void,  even  as  against  a  bo7id 
fide  purchaser.    After  such  a  sale,  the  purchaser  being  in  possession, 

This  case  substantially  overrules  the  dicta  ^  Merchant  v.  Woods,  27  Minn.  396. 

of  Mr.  Justice  Cowen,  that  the  purchaser  *  Palmer  v.  Bates,  22  Minn.  532. 

would  acquire  no  title  under  the  sale,  the  ^  Jackson    v.   Henry,    10   Johns.    185,  6 

mortgage  being  void  after  payment.     Cam-  Am.   Dec.  328 ;  Slee  v.  Manhattan    Co.  1 

eron  v.  Irwin,  5  Hill,  272.  Paige,  48. 

1  Elliott  V.  Wood,  53  Barb.  285;  Welsh  ^  Beatie  v.   Butler,  21  Mo.  313,  64  Am. 

V.  Coley,  82  Ala.  363,  2  So.  Rep.  733.  Dec.  234. 

-  Cameron  v.  Irwin,  5  Hill,  272;  Warner  '  Randall  v.  Hazelton,  12  Allen,  412. 

V.  Blakeman,  36   Barb.  501,  4  Abb.  App.  ^  Montagues.  Dawes,  12  Allen,  397. 

Dec.   530;  Penny  v.   Cook,  19  Iowa,  538;  ^  See  Hamilton  i'.  Lubukee,  51   111.  415, 

Ledyard   v.  Chapin,  6  Ind.  320;  Wade  v.  99  Am.  Dec.  562. 
Harper,  3  Yerg.  383. 

756 


THE   DEED   AND   TITLE.  [§§  1900-1902. 

a  court  of  equity  may  set  aside  the  sale,  and  compel  a  reconveyance 
of  the  legal  title,  in  order  to  remove  the  cloud.^  If  the  legal  title 
passes  to  the  purchaser  he  will  hold  as  trustee  for  the  debtor ;  but 
this  defect  will  not  be  inquired  into  at  law,  nor  can  the  trust  be 
established  except  in  equity .^ 

The  fact  that  by  mistake  more  land  is  sold  by  the  mortgagee  than 
liis  mortgage  covers  does  not  affect  the  validity  of  the  sale  as  to  so 
much  of  the  land  as  he  was  entitled  to.^ 

Where  a  statute  declares  a  note  tainted  by  usury  to  be  wholly 
void,  a  sale  under  a  power  in  a  mortgage  or  trust  deed  securing 
such  note  confers  no  title  when  the  mortgagee  or  beneficiary  be- 
comes the  purchaser.*  The  sale  would  be  a  conclusive  bar  only  in 
favor  of  a  hoyid  fide  purchaser  without  notice,  which  a  party  to  the 
usurious  contract  could  not  be. 

1900.  Under  the  English  practice  of  conveyancing,  it  is  gen- 
erally provided  in  the  mortgage  deed  that  the  purchaser  shall  not 
be  bound  to  inquire  whether  any  default  has  been  made,  or  whether 
any  money  remains  due  upon  the  security,  or  otherwise  as  to  the 
propriety  or  regularity  of  the  sale  ;  and  under  such  a  provision  the 
purchaser  acquires  a  good  title  by  a  sale  made  in  good  faith,  even  if 
nothing  remains  due  upon  the  mortgage.^ 

1901.  Covenant  for  further  conveyance.  —  Sometimes  a  cov- 
enant is  inserted  in  the  mortgage  that  the  mortgagor  shall,  in  case 
of  a  sale  under  the  power,  make  such  further  conveyance  as  may  be 
necessary  for  better  effecting  it,  or  will  concur  or  join  in  the  sale. 
A  covenant  of  this  sort  is  for  the  benefit  of  the  mortgagee  with 
whom  it  is  made,  and  not  of  the  purchaser.^  As  a  matter  of  prac- 
tical conveyancing,  this  is  an  important  provision,  as  it  often  enables 
the  mortgagee  to  obtain  a  release  which  will  bar  all  inquiry  into 
irregularities  attending  the  sale. 

1902.  An  invalid  sale  may  operate  as  an  assignment  of  the 
mortgage  under  the  principle  of  subrogation."  If  the  sale  under 
the  power  is  subsequently  declared  void  for  any  irregularity,  a  pur- 
chaser who  has  paid  the  purchase-money  is  subrogated  to  the  rights 

1  Redmond   v.  Packenliam,  66   111.   434.  ^  Clay  v.  Sharpe,  18  Ves.  346;  Corder  u. 

And  see  per  Cowen,  J.,  in  Cameron  v.  Ir-  Morgan,  18  Ves.  344. 

win,  .5   Hill,  272  ;  Wood  v.  Colviu,  2  Hill,  '  Holmes  u.  Turner's  Falls  Co.  142  Mass. 

566,  38  Am.  Dec.  598.  590, 8  N.  E.  Rep.  046  ;  Dearualcy  v.  Chase, 

-  §  1921 ;  Chapin  v.  Billings,  91  111.  539.  136  Mass.  288;  Taylor  v.  A.  &  M.  Asso.  68 

8  Klock  V.  Kronkhitc,  1  Hill,  107.  Ala.  229;  John.son  v.   Sandhoff.  30  Minn. 

*  Penny  v.  Cook,  19  Iowa,  538  ;  Jackson  197,  14  N.  W.  Rep.  889  ;  Rogers  v.  Benton, 

V.  Dominick,  14  Johns.  435;  Hylandy.Staf-  39  Minn.  39,  38  N.  W.  Rep.  765,  12  Am. 

ford,  10  Barb.  558.  St.    Rep.  613;  Russell    v.  Lumber   Co.  45 

«  Dicker  v.  Angerstein,  24  W,  R.  844.  Minn.  376,  48  N.  W.  Rep.  3. 

767 


§  1902.]        POWER   OF   SALE   MORTGAGES   AND   TRUST   DEEDS. 

of  the  mortgagee  under  the  mortgage,  which  is  regarded  as  assigned 
to  him,  and  he  may  proceed  anew  to  foreclose,^  or  to  sell  under  the 
power.2  If  the  purchaser  has  subsequently  sold  the  property  by 
warranty  deed,  this  amounts  to  an  assignment  of  the  mortgage  to 
such  grantee,  who  of  course  has  the  same  right  to  foreclose.^  Under 
a  deed  of  trust,  the  purchaser  is  subrogated  to  all  the  rights  of  the 
beneficiary.*  A  trustee's  deed,  in  pursuance  of  sale  made  without 
notice,  passes  to  the  purchaser  the  legal  title,  and,  until  redemp- 
tion is  had,  enables  him  to  maintain  possession.^  And  so,  if  the  sale 
be  made  before  a  default,  the  trustee's  deed  confers  the  legal  title  in 
trust  for  the  benefit  of  the  grantor.'' 

A  purchaser  at  an  irregular  foreclosure  sale  obtains  all  the  rights 
of  the  mortgagee,  although  the  sale  and  conveyance  are  not  made 
by  the  mortgagee  himself,  but  by  an  officer  acting  under  a  statute 
regulating  sales  under  powers  in  mortgages.  The  statute  in  such 
case  becomes  a  part  of  the  mortgage,  and  a  sale  made  in  pursuance 
of  it  is  an  exercise  of  the  power  conferred  by  the  contract.''  "  The 
officer  who  sells  merely  stands  in  the  shoes  of  the  mortgagee  and 
represents  both  parties."  ^  ' 

If  the  purchaser  under  a  power  of  sale,  fearing  that  the  sale  was 
irregular,  causes  the  land  to  be  resold,  and  again  buys  it  in,  such 
second  sale  does  not  estop  him  from  asserting  the  validity  of  the 
first  sale.^ 

When  a  mortgagee  becomes  a  purchaser  at  his  own  sale,  and  the 
sale  is  void,  he  acquires  no  rights,  either  legal  or  equitable,  by  means 
of  the  sale.  The  parties  after  the  sale  stand  as  they  did  before  the 
ineffectual  form  of  sale  took  place  ;  and  all  the  costs  and  expenses 
attending  it  must  be  borne  by  the  mortgagee.^''    But  the  purchaser's 

1  §  1678  ;  Brown  i'.  Smith,  116  Mass.  108;  Dec.  95;  Bottineau  v.  ^tua  L.  Ins.  Co.  31 

Burns  y.  Thayer,  115  Mass.  89;  Johnson  v.  Minn.  125. 

Robertson,  34  Md.  165;  Gilbert  v.  Cooley,        *  Ingle  v.  Culbertson,  43  Iowa,  265. 
Walker   (Mich.),  494 ;  Jones  v.   Mack,  .53        ^  Wilson  v.  South  Park  Coram'rs,  70  III. 

Mo.  147  ;  Honaker  v.  Shough,  55  Mo.  472  ;  46  ;  Wormell  v.  Nason,  83  N.  C.  32. 
Russell  u.  Whitely,  59  Mo.  196;  Stackpole        ^  Chicago,  Rock  Island  &  Pacific  R.  R. 

u.    Robbins,    47    Barb.  212;    Robinson    v.  Co.  v.   Kennedy,   70  111.  350;    Koester  v. 

Ryan,  25  N.  Y.  320;  Clark  v.  Wilson,  56  Burke,  81  111.  436. 

Miss.  753,  758;  State  Bank  v.  Chapelle,  40        '  Hoffman  v.  Harrington,  33  Mich.  392. 
Mich.  447.  ^  Hoffman  v.  Harrington,  33  Mich.  392, 

-  Bottineau  v.  vEtna  L.  Ins.  Co.  31  Minn.  395,  per  Mr.  Justice  Campbell. 
125  ;  Brewer  v.  Nash,  16  R.  I.  458, 17  Atl.        ^  Ritchie  v.  Judd,  137  111.  453,  27  N.  E. 

Rep.  857,  quoting  text.  Rep.  682. 

3  Niles  V.  Ransford,  1  Mich.  338,51  Am.        i*  Queen  City  Perpetual  Building  Asso.  y. 


Price,  53  Md.  397. 


758 


THE   DEED    AND    TITLE.  [§§  1902  a,  1903. 

rights  as  mortgagee  enable  him  to  sell  again  under  the  power,  or  to 
foreclose  by  a  proceeding  in  equity.^ 

A  sale  made  by  a  person  without  authority  to  act  for  or  represent 
the  mortgagee  does  not,  of  course,  operate  as  an  assignment  of  the 
mortgage.^ 

A  mortgagee  who  takes  possession  of  the  mortgaged  premises 
under  a  void  sale  is  liable  for  the  rents  and  profits  received  by  him 
upon  a  subsequent  redemption  by  the  mortgagor.  But  to  make  him 
liable  he  must  have  had  actual  possession,  or  such  a  possession  as 
would  give  him  the  enjoyment  of  the  profits.^  Such  mortgagee 
would  also  be  liable  for  waste  committed  or  suffered  by  him  while 
in  actual  possession  of  the  premises.  But  if  he  is  not  in  possession, 
and  the  injury  done  was  not  any  act  of  his,  or  one  which  he  could 
prevent,  as,  for  instance,  a  destruction  of  buildings  by  the  Confed- 
erate army,  he  is  not  responsible  for  it.* 

If  a  third  party  who  has  purchased  under  an  invalid  sale  enters 
into  possession,  and  makes  valuable  improvements  upon  the  prop- 
erty, he  is  entitled  to  compensation  therefor.^ 

If  the  mortgage  debt  has  been  paid  before  the  sale,  the  purchaser 
obtains  at  most  only  a  bare  legal  title,  which  he  will  hold  for  the 
benefit  of  the  owner  of  the  estate  ;  and  in  States  where  payment 
alone,  whenever  made,  is  sufficient  to  revest  the  title  in  the  mort- 
gagor, the  sale  would  be  void.^ 

1902  a.  The  purchaser  at  the  sale  may  recover  possession  of 
the  land  by  an  action  at  law  ;  and  it  is  no  defence  to  such  action 
by  the  mortgagee  that  the  purchaser  reconveyed  the  land  to  him, 
and  that  the  purchaser  acted  in  the  purchase  as  the  mortgagee's 
agent,  for  the  mortgagee  is  entitled  to  recover  upon  the  strength  of 
his  title  as  mortgagee."  It  is  not  incumbent  upon  the  purchaser  to 
show  that  he  whs  not  the  agent  of  the  mortgagee  in  making  the 
purchase.  He  need  only  prove  the  regularity  and  fairness  of  the 
sale  by  a  preponderance  of  the  evidence.^ 

1903.  The  remedy  against  a  purchaser  who  declines  to  com- 

1  Morse  v.   Byam,  55  Mich.  594,  22  N.  6  Furguson  v.  Coward,  12  Heisk.  572. 

W.  Rep.  54.  '  Wittkowski  v.  Watkins,  84  N.  C.  456. 

•^  Hayes  v.  Lienlokken,  48  Wis.  509,  4  N.  «  McMillan  v.  Baxley,  112  N.  C.  578, 16 

W.  Rep.  584.  S.  E.  Rep.  845. 

3  Bigler  v.  Waller,  14  Wall.  297.  lu  Mississippi  a  purchaser  at  a  trustee's 

*  Bigler  v.  AValler,  14  Wall.  297.  sale  under  a  power  may  maintaiu  an  action 

^  Queen  City  Perpetual  Building  Asso.  by   summary  proceedings  for  unlawful  de- 

V.  Price,  53  Md.  397  ;  Mickles  v.  Dillaye,  17  tainer  to  obtain  possession  wrongfully  with- 

N.  Y.  80;  Wetmore  u.  Roberts,  10  How.  Pr.  held   by    the    mortgagor.     Code,   §    2645; 

51 ;  Higginbottom  v.  Benson,  24  Neb.  461,  Marks    v.   Howard,  70   Miss.  445,    12   So. 

39  N.  E.  Rep.  418,  8  Am.  St.  Rep,  211.  Rep.  145. 

759 


§  1904.]        POWER   OF   SALE   MORTGAGES   AND   TRUST   DEEDS. 

plete  a  purchase  made  at  a  sale  regularly  conducted  may  be  either 
by  a  bill  in  equity  for  a  specific  performance,  or  a  suit  at  law  for 
damages.^  If  the  former  remedy  be  waived,  the  property  should  be 
sold  again  ;  and  if  it  brings  a  less  sum,  the  former  purchaser  is  liable 
at  law  for  the  difference  in  price,  and  for  the  expenses  attending 
the  resale.^  If  the  purchaser  is  unable  to  complete  the  purchase, 
being  financially  worthless,  the  mortgagee  may  sell  the  property 
again  under  the  power  ;  and,  having  acted  in  good  faith,  and  notified 
a  surety  on  the  mortgage  note  of  all  the  proceedings  attending  the 
sales,  the  mortgagee  may  recover  of  him  a  deficiency  after  the  sale. 
The  mortgagee  in  such  case  need  not  bring  a  bill  for  specific  per- 
formance of  the  contract  of  purchase.^ 

It  is  a  sufficient  excuse  for  the  purchaser's  declining  to  complete 
his  purchase  that  the  auctioneer  offered  the  propei-ty  free  of  incum- 
brances, and  the  purchase  was  made  on  that  understanding,  at  the 
full  value  of  the  property,  when  in  fact  the  property  was  incum- 
bered by  prior  mortgages  or  liens,  which  were  not  removed  before 
the  tendering  of  a  deed.^  In  such  case  the  purchaser  is  entitled  to 
recover,  in  an  action  for  money  had  and  received,  the  amount  of  a 
deposit  made  in  accordance  with  the  terms  of  sale.^ 

But  the  bidder  at  the  sale  is  not  bound  by  his  bid  unless  there 
was  a  memorandum  of  sale  signed  by  him,  or  by  the  auctioneer 
acting  as  the  agent  of  both  parties.^ 

XIII.    Tlie  Affidavit. 

1904.  Neglect  to  make  and  file  an  affidavit  of  sale  does  not 
invalidate  it.  In  Massachusetts,  where  a  statute  provides  that  the 
mortgagee,  in  case  he  sells  without  a  decree  of  court,  shall,  within 
thirty  days  after  selling  the  property  in  pursuance  of  the  power, 
file  a  copy  of  the  notice  and  his  affidavit,  setting  forth  his  acts  in 
the  premises  fully  and  particularly,  in  the  registry  of  deeds,'^  it  is 
held  that  the  sale  is  good,  and  the  title  passes  without  complying 
with  this  provision,  which  is  regarded  only  as  directory,  and  not 
precluding  other  evidence  of  the  execution  of  the  power  of  sale.^ 

1  Sherwood  v.  Saxton,  63  Mo.  78,  and  ghan  r.  O'Brien,  136  Mass.  378;  Schaeffer 
cases  cited.     See  §  1680.  v.  Bond,  70  Md.480,  17  Atl.  Rep.  375. 

2  Dover  v.  Kennerly,  38  Mo.  469;  Gard-        ^  Callaghan  v.  O'Brien,  136  Mass.  378. 
ner  v.  Armstrong,  31  Mo  .535.  ^  Cook  i;.  Hilliard,  9  Fed.  Rep.  4.     As  to 

3  Fall  River  Sav.  Bank  v.  Sullivan,  131.  necessity  of  such  memorandum,  see  Burke 
Mass.  .'J37;  Wing  ;;.  Hayford,  124  Mass.  v.  Haley,  7  111.  614;  Doty  i;.  Wilder,  15  111. 
249  ;  Hood   v.  Adams,  124  Mass.  481,  26  407. 

Am.  Rep.  687.  ^  G.  S.  ch.  140,  §  42. 

4  Mayer   r.  Adrian,  77  N.  C.  83;  Calla-        8  pjeld     v.    Gooding,    106    Mass.    310; 

Learned  v.  Foster,   117  Mass.  365;  Burns 

760 


THE   AFFIDAVIT.  [§  1905. 

Under  a  statute  requiring  an  affidavit  of  the  publication  of  the 
notice  of  sale  to  be  made  by  the  printer  of  the  newspaper,  an  affi- 
davit by  one  who  states  that  he  is  the  publisher  of  the  paper  is 
sufficient,  as  the  publisher  and  printer  are  presumably  the  same.^ 
Neither  the  affidavit  nor  its  record  are  necessary  to  the  validity  of 
the  purchaser's  title.  If  the  affidavit  omits  to  state  that  the  no- 
tice was  published  once  in  each  week,  and  the  paper  in  which  it  was 
published  is  erroneously  stated,  the  fact  that  the  notice  was  properly 
published  may  be  otherwise  proved.'-^  And  if  there  be  no  affidavit 
at  all,  the  publication  of  the  notices  and  the  circumstances  of  the 
sale  may  be  proved  by  common  law  evidence.^ 

In  New  York  it  is  also  held  that  the  affidavits  of  publication  and 
affixing  notice  of  sale  are  sufficient  to  pass  the  title  without  being 
recorded,^  The  fact  of  publication  may  also  be  shown  by  proof  in- 
dependent of  the  affidavit.  The  making,  filing,  and  recording  of 
affidavits  provided  for  by  statute  are  not  in  the  exercise  of  the  power 
of  sale  contained  in  the  mortgage,  which  must  be  strictly  pursued  ; 
but  they  are  the  mere  evidences  of  the  due  exercise  of  such  power, 
prescribed  for  the  benefit  of  the  purchaser  under  the  power,  and  to 
perfect  his  title  and  perpetuate  the  evidences  of  it.  The  power  is 
fully  exercised  when  the  sale  has  been  regularly  and  duly  made  pur- 
suant to  notice  published  and  served  as  required  by  law.^ 

Yet  it  has  been  held  that  if  the  mortgage  provide  that  an  affida- 
vit of  the  proceedings  under  the  power  should  be  recorded  in  a  cer- 
tain county  within  one  year,  and  the  affidavit  be  not  made  and  filed 
within  such  time,  the  sale  will  be  treated  as  a  nullity.^ 

1905.  In  order  that  the  affidavit  may  have  the  force  of  pre- 
sumptive evidence  of  the  facts  therein  stated,  it  should  be  made 
within  a  reasonable  time  after    the  sale.     If  made  seven  or  eight 

V.  Thayer,  115  Mass.  89.     In  tlie  first  case  i  Meuard  v.  Crowe,  20  Minn.  448  ;  Bunce 

cited,  Mr.  Justice  Colt  said:  "The  provi-  i-.  Reed,  16  Barb.  347  ;   Sharps.  Daugney, 

sion    is   intended   to   secure    the   preserva-  3.3  Cal.  513. 

tion  of  evidence  that  the  conditions  of  the  -  Golcher  v.  Brisbin,  20  Minn.  453. 
power  of  sale  named  in  the  deed  have  been  ^  Arnot  v.  McClure,  4  Den.  41  ;  Wilker- 
complied  with.     It  is  for  the  protection  of  son  v.  Allen,  67  Mo.  502. 
those  claiminj,'  under  the  sale,  and  to  pre-  *  Tuthill   v.  Tracy,  31  N.  Y.  157  ;  How- 
vent  litigation.      The  title   passes  by   the  ard  y.  Hatch,  29  Barb.  297  ;  Frinkw.  Thomp- 
sale  and  deed,  and  immediately  vests  in  the  son,  4  Lans.  489.     See  Mowry  v.  Sanborn, 
purchaser.   It  was  not  the  intention  to  make  68  N.  Y.  153,  where  the  history  of  the  legis- 
it  subject   to  a  condition  subsequent,   and  lation  on  tliis  subject  is  given, 
liable  to  be  defeated   by  a   failure  of    the  ^  Mowry  r.   Simborn,   72   N.  Y.  534,  re- 
mortgagee  to  perform  an  act  wliich  must  versing  11  Hun,  545. 
follow  the  conveyance  in  point  of  time,  and  *^  Smith  v.  Provin,  4  Allen,  516. 
thus  add  to  the  conditions  prescribed  by  the 
mortgagor  in  the  deed." 

761 


§  1906.]       POWER   OF   SALE   MORTGAGES   AND   TRUST   DEEDS. 

years  after  the  sale,  it  is  not  such  evidence.^  To  have  the  effect  of 
presumptive  evidence,  moreover,  the  affidavit  must  show  that  the 
requirements  of  law  in  regard  to  the  sale  have  been  complied  with  ; 
as,  for  instance,  that  service  of  notice  has  been  made  in  the  manner 
prescribed.^  Even  when  the  affidavits  are  presumptive  evidence  of 
the  facts  required  to  be  stated  in  them,  they  may  be  controverted  by 
the  mortgagor,  or  those  claiming  under  him.^  Where  the  affidavits 
may  be  filed  at  any  time,  it  would  seem  that  defects  in  the  original 
affidavits  may  be  corrected  by  new  affidavits.^  But  defects  in  the 
affidavits  cannot  be  supplied  after  the  commencement  of  an  action 
in  which  they  are  material  for  the  support  of  the  title.  The  parties 
must  stand  on  the  affidavits  as  they  were  at  the  time  of  bringing 
the  suit.^ 

The  mortgagee  is  accountable  for  the  full  amount  bid  at  the  sale 
if  he  completes  it  by  a  conveyance,  whether  he  actually  receives  the 
purchase-money  or  not.  His  affidavit  need  not  state  the  rendering 
of  an  account,  or  the  disposition  that  has  been  made  of  the  purchase- 
money.^  Where  the  whole  estate  is  sold,  the  purchase-money  is 
properly  applicable  to  the  payment  of  any  prior  incumbrances  upon 
the  property,  as  well  as  the  mortgage  under  which  the  sale  is  made, 
so  far  as  it  will  go  ;  and  it  is  only  in  case  the  consideration  of  the 
sale  exceeds  the  amount  of  such  incumbrances  that  he  is  accountable 
for  a  surplus.  A  second  or  subsequent  mortgagee  is  not  estopped, 
by  the  recital  in  his  affidavit  of  sale  of  the  amount  for  which  the 
sale  was  made,  to  show  that  the  sale  was  in  fact  of  the  whole  es- 
tate, and  that  less  than  the  whole  amount  of  the  incumbrances  was 
received.^ 

XIV.   Setting  aside  and  waiving  Sale. 

1906,  A  mortgagee  or  trustee,  in  the  exercise  of  a  power  of 
sale,  must  act  fairly,  and  is  under  very  much  tiie  same  obligation  to 
other  parties  in  interest  as  a  trustee  in  other  cases.^     So  far  as  other 

1  Mundy  v.  Monroe,  1  Mich.  68.  ry  v.  Sanboin,  7  Hun, 380.  But  see 62  Barb. 

2  Mowry  v.  Sanborn,  65  N.  Y.  581.  An  223,  65  N.  Y.  581,  11  Hun,  545,  68  N.  Y, 
affidavit  on  information  and  belief  is  insuf-     153. 

ficient.  In  the  last  report  it  was  declared   that 

3  Arnot  V.  McClure,  4  Denio,  41  ;  Sher-  defects  in  an  affidavit  of  service  of  notice 
man  v.  Willett,  42  N.  Y.  146 ;  Mowry  v.  upon  the  mortgagor  might  be  supplied  by 
Sanborn,  62  Barb.  223,  7  Hun,  380,  68  N.  parol  evidence. 

Y.  153,  72  N.  Y.  534,  reversing  11  Hun,  545;  «  Childs  v.  Dolau,  5  Allen,  319. 

Maxwell  y.  Newton,  65  Wis.  261,  27  N.  W.  ^  Aldeu  v.  Wilkins,  117  Mass.  216. 

Rep.  31.  8  Matthie  v.  Edwards,  2  Coll.  465,  480. 

*  Bunce  v.  Reed,  16  Barb.  347.  "  I  apprehend,'' says  Vice-Cliancellor  Bruce, 

'''  Dwighty.  Phillips,  48  Barb.  116;  Mow-  "  that  a  mortgagee  having  a  power  of  sale 

762 


SETTING   ASIDE   AND   WAIVING   SALE. 


[§  1906. 


persons  are  interested  in  the  property  the  power  is  regarded  as  a 
trust,  and  the  mortgagee  is  treated  as  a  trustee  in  the  exercise  of  it. 
Fairness  and  good  faith  are  demanded  of  hini.^  Tlie  grounds  for 
setting  aside  a  sale  under  a  power  are  not  merely  those  which  are 
recognized  as  sufficient  for  setting  aside  a  foreclosure  sale  made  under 
proceedings  inequity;'-^  but  there  are  also  others  which  arise  from 
the  trust  relation  in  which  the  mortgagee  acts  in  conducting  the  pro- 
ceedings.^ 

But  only  the  mortgagor  or  some  one  claiming  under  him  can  im- 
peach a  sale  under  the  power.  It  cannot  be  called  in  question  by  a 
stranger.^ 

A  sale  will  not  be  set  aside  because  of  anything  pertaining  to  the 
original  terms  of  the  mortgage,  if  they  are  such  that  they  can  be 
legally  enforced.^  Thus  a  sale  will  not  be  set  aside  because  the 
terms  of  the  mortgage  loan  were  hard  and  the  interest  high.*^ 

But  a  sale  made  under  a  mortgage  which  is  void  for  want  of  any 

consideration  may  be  set  aside." 

caunot,  as  between  him  and  the  mortgagor,  of  sale  is  bound  to  the  observance  of  good 
exercise  it  in  a  manner  merely  arbitrary,  faith  and  a  suitable  regard  for  the  interests 
hut  is,  as  between  them,  bound  to  exercise  of  his  principal.  He  cannot  shelter  him- 
some  discretion,  not  to  throw  away  the  prop-  self  under  a  bare  literal  compliance  with 
erty,  but  to  act  in  a  prudent  and  business-  the  conditions  imposed  by  the  terms  of  the 
like  manner,  with  a  view  to  obtain  as  large  power.  He  must  use  a  reasonable  degree 
a  price  as  may  fairly  and  reasonably,  with  of  effort  and  diligence  to  secure  and  pro- 
due  diligence  and  attention,  be  under  the  tect  the  interests  of  the  party  who  intrusts 
circumstances  obtainable."  This  statement  him  with  the  power.  A  stranger  to  his  pro- 
of a  general  principle  is  undoubtedly  correct,  ceedings,  finding  them  all  correct  in  form, 
though  in  the  application  of  it  to  the  case  and  purchasing  in  good  faith,  may  not  be 
in  hand  the  Vice-Chancellor  was  subse-  affected  by  his  unfaithfulness.  But  when- 
quently  overruled  in  Jones  v.  Matthie,  11  ever  his  proceedings  can  beset  aside  with- 
Jur.  504.  In  Orme  v.  Wright,  3  Jur.  19,  out  injustice  to  innocent  third  parties,  it 
Lord  Langdale  said :  "  A  trustee  should  will  be  done  upon  proof  that  they  have  been 
use  all  the  means  in  his  power  to  get  the  conducted  in  disregard  of  the  rights  of  the 
fairest  and  best  price  for  the  property."  donor  of  the  power.     When  a  party  who  is 

1  Ellsworth  V.  Lockwood,  42  N.  Y.  89;  intrusted  with  a  power  to  sell  attempts, 
Jencks  v.  Alexander,  11  Paige,  619,  624.  also,  to  become  the  purchaser,  he  will  be 
See  Soule  v.  Ludlow,  3  Hun,  .503,  6  T.  &  C.  held  to  the  strictest  good  faith  and  the  ut- 
24 ;  Longwith  v.  Butler,  8  111.  32 ;  Weld  v.  most  diligence  for  the  protection  of  the 
Ilees,  48  111.  428,  437  ;  Waller  v.  Arnold,  rights  of  his  principal."  Montague  v. 
71  111.  350;  Grover  v.  Fox,  36  Mich.  461  ;  Dawes,  14  Allen,  369.  And  see  Hood  v. 
Equitable  Trust  Co.  v.  Fisher,  106  111.  Adams,  124  Mass.  481,26  Am.  Rep.  687; 
189;  Chappell'scase,  42  Md.  166  ;  Wicks  v.  Thompson  v.  Heywood,  129  Mass.  401; 
Westcott,  59  Md.  270;  Littell  v.  Grady,  68  Briggs  v.  Briggs,  135  Mass.  306. 

Ark.  584  ;  Webber  v.  Curtiss,  104  111.  309.  *  Wormell  v.  Nason,  83  N.  C.  32. 

2  See  Leet  v.  McMaster,  51  Barb.  236  ; 
Hubbell  V.  Sibley,  5  Lans,  51. 

•^  The  obligations  of  a  mortgagee  in  the 
exercise  of  the  power  are  forcibly  declared 
by  Mr.  Justice  Wells  of  Maj^sachusctts. 
'  One  who  undertakes  to  execute  a  power 


G  Neal  y.  Bleckley,  36  S.  C.468,  15  S.  E. 
Kep.  733. 

6  Robinson    v.   Amateur  Asso.    14  S.  C. 
148. 

7  Walker  v.  Carleton,  97  111.  582. 

763 


§  1907.]        POWER    OF   SALE   MORTGAGES    AND   TRUST   DEEDS. 

A  sale  will  not  be  set  aside  simply  upon  the  ground  that  at  the 
time  of  the  sale  the  property  was  incumbered  by  other  mortgage 
liens  and  by  judgment  liens,  especially  when  it  appears  that  there  is 
no  uncertainty  or  controversy  as  to  the  amounts  and  priorities  of  such 
liens. ^  But  it  is  incumbent  upon  the  mortgagee  or  trustee,  in  an- 
nouncing at  the  sale  the  amount  of  such  prior  liens,  to  see  that  his 
statement  is  approximately  accurate,  and  in  nowise  misleading.^  If 
a  mortgagee  at  the  sale  insists  upon  the  validity  of  a  chattel  mort- 
gage for  the  same  debt  of  machinery  attached  to  the  mortgaged  land, 
which  the  mortgagee  had  agreed  to  cancel,  leaving  the  machinery  as 
part  of  the  realty,  and  he  buys  at  the  sale,  the  mortgagor  may  have 
a  subsequent  sale  under  the  chattel  mortgage  set  aside.^ 

A  sale  conducted  in  entire  good  faith,  and  in  strict  compliance 
with  the  terms  of  the  power,  will  not  be  set  aside  merely  because 
the  result  of  the  sale  is  accidentally  a  hardship  upon  the  mortgagor, 
but  a  legitimate  result  from  his  contract;  thus  the  court  will  not 
set  aside  such  a  sale  because  there  was  only  one  bidder  at  the  sale 
and  the  property  was  sold  for  less  than  its  value.*  The  fact  that  the 
debtor  was  ill  at  the  time  of  the  sale  under  the  deed  of  trust,  and 
soon  afterwards  died,  is  not  a  ground  for  setting  aside  the  sale.^ 

1907.  Whether  a  sale  is  void  or  voidable  only  by  reason  of 
any  irregularity  depends  upon  the  nature  of  the  irregularity.  A 
sale  before  the  happening  of  the  condition  precedent  to  the  right  to 
sell  is  void.^  The  distinction  is  taken  that  when  a  power  directs  the 
doing  of  a  specified  thing  in  a  particular  manner,  and  there  has 
been  a  total  failure  to  comply  with  the  direction,  the  execution  of 
the  power  is  void.  Thus  a  sale  without  publication  of  notice  in  cer- 
tain newspapers  specified  in  the  power  w^as  held  void."  But  when 
the  mode  and  manner  of  the  notice  of  sale,  or  of  the  place  of  it,  is 
left  to  the  discretion  of  the  trustee,  and  it  appears  that  there  has 
been  an  honest  though  mistaken  exercise  of  his  judgment  in  respect 
to  these  matters,  the  sale  is  not  regarded  as  absolutely  void,  but  is 
voidable  only  at  the  election  of  the  parties  interested.^  The  bur- 
den is  upon  the  party  who  asks  a  court  of  equitj'  to  set  aside  a  sale, 

1  Lallance  v.  Fisher,  29  W.  Va.  512,  2  S.  *  Learned  v.  Geer,  139  Mass.  31,  29  N.  E. 

E.  Rep.  775.  Rep.  215. 

-  Wicks  V.  Westcott,  59  Md.  271.  5  Bowles  v.  Brauer,  89  Va.  466,  16  S.  E. 

3  Dohm  V.  Hasliin,  88  Mich.  144,  50  N.  Kep.  356. 

W.  Rep.  108.     The  insistence   at   the   sale  ^  pjerce  v.   Grimley,  77  Mich.  273,  43  N. 

of  the  validity  of  the  chattel  mortgage,  and  W.  Rep.  932. 

the  threat  to  foreclose  it,  might  well  deter  ">  Bigler  v.  Waller,  14  Wall.  297. 

the  mortgagor  from  bidding   at   the   sale.  ^  Ingle  v.  Culbertson,  43  Iowa,  265,  273. 
This  was  evidently  what  the  mortgagee  in- 
tended, and  his  object  was  accomplished. 

764 


SETTING   ASIDE   AND    WAIVING   SALE.      [§§  1908,  1909. 

on  the  ground  that  it  was  not  duly  advertised  and  properly  made, 
to  establish  such  ground  by  satisfactory  proof.^  And  so,  if  the  ob- 
jection to  the  sale  is  that  the  mortgagee  without  authority  in  the 
mortgage  or  otherwise  became  the  purchaser,  so  long  as  such  sale 
stands,  and  no  affirmative  legal  steps  are  taken  to  avoid  it,  such  pur- 
chaser must  be  regarded  as  the  owner  of  the  land.^ 

The  sale  is  voidable  only  upon  proceedings  by  the  mortgagor,  or 
some  one  claiming  under  him,  taken  within  a  reasonable  time  after 
the  sale. 

Where  by  statute  a  mortgagee  is  authorized  to  purchase  at  his 
own  sale  fairly  and  in  good  faith,  his  sale  to  himself  will  be  set 
aside  where  it  appears  that  the  mortgagee  instituted  and  con- 
ducted the  foreclosure  proceedings,  not  for  the  purpose  of  securing 
his  pay,  but  for  the  purpose  of  securing  title  to  the  land  without  the 
mortgagor's  knowledge  ;  that  he  selected  a  newspaper  published  in 
another  city  for  the  publication  of  his  notice,  and  thereby  succeeded 
in  keeping  probable  or  possible  bidders  and  the  mortgagors  in  igno- 
rance of  the  fact  of  foreclosure  ;  that  he  purposely  refrained  from 
asking  for  the  money  due  him  ;  that  he  discouraged  at  least  one  pos- 
sible bidder  by  telling  him  that  he  thought  there  was  nothing  in  it, 
and  that  he  would  have  to  bid  it  off  himself  to  get  his  money  ;  that 
he  swelled  the  amount  of  the  claim  in  his  notice  by  including  the 
principal,  which  was  not  yet  due,  and  by  including  also  a  solicitor's 
fee,  when  his  alleged  employment  of  a  solicitor  was  merely  nominal; 
that  he  made  no  effort  to  obtain  a  bidder,  but  bid  off  the  property 
at  about  one  sixth  of  its  real  market  value,  and  much  less  than  he 
himself  knew  was  its  true  value.^ 

1908.  When  the  owner  of  the  equity  of  redemption  becomes 
bankrupt,  and  foreclosure  proceedings  are  subsequently  instituted 
in  a  state  court  against  the  objection  of  the  assignee,  or  an  attempt 
is  made  to  foreclose  by  a  sale  under  a  power,  the  proceedings  are 
void  unless  made  with  leave  of  the  bankrupt  court.^  But  the  fact 
that  a  subsequent  mortgagee  is  a  bankrupt  is  no  objection  to  the 
execution  of  a  power  of  sale  in  a  prior  mortgage.^ 

1909.  Allowing  property  to  be  sacrificed.  —  A  mortgagee  with 
power  to  sell,  or  holding  under  an   absolute  conveyance,  must  sell 

1  Lallance  v.  Fisher,  29  W.  Va.  512,  2  *  Hutchings   v.   Muzzy    Iron    Works,    6 

S.  E.  Kep.  775.     See  §§  1830,  1895.  Chicago  L.  N.  27  ;   hi  re  IJrinkniiin,  7  N. 

-  American  Mortgage  Co.  i'.  Turner,  95  Hank.  R.  421  ;    Mackubin  v.  Boarman,  54 

Ala.  272,  11  So.  Hep.  211.  Md.  384 ;  §§  1231-1236. 

3  Newman  v.  Ogden,  82  Wis.  53,  51   N.  &  Long  v.  Rogers,  6  Biss.  416. 
W.  Rep.  1091,  partly  in  the  words  of  Wins- 
low,  J. 

765 


§  1910.]       POWER   OF   SALE   MORTGAGES   AND   TRUST   DEEDS. 

fairly  and  for  the  best  price  he  can  obtain.  He  has.  no  right  to  sell 
for  a  price  sufficient  to  pay  his  claim  without  reference  to  the  value 
of  the  property.  A  purchaser  who  knows  that  the  mortgagee  is 
sacrificing  the  property  for  a  small  fraction  of  its  value  is  not  an 
innocent  purchaser,  and  will  only  occupy  the  position  of  an  assignee 
of  the  mortgage  debt.^  If  a  trustee  permits  property  to  be  sacrificed 
by  a  sale  for  a  small  fraction  of  its  value,  as  where  property  worth 
from  $5,000  to  $8,000  is  sold  for  $1,000,  the  sale  will  be  set  aside 
on  timely  application.^ 

But  where  property  sells  for  two  thirds  of  its  value,  and  the  sale 
is  unattended  by  fraud,  the  inadequacy  of  price  does  not  authorize 
the  setting  aside  of  the  sale.^ 

When  the  notices  provided  for  by  the  power  have  been  properly 
given,  and  there  is  no  fact  underlying  the  formal  proceedings  show- 
ing bad  faith  on  the  part  of  the  mortgagee,  the  mortgagor  cannot 
have  relief  from  the  sale,  although  through  his  own  mistake  or  neg- 
ligence he  failed  to  attend  the  sale  or  to  protect  his  interest.  A 
court  of  equity  will  not  open  a  sale  for  any  such  reason.^ 

Not  only  is  the  mortgagee's  misconduct  in  conducting  the  sale  a 
ground  for  setting  the  sale  aside,  but  it  may  be  also  a  ground  for  an 
action  at  law  by  the  mortgagor  against  the  mortgagee  for  loss  sus- 
tained by  such  misconduct.  Thus  a  mortgagor  who  has  conveyed 
his  equity  of  redemption,  and  who  after  a  sale  under  the  power  is 
obliged  to  pay  a  deficiency,  may  maintain  an  action  at  law  against 
the  mortgagee  to  recover  a  loss  sustained  through  the  misconduct  of 
the  latter  in  so  conducting  the  sale  that  the  mortgagor  was  obliged 
to  pay  a  deficiency.^ 

1910.  The  sale  is  avoided  by  a  secret  arrangement  to  pre- 
vent competition.  Every  person  interested  in  the  equity  of  re- 
demption has  a  right  to  claim  that  the  sale  shall  be  made  fairly, 
and  with  the  advantage  of  such  competition  as  the  sale  would 
ordinarily  command.  A  secret  arrangement  between  the  mort- 
gagee and  a  person  interested  in  buying  the  property,  whereby 
competition  is  prevented,  avoids  the  sale ;  as  where  by  such  ar- 
rangement  the  notice  of    the  sale  was    published  in  a  newspaper 

1  Rnnklei'.  Gaylord,  1  Nev.  123.     In  this    creditor  and  of  the  auctioneer."     And  see 
case  the  price  obtained  was  about  a  third  of    Meath  v.  Porter,  9  Heisk.  224. 

the  value  of  the  estate,  and  five  months'  rent  ^  Weld  v.  Rees,  48  III.  428.     See  Klein 

of  it  was  sufficient  to  pay  the  debt.  v.  Glass,  53  Tex.  37. 

2  Vail  V.  Jacobs,  62  Mo.  130,  per  Sher-  *  King  f .  Bronson,  122  Mass.  122;  Weld 
wood,  J.    "  Neither  the  law  nor  the  parties  v.  Rees,  48  111.  428. 

intend  that  the  trustee  shall  be  a  nose  of        ^  Fenton  v.  Torrey,  133  Mass.  138. 
wax,  a  mere  figure-head,  in  the  hands  of  the 

766 


SETTING   ASIDE   AND   WAIVING   SALE.  [§  1911. 

which  did  not  circulate  in  the  region  where  the  mortgaged  prem- 
ises were,  and  the  sale  was  fixed  at  an  unreasonably  early  hour 
in  the  morning,  and  the  sale  was  persisted  in  when  a  due  re- 
gard to  the  interest  of  the  debtor  required  a  postponement. ^  On 
this  ground  a  person  claiming  under  the  mortgagor  was  allowed  to 
redeem  after  a  sale  made  while  an  injunction  against  it  was  in 
force,  under  an  arrangement  between  the  mortgagor  and  the  per- 
son who  procured  the  injunction  that  the  sale  should  be  made, 
and  that  he  should  bid  off  the  property  at  a  certain  price,  and 
the  injunction  suit  should  be  dismissed.^  A  sale  was  ield  fraud- 
ulent and  void  Avhere  the  assignee  of  the  mortgage  acting  as  auc- 
tioneer seeing  the  owner  of  the  equity  approaching,  immediately 
knocked  down  the  property  to  his  own  brother  in  order  to  prevent 
competition.^ 

If  an  agent  of  the  mortgagee  acting  under  the  power  in  making 
the  sale  has  previously  agreed  with  the  purchaser  to  furnish  half  of 
the  purchase-money  and  divide  the  profits,  the  sale  is  a  fraud  upon 
both  the  mortgagor  and  mortgagee.* 

The  burden  of  proof  is  upon  the  party  charging  fraud  and  collu- 
sion between  the  buyer  and  the  seller  under  a  power.^ 

A  secret  agreement  between  the  purchaser  and  the  mortgagee 
made  before  the  sale,  to  the  effect  that  the  former  should  bid  a  cer- 
tain sum,  and  that  he  should  have  it  at  that  price,  no  matter  what 
any  one  else  might  bid,  does  not  enable  the  purchaser  to  avoid  a  sale 
made  to  him  at  that  price,  if  it  appears  that  there  was  no  puffing, 
that  his  bid  was  the  highest  bid  offered,  and  that  no  one  objected  to 
the  price  at  which  the  property  was  sold. ^ 

1911.  Any  fraud  or  deception  practised  upon  the  owner  of 
the  mortgaged  premises,  in  consequence  of  which  he  has  lost  his 
rights,  is  sufficient  ground  for  setting  aside  the  sale."  The  power 
of  sale  in  a  mortgage  is  a  trust  power,  so  far  as  it  relates  to  the 
interests  in  the  property,  or  in  the  proceeds  of  it  above  the  amount 

1  Thompson  v.  Heywood,  129  M;iss.  401.  equally  shared   by   the   purchaser   himself. 

2  See  Mapps  v.  Sharpe,  32  111.  13.  He  should  not  be  allowed  to  avail  himself 
^  Jackson  u.  Crafts,  18  Johns.  110.  of  his  own  wrong,  in  the  absence  of  any 
■*  Mann  ?;.  Best,  62  Mo.  491.  deceit  practised  on  him. 

s  Bush  V.  Sherman,  80  111.  160;  Munn  v,  '  Banta  v.  Maxwell,   12    How.  Pr.  479; 

Burges,  70  III.  604.  Murdock  v.  Empie,  19  How.  Pr.  79;  Fer- 

^  Gross  V.  Jancsok,  10  N.  Y.  Supp.  541.  rand  v.  Clay,  1  Jur.  1G5;  Soule  v.  Ludlow, 

The  evidence  showed  that  the  property  was  6  T.  &  C.  24,  3   Hun,  503;  Leet  v.  McMas- 

fairly  worth  more  than  the  price  for  which  ter,  51  Barb.  236  ;  Culbertsou  v.  Young,  50 

it  sold.     The  rascality  of  the  understanding  Mich.  190;  Equitable  Trust  Co.  v.  Fisher, 

which  defendant  claims  was  made  with  the  106  111.   189;  Webber  v.  Curiiss,    104    111. 

mortgagee's  attorney,  by  which  he  was  to  309  ;  Loeber  v.  Eckes,  55  Md.  1  ;  Long  v. 

get  the  property  at  a  stipulated  price,  was  McGregor,  65  Miss.  70,  3  So.  Kep.  240. 

767 


§  1912.]        POWER   OF   SALE   MORTGAGES   AND   TRUST   DEEDS. 

due  the  mortgagee  ;  and  any  collusive  arrangement  between  the 
mortgagee  and  a  third  person,  so  to  execute  the  power  as  to  deprive 
the  owner  of  the  equity  of  redemption  of  bis  rights  by  keeping  the 
knowledge  of  the  sale  from  him,  or  by  preventing  a  fair  competi- 
tion at  the  sale  and  enabling  a  purchaser  to  obtain  the  premises  at 
a  price  below  their  value,  will  avoid  the  sale.^ 

If  the  owner  of  the  land  be  insane,  and  the  mortgagee  knowing 
the  fact  buys  the  property  for  less  than  half  its  value,  the  sale 
should  be  set  aside  as  fraudulent  and  void  ;  and  a  purchaser  from 
the  mortgagee  having  the  same  knowledge  has  no  better  right  to 
hold  the  property  than  the  mortgagee  himself.^ 

A  sale  under  a  power  was  set  aside  where  the  mortgagee  filed  a 
bill  in  equity  to  foreclose,  making  a  junior  mortgagee  a  party  de- 
fendant, and  pending  this  suit,  to  which  the  junior  mortgagee  an- 
swered, the  first  mortgagee  sold  under  the  power  of  sale.  The 
resort  to  equity  to  foreclose  the  mortgage  had  a  tendency  to  lull 
the  junior  mortgagee  into  a  false  security  in  regard  to  any  sale 
under  the  power. ^ 

The  fact  that  one  of  two  joint  mortgagors,  upon  the  refusal  of 
the  other  to  pay  part  of  an  instalment  due,  refuses  to  pay  his  part 
and  suggests  a  sale  under  the  power,  is  no  evidence  of  his  fraudu- 
lently procuring  a  foreclosure  of  the  mortgage.* 

1912.  The  conduct  of  the  purchaser  at  the  sale  may  avoid 
it ;  ^  as  where  he  expostulates  with  a  rival  bidder,  informing  him  of 
his  losses,  and  telling  him  that  on  account  of  them  he  ought  not  to 
bid  against  him,  and  thereby  causes  the  bidder  to  withdraw,  and 
obtains  the  land  at  a  price  much  less  than  its  value,  the  sale  will  be 
invalid  as  against  a  subsequent  mortgagee  who  seeks  to  redeem.^ 
But  while  the  mortgagee  or  trustee  in  making  the  sale  must  do 
nothing  to  pi-event  competition,  or  to  deter  bidding,  it  is  his  right 
and  duty  to  state  what  the  property  is  that  is  offered  for  sale,  and 
wdiat  liens  it  is  subject  to.  Thus  a  junior  mortgagee  in  making  a 
sale  has  the  right,  for  his  own  protection,  to  give  notice,  at  the  time 
of  the  sale,  of  other  liens  on  the  property,  and  of  the  estate  which 
is  offered  for  sale."     A  combination   by  the  purchaser  with  other 

1  Jencks  v.  Alexander,  11  Paige,  619.     In  249.     And  see  Funk  v.  McReynolcis,  33  111. 

this  case,  Walworth,  Chancellor,  said  :  "It  481  ;  Warrick  v.  Hull,  102  111.  280. 

is  impossible  to  wink  so  hard  as  not  to  see  *  St.  Joseph  Manufacturing  Co.  v.  Dag- 

that  the  power  of  sale  was  executed  in  bad  j^ett,  84  111.  5.56. 

faith."    Howard  v.  Ames,  3  Met.  308  ;  Nor-  »  Sugden  on  Vendors,  30. 

ton    V.    Tharp,   53    Mich.    146;   Pestel    v.  «  Feuner  f.  Tucker,  6  R.  I.  551. 

I'rimm,  109  111.  352.  7  Meyer  v.  Opperman,  76  Tex.  105,  13  S. 

-  Encking  v.  Simmons,  28  Wis.  272.  W.  Rep.  174. 

3  Kurd  V.  Case,  32  111.  45,  83  Am.  Dec. 

768 


SETTING   ASIDE   AND   WAIVING   SALE.  [§  1913. 

bidders  at  the  sale,  for  tlie  purpose  of  obtaining  the  property  at  a 
price  below  its  value,  will  also  invalidate  the  sale.^  Thus,  two 
mortgagees  collusively  agreed  to  sell  the  land  at  the  same  time,  but 
at  different  places,  and  to  buy  it  in  and  divide  the  profits.  The 
mortgagor  was  about  to  sell  the  land  at  private  sale  for  much  more 
than  enough  to  pay  both  mortgages.  One  of  the  mortgagees,  to  pre- 
vent such  sale,  went  to  the  mortgagor  and  offered  to  buy  in  the 
land  under  his  trust  deed,  to  pay  the  other  mortgage,  and  hold  the 
land  until  the  mortgagor  could  redeem.  The  mortgagor  consent- 
ing, the  mortgagee  bought  in  the  property  as  proposed,  and  after- 
wards refused  to  allow  the  mortgagor  to  redeem.  The  sale  was  set 
aside. ^ 

While  a  purchaser  who  is  guilty  of  any  fraud,  trick,  or  device, 
the  object  of  which  is  to  get  the  property  at  less  tlian  its  value,  will 
not  be  permitted  to  enjoy  the  fruits  of  his  purchase  so  obtained, 
yet  the  burden  of  showing  the  fraud  is  upon  the  person  setting  it 
up;  and,  to  justify  setting  aside  the  sale,  the  evidence  to  establish 
the  fraud  must  be  clear  and  convincing.^ 

An  agreement  between  a  mortgagee  and  a  prospective  buyer  by 
which  the  former  agrees  to  foreclose  and  the  latter  agrees  to  bid  at 
the  sale  the  full  amount  due  on  the  mortgage,  and  to  buy  up  certain 
conflicting  claims  to  the  land,  is  not  fraudulent  as  against  the  mort- 
gagor, in  case  it  contains  no  provision  that  the  land  shall  be  sold  to 
him  unless  he  is  the  highest  bidder.^ 

1913.  If  a  purchaser  buys  at  a  sale  under  a  power  with  know- 
ledge of  circumstances  sufficient  to  invalidate  the  sale,  as  that 
a  valid  tender  has  been  made  of  the  whole  amount  due  under  the 
mortgage,  he  thereby  becomes  a  party  to  the  transaction,  and  is  not 
protected  by  a  proviso  that  the  purchaser  need  make  no  inquiries. 
Such  knowledge  puts  him  in  the  same  situation  as  the  mortgagee  as 
to  the  validity  of  the  sale.^  He  is  chargeable  with  notice  of  defects 
and  irregularities  attending  the  sale.  He  is  chargeable,  too,  with 
knowledge  whether  proper  notice  of  the  sale  was  given,  and  whether 
the  sale  was  made  at  the  time  and  in  the  manner  required  by  the 
^lower.*^     But  the  rule  is   different   as  regards   remote   purchasers, 

1  Dover  v.  Kennedy,  44  Mo.  145,  148.  *  Ritchie  v.  JudJ,  137  111.  453,27    N.  E. 

-'  Long  V.  McGregor,  65  Mis.s.  70,  3  So.  Rep.  682. 

Rep.  240.  ^  Jenkins  v.  Jones,  2  Giff.  99.    See  Cran- 

3  Forrester  v.  Scovillc,  51   Mo.  268;  For-  ston  v.  Crane,  97  Mass.  459,  93  Am.  Dec. 

roster  v.  Moore,  77   Mo.  651  ;  Jackson   v.  106;  Chicago,  Rock  Island  &  Pacific  R.  R. 

Wood,  88  Mo    77;  Keiser  v.  Gammon,  95  Co.  v.  Kennedy,  70  111.350;  Grovery.  Hale, 

Mo.  217,  8  S.  W.  Rep.  377.  107  111.  638. 

6  Gunnell  v.  Cockcrill,  79  III.  79. 

VOL.  II.            49  769 


§§  1914,  1915.]      POWER   OF   SALE   MORTGAGES   AND   TRUST   DEEDS. 

■who,  having  no  notice  in  fact  of  any  irregularities,  will  be  protected 
as  innocent  purchasers.^ 

1914.  Purchase  by  agent  without  authority.  —  A  trustee,  in 
whose  name  a  mortgage  was  taken  to  secure  the  payment  of  the 
separate  claims  of  several  creditors  of  the  mortgagor,  has  no  author- 
ity to  bind  them  by  a  purchase  of  the  property  at  the  foreclosure 
:Sale,  made  in  good  faith  and  for  the  protection  and  joint  benefit  of 
all  of  them  ;  neither  can  a  majority  of  such  creditors  force  the 
others,  who  object  to  the  purchase,  to  enter  into  any  arrangement 
for  buying  the  lands  at  such  sale.  A  resale  of  the  property  will  be 
ordered  at  the  option  of  the  objecting  creditors.^ 

Whether  an  agent  of  the  mortgagee  for  the  sale  of  the  mortgaged 
property  under  a  power  is  authorized  to  purchase  for  the  mortgagee, 
where  no  express  authority  is  given,  is  a  question  for  the  jury.^ 

1915.  Mere  inadequacy  of  price  is  no  ground  for  vacating  a 
sale  if  it  was  fairly  conducted  in  every  respect,*^  unless  the  inade- 
quacy be  so  great  as  to  furnish  evidence  of  fraud.^  And  even  in  a 
State  where  the  sale  must  be  reported  to  the  court  and  confirmed, 
as  in  case  of  a  foreclosure  sale  in  equity,  the  inadequacy  of  price 
must  be  very  material  to  prevent  a  confirmation  of  it,  and  such  in 
fact  as  to  furnish  evidence  of  fraud  on  the  part  of  the  trustee.  A 
«ale  for  hali  the  estimated  value  of  the  property  has  been  held  not 
.to  be  such  inadequacy.^  This  circumstance,  however,  when  taken 
in  connection  with  others  attending  the  sale,  may  be  considered  suf- 
ficient in  the  sound  discretion  of  the  court  to  call  for  its  equitable 
interposition  and  the  setting  aside  of  the  sale.'''     A  sale  of  property 

1  Gunnell  v.  Cockerill,  79  111.  79;  Mc-  385;  Hoyt  r.  Pawtucket  Inst,  for  Savings, 
Hany  v.  Scheiik,  88  111.  357.  110  111.  390;    Corrothers  v.  Harris,  23  W. 

2  Bradley  f.  Tyson,  33  Mich.  337.  Va.  177;    Cleaver   v.  Green,  107  111.   67; 
8  Hood  I'.  Adams,  128  Mass.  207,  26  Am.    Dryden  v.  Stephens,  19  W.  Va.  1  ;  Mills  v. 

Rep.  687.  Williams,  16   S.  C.  593  ;  Maloney  v.  Webb 

4  Graffam  v.   Burgess,   117   U.   S.    180;  112  Mo.  575,  20  S.  W.  Rep.  683;  Kline  v. 

King  V.  Bronson,  122  Mass.  122;  Wing  v.  Vogel,  11  Mo.  App.  211  ;  Vail  v.  Jacobs,  7 

Hayford,  124  Mass.  249;  Learned  v.  Geer,  Mo.  App.  571,  62  Mo.  131,  21   S.  W.  Rep. 

139  Mass.  31,  29  N.  E.  Rep.  215;  Clark  v.  85;   Meyer  y.  Kuechler,  10  Mo.  App.  371  ; 

Simmons,   150  Mass.  357,  23  N.  E.  Rep.  Family  r.  Walker,  102  111.  617;  Kennedy 

108;    Landrum  v.  Union  Bank  of  Mo.  63  i-.  Dunn,  58  Cal.  339.     See  §  1670. 
Mo.   48;    Harnickeli  v.  Orndorff,  35  Md.        5  Robinson  v.  Amateur  Asso.   14   S.  C. 

341  ;  Horsey  v.  Hough,  38  Md.  130;  Con-  148;  Jenkins  v.  Pierce,  98  III.  646;  Loeber 

don  V.  Maynard,  71  Md.  601,  18  Atl.  Rep.  v.  Eckes,  55  Md.  1. 

957  ;    Klein  v.  Glass,  53  Tex.  37  ;  McNair        «  Lallance  v.  Fisher,  29  W.  Va.  512,  2 

V.  Pope,  100  N.  C.  404,  6  S.  E.  Rep.  234  ;  S.  E.  Rep.  775 ;    Bradford  v.  McConihay, 

Smith  I'.  Black,  115  U.  S.  308,  6  Sup.  Ct.  15   W.   Va.  732;    Maloney  v.  Webb,    112 

Rep.   50;    Hoodless  v.  Reid,  112  111.  105;  xMo.  575,  20  S.  W.  Rep.  683. 
Maxwell  v.  Newton,  65  Wis.  261,  27  N.  W.        "  Chilton  v.  Brooks,  69  Md.  584,  587,  16 

Hep.  31  ;  Laclede  Bank  u.  Keeler,  109  111.  Atl.  Rep.   273;    Condon   v.  Maynard,    71 
770 


SETTING   ASIDE   AND   WAIVING   SALE.  [§  1915. 

wortli  at  least  |8,500  for  |5,000  was  not  regarded  such  a  gross  in- 
adequacy of  price  as  to  authorize  equitable  interference  ;  but  when 
it  appeared  farther  that  the  sale  was  made  at  an  unusual  hour,  and 
that  only  two  bidders  were  present,  the  sale  was  set  aside,  although 
it  was  not  shown  that  the  property  would  have  brought  any  greater 
sum  had  it  been  sold  at  the  usual  hour  of  sale.^ 

If  the  mortgagee,  or  the  beneficiary  under  a  deed  of  trust,  has  ac- 
quired a  tax  title,  but  does  not  claim  to  hold  this  for  himself  but  for 
the  benefit  of  the  property,  and  afterwards  sells  under  the  power  for 
a  greatly  inadequate  price,  bidding  being  prevented  by  the  fact 
that  he  holds  the  tax  title,  the  sale  will  be  set  aside.^ 

The  owner  of  land  sold  under  a  power  of  sale,  who  attends  the 
sale  and  bids  upon  the  property,  and  allows  it  to  be  sold  to  another, 
will  not  be  permitted  years  afterwards,  when  improvements  have 
been  made  upon  it,  to  impeach  the  sale  on  account  of  inadequacy  of 
price.^ 

A  sale  by  a  trustee  under  a  trust  deed  will  not  be  set  aside  be- 
cause the  premises  were  sold  for  only  one  third  their  value,  the  pur- 
chaser being  a  stranger  to  the  transaction,  and  having  in  good  faith 
sold  the  premises  to  another  ;  nor  because  the  property  was  sold  in 
parcels  and  not  together;^  nor  because  the  trustee  requested  a  bid- 
der to  advance  his  bid  ;  ^  nor  because  the  trustee  should  have  ad- 
journed the  sale  in  view  of  the  small  attendance  and  inadequate  price 
bid.6  But  if  the  trustee  at  the  time  of  the  sale  had  knowledge  that 
the  creditor  was  willing  to  pay  five  times  the  amount  bid  at  the  sale, 
he  abuses  his  discretion  by  striking  the  property  off  at  such  bid,  and 
the  sale  will  be  set  asideJ  Objection  to  the  validity  of  the  sale 
comes  too  late  when  third  persons,  acting  in  good  faith,  have  ac- 
quired rights.^ 

Md.   601,   18  Atl.   Eep.  957;    Mahoney  y.  mortgagee's  agent,  who  arrived  at  the  place 

Mackubin,  52  Md.  357 ;  Casserly  v.  With-  of  sale  after  it  had  been  concluded  but  in 

erbee,  119  N.  Y.  522,  23  N.  E.  Rep.  1000;  time  for  a  sale  at  the  usual  hour,  was  pre- 

Hubbard  v.  Jarrell,  23  Md.  66 ;    Lalor  v.  pared    to    bid   the    whole   amount   of    the 

M'Carthy,  24  Minn.  417  ;  Reiser  u.  Gammon,  mortgage  debt,  though  the  sale  was  actually 

95  Mo.  217,  8  S.  W.  Rep.  377 ;  Hudgins  v.  made  for  about  a  sixth  part  of  the  debt. 
Morrow,  47  Ark.  515,  2  S.  W.  Rep.  104  ;        2  Martin  v.  Swofford,  59  Miss.  328. 
Fry  V.  Street,  44  Ark.  502.  ^  Watson  v.  Sherman,  84  111.  263. 

i  Stoffel  V.  Schroeder,  62  Mo.  147  ;  Chil-        *  Sternberg   v.    Valentine,    6    Mo.   App. 

ton  V.  Brooks,  69  Md.  584,  1 6  Atl.  Rep.  273.  176. 

In  Holdsworth  v.  Shannon,  113  Mo.  508,        ^  Swcnson  v.  Halberg,  1  Fed.  Rep.  444. 
21   S.  W.    Rep.    85,  a   sale  was   set   aside        "  Shine  v.  Hill,  23  Iowa,  264. 
where  it  appeared  that  it  was  made  before        ''  Meyer  v.  Jefferson  Ins.  Co.  5  Mo.  App. 

eleven  o'clock  in  the    morning,   when  the  245. 

custom    was   to    make    sales  between    one        ^  ghine  v.  Hill,  23  Iowa,  264. 
and   two  o'clock  in  the  afternoon,  and  the 

771 


§§  1916,  1917.]      POWER   OF   SALE   MORTGAGES   AND   TRUST   DEEDS. 

Where  by  statute  a  time  is  allowed  for  redemption  under  a  sale, 
,  mere  inadequacy  of  price  does  not  vitiate  the  sale,  because  the 
owner  of  the  equity  of  redemption  cannot  be  prejudiced,  inasmuch 
as  he  may  always  redeem  within  such  time  by  refunding  the  amount 
paid  with  interest,  according  to  the  statute.  It  is  only  his  failure  to 
do  this  that  can  occasion  him  any  loss.^ 

1916.  Sale  waived  by  extending  time  of  redemption.  —  If  a 
mortgagee  who  has  purchased  the  premises  at  a  foreclosure  sale  dur- 
ing the  year  allowed  for  redemption  agrees  with  the  mortgagor  to 
extend  the  time  of  payment  beyond  the  year,  and  in  accordance 
with  the  agreement  accepts  money  from  the  mortgagor,  the  sale  is 
thereby  rendered  ineffectual ;  and  the  mortgagee  cannot  afterwards 
rely  upon  the  sale  and  record  the  sheriff's  deed  as  being  of  any 
force.^  But  if  part  payments  are  made  and  received  after  the  sale, 
with  the  understanding  tiiat  the  whole  sum  necessary  for  that  pur- 
pose is  to  be  paid  within  the  year  allowed  by  statute,  they  do  not 
avoid  the  sale,  but  are  in  affirmance  of  it.^ 

A  foreclosure  may  be  opened  when  the  purchaser  has  agreed  with 
the  mortgagor  to  allow  him  to  redeem  the  estate  after  a  sale  under 
the  power;  or  a  specific  performance  of  the  agreement  may  be  de- 
creed.'* 

1917.  A  promise  to  allow  the  mortgagor  to  repurchase  does 
not  waive  the  sale.  A  casual  remark  by  a  purchaser  under  a  deed 
of  trust,  who  was  also  the  beneficiary  under  it,  and  connected  with 
the  family  of  the  maker  of  it,  that  he  only  wished  by  the  purchase 
to  secure  his  debt,  and  when  that  was  paid  he  intended  to  reconvey 
the  property,  does  not  open  the  sale  or  make  the  purchaser  a  trus- 
tee of  the  property.^  Nor  would  the  promise  of  a  mortgagee,  made 
at  the  time  of  his  purchase  at  his  own  sale  under  the  power,  that 
he  would  allow  the  mortgagor  to  repurchase,  without  other  evidence 
of  such  intention,  remit  them  to  their  former  relation,  so  that  the 
mortgagor  could  redeem  after  waiting  several  years  ;  but  the  mort- 
gagee's refusal  to  allow  such  redemption  within  a  reasonable  time 
might  be  evidence  of  such  fraud  in  the  purchase  by  the  mortgagee 
as  to  admit  the  mortgagor  to  his  right  of  redemption.^  Pending 
a  sale  under  trust  deed,  the  debtor  and  creditor  entered  into  nego- 
tiations for  a  settlement.  The  creditor  stated  that  he  wanted  his 
money  merely  and  not  the  land.     A  written  stipulation  was  pre- 

1  Cameron  v.  Adams,  31  Mich.  426.  v.   Mitchell,  7  Ohio  St.  387,  70  Am.  Dec. 

-  Dodge  V.  Brewer,  31  Mich.  227.  78. 

3  Cameron  v.  Adams,  31  Mich.  426.  5  Mansur  v.  Willard,  57  Mo.  347. 

♦  Orme  v.  Wright,  3  Jur.  19  ;  Lockwood  ^  Medsker  v.  Swaney,  45  Mo.  273. 

772 


SETTING   ASIDE   AND   WAIVING   SALE.      [§§  1918-1920. 

paved  by  their  attorneys,  and,  although  it  was  not  signed  by  the 
creditor,  it  was  understood  that  he  would  do  so,  and  tiiat  the  title 
would  be  purchased  by  him  at  the  sale,  and  held  only  as  security 
for  the  debt,  and  that  the  debtor  would  be  allowed  to  redeem.  The 
latter,  relying  upon  this  understanding,  did  not  attend  the  sale,  or 
procure  the  attendance  of  bidders,  and  the  land  was  sold  en  masse 
to  the  creditor,  although  it  was  divided  into  ten  lots,  and  consisted 
of  two  tracts,  fronting  on  different  streets,  and  was  worth  nearly 
four  times  the  price  for  which  the  creditor  bid  it  in.  When,  di- 
rectly after  the  sale,  the  debtor  found  the  sale  was  to  be  treated  as 
absolute,  his  right  to  redeem  denied,  and  the  collection  of  the  unpaid 
balance  enforced  by  vigorous  legal  proceedings,  he  at  once  filed  his 
bill  attacking  the  sale.     He  was  allowed  to  redeem.^ 

1918.  A  suit  for  a  second  instalment  does  not  open  foreclos- 
ure. When  a  mortgage  is  foreclosed  for  an  instalment  due,  and  a 
subsequent  suit  is  brought  to  recover  a  second  instalment,  such  suit 
does  not  open  the  foreclosure.  This  is  so  although  the  foreclosure 
was  made  by  taking  possession  of  the  premises  instead  of  selling 
them  ;  and  the  mortgagor  in  such  case  is  entitled  to  a  credit  on  the 
debt  of  the  value  of  the  mortgaged  property .^ 

1919.  Not  waived  by  subsequent  entry  to  foreclose.  —  A 
foreclosure  sale  under  a  power,  voidable  by  reason  of  the  mortga- 
gee's becoming  the  purchaser,  is  not  waived  or  opened  by  the  mort- 
gagee's subsequently  entering  in  the  presence  of  two  witnesses,  in 
accordance  with  the  statute,  for  the  purpose  of  foreclosure,  provided 
there  be  no  evidence  showing  an  intention  to  waive  or  abandon  the 
rights  acquired  by  the  sale.^ 

1920.  Waiver  by  agreement.  —  After  an  ineffectual  attempt  to 
foreclose  under  a  power  of  sale,  if  the  purchaser  waives  his  rights 
the  mortgagee  may  also  waive  the  sale,  and  proceed  anew  to  fore- 
close under  the  power,  or  by  suit  in  equity.^  But  if  the  sale  be 
regular  and  complete  in  all  respects,  it  would  seem  that  the  mort- 
gagor might  insist  upon  its  standing.  At  any  rate,  when  the  sale 
is  for  a  sum  sufficient  to  pay  the  mortgage  debt  and  expenses,  al- 
though the  mortgagee  be  himself  the  purchaser  at  the  sale,  he  can- 
not, by  refusing  to  execute  the  deed,  rescind  the  sale,  and  maintain 
an  action  upon  the  mortgage  note.^  He  is  bound  as  a  trustee  to 
execute  the  trust  with  due  regard  to  the  interests   of  the  mortga- 

1  Stinson  V.  Pepper,  47  Feil.  Rep.  676.  *  See  §  1265  ;  Atwater  i-.  Kininan,  Ilnrr. 

2  Wilson  V.  Wilson,  4  Iowa,  309.  (Mich.)  243. 

3  Learned  v.  Foster,  117  Mass.  365.  '^  Hood  v.  Adams,  124  Mass.  481,  26  Am. 

Rep.  687. 

773 


§§  1920  a,  1921.]  power  of  sale  mortgages  and  trust  deeds. 

gov,  or  others  having  any  interest  in  the  property,  or  liable  for  the 
mortgage  debt.  Having  himself  become  the  purchaser,  he  is  bound 
to  carry  out  and  complete  his  purchase  to  the  same  extent  as  any 
other  purchaser.  The  proper  performance  of  his  duty  as  purchaser 
is  as  imperative  upon  him  as  the  proper  performance  of  his  duty 
as  seller.  The  fact  that  he  unites  the  two  characters  in  his  own 
person  cannot  give  him  any  additional  rights;  on  the  contrary,  he 
is  held  to  a  stricter  accountability  when  he  undertakes  to  buy.^ 

A  foreclosure  is  waived  by  accepting  after  the  sale  a  payment 
of  money  to  be  applied  on  the  mortgage  debt.^  So,  also,  the  bring- 
ing of  a  suit  for  the  whole  amount  of  the  mortgage  debt,  and  ob- 
taining a  judgment  therefor,  opens  the  foreclosure  sale  and  lets  in 
the  equity  of  redemption.^ 

1920  a.  A  mortgagor  who  has  received,  the  surplus  proceeds 
of  sale  is  estopped  from  denying  the  purchaser's  title,  though 
he  received  the  same  in  ignorance  of  defects  invalidating  the  sale, 
if  he  has  subsequently  acquired  knowledge  of  such  defects,  and 
continues  to  retain  the  proceeds.  He  cannot  at  the  same  time  re- 
pudiate the  sale  and  insist  upon  having  the  benefit  of  it.*  He  is 
not  excused  from  such  payment  or  tender  by  the  fact  that  he  has 
spent  the  money  and  is  too  poor  to  replace  it.^ 

1921.  Relief  by  setting  aside  the  sale  must  be  sought  in 
equity  only.*^  The  purchaser  at  the  sale  and  all  persons  claiming 
under  him  are  necessary  parties.^  The  sale  passes  the  legal  title 
to  the  purchaser,  and  a  court  of  law  will  not  inquire  whether  the 
mortgagee  or  trustee  has  complied  with  the  conditions  of  the  mort- 
gage or  deed  of  trust.^  Moreover  a  mortgagor  coming  into  equity 
for  relief  must  offer  to  do  equity.^ 

1  Per  Endicott,  J.,  in  Hood  v.  Adams,  So.  Rep.  143;  Damon  i\  Deeves,  66  Mich. 
124  Mass.  481.  347,  33  N.  W.  Eep.  512. 

2  Scott  V.  Childs,  64  N.  H.  566,  15  Atl.  "  Candee  v.  Burke,  1  Hun,  546,  4  T.  & 
Rep.  206.  C.  143  ;  Fairman  v.  Peck,  87  111.  156. 

3  Clarke  v.  Robinson,  15  R.  I.  231,  10  »  Reece  i?.  Allen,  10  111.  236,48  Am.  Dec. 
Atl.  Rep.  642.  336;  Graham  v.  Anderson,  42  111.  514,  517, 

*  Brewer  v.  Nash,  16  R.  I.  458,  17  Atl.  92  Am.  Dec.  89;    Dawson  v.  Harden,  67 

Rep.  857.  111.  52  ;  Rice  v.  Brown,  77  111.  549 ;  Chapin 

5  Brewer  v.  Nash,  16  R.  I.  458,  24    Atl.  v.  Billings,  91  111.  539. 

Rep.  832.     "  That  the  respondents  aie  too  ^  American  Mortgage  Co.  v.  Sewell,  92 

poor  to  replace  the  money  which  they  have  Ala.  163,  9  So.  Rep.  143.     Thus  a  bill  or  a 

spent  is  their  misfortune,  but  it  does  not  cross-bill  by  the  mortgagor,  asking  cancella- 

take  away  the  equitable  right  of  the  com-  tion  of  the  mortgage  contract  on  the  ground 

plainant  Brewer  to  have  it  restored  to  him  of  usury,  which  does  not  offer  to  repay  the 

if  they  repudiate  his  title."  principal  of   the   loan   and   legal   interest, 

"  Yale  V.  Stevenson,  38  Mich.  537;  Amer-  should  be  dismissed  for  failure  of  defenilant 

ican  Mortg.  Co.  v.  Sewell,  92  Ala.  163,  9  to  offer  to  do  equity.     Approved  in  Ameri- 

774 


SETTING   ASIDE   AND   WAIVING   SALE.  [§  1921. 

If  the  sale  has  not  been  completed  by  the  payment  of  the  pur- 
chase-money, the  mortgagee  should  be  made  a  party.  After  the 
completion  of  the  sale  by  a  conveyance  from  the  mortgagee  to  the 
purchaser,  the  latter  will  as  assignee  hold  the  rights  of  the  mort- 
gagee even  if  the  sale  be  set  aside.^  The  setting  aside  of  the  sale 
does  not  affect  or  impair  the  original  mortgage  lien.^  If  one  who 
has  received  any  part  of  the  surplus  money  brings  an  action  to  set 
aside  the  sale,  he  will  be  required  to  refund  the  money  he  has  re- 
ceived before  the  sal-e  will  be  disturbed  .^ 

In  some  cases  it  has  been  said  that  the  remedy  of  one  who,  having 
an  interest  in  the  equity  of  redemption,  wishes  to  test  the  validity 
of  a  sale  under  a  power,  is  by  a  bill  to  redeem,  and  not  by  a  bill  to 
set  aside  the  sale  and  have  the  property  resold  ;  and  this  is  the 
remedy  although  it  be  shown  that  the  mortgagee  has  used  his  power 
of  sale  inequitably,  and  has  unfairly  bought  in  the  property  him- 
self.^ Other  cases  hold,  however,  that  for  an  abuse  of  the  power 
of  sale  the  mortg-ao-or  is  entitled  to  have  the  sale  set  aside,-^  and 
that  in  a  bill  for  this  purpose  the  mortgagor  need  not  offer  to  re- 
deem.^ If  the  foreclosure  sale  be  void  for  any  irregularity,  the  right 
of  redemption  remains  unchanged  in  the  mortgagor.''  Redemption 
ordinarily  involves  a  tender  of  the  mortgage  debt.^  But  sales  have 
been  set  aside  in  many  cases  without  an  offer  to  redeem.  Wlien 
the  sale  is  fraudulent  in  fact,  and  therefore  void,  a  court  of  equity 
will  not  refuse  relief  because  the  debtor  cannot  fulfil  an  impossible 
condition  of  tendering  the  amount  of  the  mortgage  debt.  The  mort- 
gage debtor  has  a  right  to  insist  that  the  power  of  sale  shall  be  ex- 
ercised in  strict  accordance  with  law,  and  that  there  shall  be  no 
abuse  of  the  trust;  and  of  this  right  he  should  not  be  deprived 
merely  because  he  is  unable  to  redeem.  Under  such  circumstances, 
where  the  debt  exceeds  the  value  of  the  property,  the  assignee  of 

cau  Mortgage  Co.  v.  Turner  (Ala.),  11   So.  Rep.    177.     "The  owner   of   the  equity  is 

Hep.  211.  entitled  to  have  the  mortgagee,  if  he  UDder- 

1  Robinson  v.  Ryan,  25  N.  Y.  320 ;  Jack-  takes   to   exercise    the    power,   exercise    it 

son  V.  Bowen,  7  Cow.  13;  Vroom  v.  Dit-  honestly  and  in  good  faith,  so  tliat  he  may 

mas,  4  Paige,  526.  have  the  benefit  of  the  best  price  that  can 

-  Stackpoie  i'.  Robbins,  47  Barb.  212.  be  so  secured,  and  therefore  is  entitled,  if 

■'  Candee  v.  Burke,  1  Hun,  546,  4  T.  &  the  power  be  abused,  to  have  the  sale  set 

C.  143.  aside."     Meyer  v.  Jefferson  Ins.  Co.  5  Mo. 

*  Schwarz  v.  Sears,  Walk.  (Mich.),  170;  App.  245. 

Tuthillv.  Lupton,  1  Edw.  564.  "  Goldsmith  v.  Osborne,  1  Edw.  560. 

5  Meyer  v.  Jefferson  Ins.  Co.  5  Mo.  App.  »  Kline  v.  Vogel,  U  Mo.  App.  211. 
245. 

«  Briggs  V.  Hall,  16   R.  I.  577,  18  Atl. 

775 


§  1922.]        POWER   OF   SALE   MORTGAGES   AND   TRUST   DEEDS. 

the  bankrupt  mortgagor  may  maintain  proceedings  to  set  aside  the 
sale  without  offering  to  redeem.^ 

Pending  a  bill  to  set  aside  a  sale  on  account  of  fraud  participated 
in  by  the  purchaser,  the  latter  may  be  restrained  by  injunction  from 
committing  waste  upon  the  property .^  The  bill  should  contain  a 
clear  allegation  of  the  defect  for  which  it  is  sought  to  set  aside  the 
sale.^ 

1922.  Delay.  —  Where  no  steps  had  been  taken  to  redeem  a 
mortgage  for  nearly  forty  years  after  its  maturity,  and  more  than 
thirty  years  after  an  open  attempt  to  foreclose  it,  it  was  said  that 
it  would  require  a  very  strong  showing  to  authorize  a  redemption. 
So  a  delay  of  four  or  five  years  precludes  a  mortgagor's  redeeming 
as  against  subsequent  purchasers  in  good  faith.^  Acquiescence  for 
any  considerable  time  in  a  sale  which  is  voidable  only,  unless  ex- 
plained, is  deemed  a  waiver  of  all  mere  irregularities  attending  it  ;'' 
and  ignorance  of  the  facts  which  are  claimed  as  vitiating  the  sale  is 
not  a  sufficient  explanation  of  such  acquiescence  when  such  igno- 
rance is  the  fault  or  negligence  of  the  party .'^  It  is  not  permissible 
for  the  owner  of  the  equity  of  redemption  to  lie  by  and  await  events, 
and  have  the  power  at  any  future  time  to  let  the  sale  stand  or  to 
avoid  it,  according  as  it  may  be  found  to  be  for  his  interest  to  do. 
He  must  promptly  avail  himself  of  any  irregularities  in  the  sale 
within  a  reasonable  time.^     Even  a  delay  of  a  year  after  the  sale 


1  Meyer  v.  Jefferson  Ins.  Co.  5  Mo.  App. 
245. 

2  Thompson  v.  Heywood,  129  Mass.  401. 

3  Sawyer  o.  Bradshaw,  125  111.  440,  17 
N.  E.  Rep.  812. 

*  Hoffman  v.  Harrington,  33  Mich.  392. 
See  §  1674. 

5  §§  1054,  1161  a  ;  Hamilton  v.  Lubukee, 
51  Hi.  415,  99  Am.  Dec.  562;  Gibbons  v. 
Hoag:,  95  111.  45  ;  Ryan  v.  Kales  (Ariz.),  20 
Pac.  Rep.  311  ;  Hoyt  v.  Pawtucket  Inst,  for 
Savings,  110  111.  390;  Cleaver  v.  Green, 
107  111.  67.  A  delay  of  eight  months  may 
not  be  unreasonable.  Walker  v.  Carleton, 
97  111.  582 ;   McHany  v.  Schenk,  88  111.  357. 

6  Emmons  v.  Van  Zee,  78  Mich.  171,  43 
N.  W.  Rep.  1100;  Cornell  y.  Newkirk,  144 
111.  241,33  N.  E.  Rep.  37;  Hoyt  v.  Institu- 
tion for  Savings,  110  111.  390;  Speck  v.  Car 
Co.  121  111.  33,  60, 12  N.  E.  Rep.  213 ;  Fitch 
V.  Willard,  73  111.  92  ;  Williams  v.  Rhodes, 
81  111.  571 ;  Dempster  v.  West,  69  III.  613; 
Nichols  V.  Otto,  132  111.  91,  23  N.  E.  Rep. 
411;  Scott  V.  Freeland,  7   Sm.  &  M.  409; 

776 


Bausman  v.  Eads,  46  Minn.  148,  48  N.  W. 
Rep.  769  ;  Menard  i\  Crowe,  20  Minn.  448  ; 
Meier  v.  Meier,  105  Mo.  411,  16  S.  W.  Rep. 
223. 

■?  Bush  V.  Sherman,  80  111.  160;  Farrar 
V.  Payne,  73  111.  82 ;  Caudle  v.  Murphy,  89 
111.  352;  Watson  v.  Sherman,  84  111.  263; 
Landrum  v.  Union  Bank,  63  Mo.  48  ;  Con- 
nolly V.  Hammond,  51  Tex.  635;  Jenkins 
V.  Pierce,  98  111.  646;  Sloan  v.  Frothing- 
ham,  65  Ala.  593  ;  Abbott  v.  Peck,  35  Minn. 
499,  29  N.  W.  Rep.  194;  Askew  y.  Sanders, 
84  Ala.  356,4  So.  Rep.  167;  Norton  ;•. 
Tharp,  .53  Mich.  146  ;  Welsh  v.  Coley,  82 
Ala.  363,2  So.  Rep.  733. 

In  Alabama  the  later  decisions  have  in- 
clined to  fix  two  years  as  a  reasonable  time, 
by  way  of  analogy  to  the  time  fixed  by 
statute  for  the  redemption  of  realty  sold 
under  mortgages.  This  limitation  is  prima 
facie  applicable,  but  may  be  shown  to  be 
unreasonably  short.  Ezzel  v.  Watson,  83 
Ala.  120,  3  So.  Rep.  309. 

8  Irish  V.  Antioch  College,  126  111.  474,  18 


COSTS,   EXPENSES,   AND   PROCEEDS   OF   SALE.  [§  1923. 

before  an  action  to  set  it  aside  is  commenced  will  be  considered,  es- 
pecially if  the  purchaser  is  let  into  possession,  and  receives  the  rents 
and  profits,  and  there  is  no  claim  of  fraud  in  the  sale.  In  such  case 
the  mortgagor  is  estopped  from  denying  the  validity  of  the  sale.^ 
But  the  mortgagor  is  not  required  to  bring  an  action  to  set  aside 
such  unauthorized  sale  before  the  expiration  of  the  year  for  re- 
demption.2 

Moreover,  if  the  mortgagor  receives  the  surplus  money,  although 
he  may  not  be  estopped  from  questioning  the  validity  of  the  sale, 
it  is  a  matter  to  be  considered  in  passing  upon  the  validity  of  it ; 
and  he  would  be  required  to  refund  the  amount  received  before  his 
application  could  in  any  case  be  granted.^ 

But  laches  cannot  be  imputed  to  one  who  has  delayed  invoking 
the  aid  of  a  court  of  equity,  relying  upon  an  agreement  with  the 
mortgagee  to  allow  him  the  privilege  of  redeeming  after  the  sale. 
In  such  case,  until  the  mortgagee  repudiates  the  arrangement,  laches 
ought  not  to  be  imputed  to  the  mortgagor.^ 

XV.  Cjsts,  Exjjenses,  and  Proceeds  of  Sale. 
1923.  The  mortgagee  is  not  entitled  to  compensation.  A  mort- 
gagee with  a  power  of  sale  is  treated  as  a  trustee  for  sale,  and  the 
general  rule  applicable  to  trustees,  that  they  shall  not  profit  by  the 
trust,  excludes  him  from  claiming  compensation  for  his  services  in 
the  execution  of  his  power  of  sale.  He  is  to  consider  not  only  his 
obligation  to  the  purchaser,  but  his  liability  to  his  cestui  que  trust 
or  mortgagor.^  The  same  rule  applies  to  a  trustee  in  a  trust  deed. 
But  the  mortgage  or  trust  deed  may  provide  for  compensation  to  the 
mortgagee  or  trustee,  and  then  the  agreement  of  the  parties  will,  of 
course,  govern.  A  provision  is  frequently  inserted  in  mortgages, 
allowing  the  mortgagee  on  a  sale  to  charge  a  commission  for  his  ser- 
vices ;  and  in  such  case  it  would  seem  that  a  charge  of  the  stipulated 
commission  would  be  allowed  in  addition  to  the  ordinary  expenses 
and  counsel  fees.^     But  the  mortgagee  may  charge  and  be  allowed 

N.  E.  Rep.  768 ;  Hoyt  v.  Pawtucket  Inst,  for  «  Lime  Rock  Bank  v.  Phetteplace,  8  R.  I. 

Savincs,  110  111.  390.  56.     In  this  case  a  commission  of  five  per 

1  Neal  V.  Bleckley,  36  S.  C.  468,  15  S.  E.  cent,  on  the  gross  proceeds  of  sale,  as  stipu- 
Rcp.  733.  lated  in  the  mortfjage,  was  allowed  in  addi- 

2  Hull  V.  King,  38  Minn.  349,  37  N.  W.  tion  to  the  expenses  and  counsel  fees  paid. 
Rep.  792.  It  was  contended  that  this  commission  was 

3  Candee  v.  Burke,  1  Ilun,  546,  4  T.  &  in  the  nature  of  a  penalty,  which  the  court 
C.  143;  Joyner  v.  Farmer,  78  N.  C.  196.  should  relieve  against;  but  it  was  allowed 

*  Nichols  V.  Otto,  132  111.  91,  23  N.  E.  as   compen.?ation  to   the  mortgagee.     Rap- 

Kep.  411.  panier   v.  Bannon    (Md.),  8  Atl.  Rep.  555. 

5  §  1606  ;  Sugden  on  Vendors,  55  ;  Allen  See  §  1606. 
V.  Robbins,  7  R.  I.  33.  777 


§  1923  a.]     POWER  OF  sale  mortgages  and  trust  deeds. 

for  all  proper  expenses  incurred  in  the  execution  of  the  power  of 
sale,  whether  the  mortgage  expressly  provide  for  the  payment  of 
such  expenses  or  not.  He  may  charge  for  expenses  of  advertising, 
for  auctioneers'  fees,  and  for  counsel  fees  for  advice  as  to  the  proper 
execution  of  the  power. ^  Such  expenses  are  properly  chargeable 
under  the  mortgage,  though  the  attempted  sale  be  discontinued  and 
the  property  sold  in  some  other  way,  especially  if  such  sale  be  dis- 
continued at  the  request  of  the  debtor  or  in  his  interest.^  A  stipu- 
lation in  a  mortgage  for  an  attorney's  fee  cannot  be  enforced  unless 
an  actual  sale  be  made.^  The  fee  cannot  be  demanded  before  the 
sale.4 

1923  a.  Attorney's  fees  are  not  allowed  unless  provided  for 
in  the  mortgage  ;  °  and  they  are  not  allowed  under  a  provision  for 
the  "expenses  of  sale."  This  term  includes  only  the  ordinary  ex- 
penses and  costs  of  foreclosure.^  A  provision  in  a  power  of  sale 
mortgage  for  the  payment  of  "  all  costs  of  foreclosure,  including  at- 
torney's fee,"  includes  such  a  fee  upon  a  sale  under  the  power,  but 
does  not  authorize  an  allowance  of  such  a  fee  for  filing  a  bill  of  fore- 
closure.''' If  an  attorney's  fee  is  claimed  in  good  faith,  though  not 
authorized,  and  included  in  the  sum  for  which  the  land  is  sold,  the 
irregularity  does  not  avoid  the  sale.^ 

If  the  provision  in  the  mortgage  for  the  payment  of  attorney's 
fees  differs  from  that  contained  in  the  mortgage  notes,  the  former 
will  control,  especially  as  against  the  mortgagor's  grantee.  Thus 
where  a  power  of  sale  mortgage  stipulates  that  the  proceeds  of  the 
sale  shall  be  applied,  first,  to  paying  the  expenses,  "  and  all  attor- 

1  Allen  V.  Kobbins,  7  R.  I.  33.  should  be  paid  out  of  the  proceeds.     It  was 

'^  Allen  V.  Robbins,  7  R.  I.  33.  held    that   this   provision   did    not   impose 

^  Myer  v.  Hart,  40  Mich.  517.  upon  the  borrower  the  burden  of  paying  to 

*  Philips  V.  Bailey,  82  Mo.  639.  the  lender  a  solicitor's  fee  where  a  suit  is 

^  1606;  American  Mortg.  Co.  v.  McCall  brought  for  foreclosure.     The  commissions 

(Ala.),  11  So.  Rep.  288;  Fowler  v.  Trust  referred  to   in  the  deed   are  allowed  only 

Co.  141  U.  S.  384,  12  Sup.  Ct.  Rep.  1  ;  Rob-  where  the  property  is  sold  upon  advertise- 

inson  v.  Alabama  Mauuf.  Co.  51  Fed.  Rep.  ment,   by   the  trustee,  without  suit.     The 

268.     See  Dodge  v.  TuUey  (U.  S.),  12  Sup.  trust  deed  made  no  provision  for  a  solici- 

Ct.   Rep.   729,  distinguished    in   preceding  tor's  fee  to  the  company  in  the  event  suit 

case.  was   brought.     That  a  suit  became  neces- 

^  Thomas  v.  Jones,  84  Ala.  302,  4  So.  sary  because  of  the  refusal  of  the  trustee  to 

Rep.  270.  A  trust  deed  made  in  Illinois  pro-  act  is  no  reason  for  taxing  such  a  fee  against 

vided  that,  in  the  case  of  a  sale  by  the  trustee  the  mortgagor.     Fowler  v.  Equitable  Trust 

at    public  auction    upon  advertisement,  all  Co.  141  U.  S.  384,  12  Sup.  Ct.  Rep.  1. 

costs,  charges,  and  expenses  of  such  adver-  "  Bynum  v.  Frederick,  81  Ala.  489. 

tisement,  sale,  and   conveyance,  including  8  Emmons  v.  Van  Zee,  78  Mich.  171,43 

commissions,  such  as  were  at  the  time  of  N.   W.   Rep.   1100;    Millard  v.  Truax,    50 

sale   allowed    by  the   laws   of    Illinois    to  Mich.  343,  15  N.  W.  Rep.  501. 

sheriffs  on  sale  of  real  estate  on  execution, 

778 


COSTS,   EXPENSES,    AND   PROCEEDS   OF   SALE.         [§  1923  h. 

uey's  or  solicitor's  fees,"  and  the  notes  secured  by  the  mortgage  pro- 
vide that,  in  case  they  are  not  paid  at  maturity,  the  mortgagor  shall 
pay  not  less  than  ten  per  cent,  for  collecting  them,  the  effect  of 
the  provision  in  the  mortgage  is  to  authorize  the  mortgagee  to  pay, 
out  of  the  proceeds  of  the  sale,  a  reasonable  compensation  for  the 
services  of  an  attorney  or  solicitor  rendered  in  and  about  the  sale 
made  under  the  power  ;  it  does  not  authorize  him  to  retain  ten  per 
cent,  of  the,  proceeds  of  the  sale.  The  stipulations  in  the  notes  and 
the  mortgage  are  independent,  and  applicable  to  different  contin- 
gencies, —  one  to  the  sale  under  the  mortgage,  the  other  to  collec- 
tion of  the  notes  by  suit.^ 

In  Maryland,  where  the  power  of  sale  is  executed  under  the  direc- 
tion of  the  court,  the  trustee  for  sale  is  allowed  a  commission  of  five 
per  cent.  But  in  a  case  where  the  owner  of  the  equity  of  redemp- 
tion requested  an  adjournment  of  the  sale,  and  agreed  to  pay  the 
usual  commissions  for  sale  and  the  expenses  of  the  adjournment, 
a  claim  for  commissions  in  addition  to  those  for  the  actual  sale 
was  disallowed,  though  the  expenses  of  the  ineffectual  sale  were 
allowed. 2 

The  mere  fact  that  one  is  named  as  trustee  in  a  deed  of  trust 
raises  no  implied  promise  on  the  part  of  the  beneficiary  to  pay  him 
for  his  services.^ 

1923  h.  A  stipulation  for  the  payment  of  an  attorney's  fee 
may  have  reference  only  to  a  sale  under  the  power,  and  when 
that  is  the  case  it  cannot  be  enforced  when  resort  is  had  to  a  fore- 
closure by  suit,  unless  the  necessity  for  such  suit  be  shown.*  In  a 
recent  Alabama  case,  Mr.  Justice  Thornington  said  :  "  Stipulations 
of  this  character  usually  assume  one  of  two  forms  :  First.  Where 
the  right  in  the  mortgagee  to  claim  such   counsel  fees  is  referable 

•  Tompkins  v.  Drennen,  95  Ala.  463,  10  closure  necessary.  Possibly  the  case  naay 
So.  Rep.  638.  It  seems  a  proper  comment  be  put  in  chancery  by  the  mortgagors,  or 
upon  this  case  that,  as  between  the  mortga-  by  some  adversary  claimant,  which,  per  se, 
gor  and  mortgagee  at  least,  the  stipulation  would  demonstrate  the  necessity  for  an  at- 
in  the  mortgage  and  the  notes  should  be  torney  ;  and  in  such  contingency  a  cross- 
construed  together  as  referring  to  the  same  bill  for  foreclosure  might  be  appropriate 
thing.  and  advisable.     In  such  event,  it  would  seem 

-  Neptune  Ins.  Co.  >•.  Dorsey,  3  Md.  Ch.  the  necessity  for  an  attorney  throughout  the 

334.  entire  litigation  would  be  self-evident.     Pos- 

■''  Catlin  V.  Glover,  4  Tex.  151.  sibly  the  apparent  necessity  of  allowing  the 

*  Bynum  v.  Frederick,  81  Ala.  489,  8  So.  mortgagee  to  hid  and  purchase  in  order  to 
llep.  198  ;  Lehman  ;;.  Comer,  89  Ala.  579,  realize  the  full  value  of  the  property,  or  pos- 
8  So.  Rep.  241;  Bedell  v.  New  Eng.  Security  sibly  some  obstacle  which  requires  equitable 
Co.  91  Ala.  325,  8  So.  Rep.  494.  Chief  interposition  to  remove  it,  or  possibly  con- 
Justice  Stone,  delivering  judgment,  said  :  flicting  equities,  may  furnish  the  requisite 
"  We  can  imagine  many  states  of  attendant  necessity." 

facts  which  would  render  a  chancery  fore- 

779 


§  1924.]        POWER   OF   SALE   MORTGAGES   AND   TRUST   DEEDS. 

alone  to  the'power  of  sale  in  the  mortgage,  and  is  dependent  upon 
a  sale  made  pursuant  to  the  power.^  Second.  Where  the  right  to 
claim  such  fees  may  be  exercised  either  upon  a  foreclosure  under 
the  power  of  sale  in  the  mortgage,  or  by  proceedings  in  a  court  of 
chancery .2  Another  class  of  such  cases  is  met  with  in  this  State 
where  the  right  to  claim  such  fees  in  proceedings  to  foreclose  the 
mortgage  in  chancery  is  made  to  depend  upon  the  existence  of  a 
necessity  for  resorting  to  that  mode  of  foreclosure.^  Whether  a  case 
falls  within  the  one  class  or  the  other  depends  upon  the  phraseology 
employed  in  the  note  or  mortgage  in  each  particular  case.  No  gen- 
eral rule  for  the  classification  of  such  cases  can  be  laid  down  by  the 
court,  but  the  intent  of  the  parties  must  be  deduced  from  the  lan- 
guage of  the  entire  contract." 

The  necessity  for  proceedings  in  chancery,  and  the  payment  of 
attorney's  fees  in  such  proceeding,  was  shown  where  a  bill  to  fore- 
close a  mortgage  containing  a  power  of  sale  alleged  that  the  prop- 
erty was  inadequate  to  pay  the  entire  debt ;  that  the  mortgagors 
were  insolvent ;  that  the  mortgage  conferred  no  power  on  the  mort- 
gagee to  purchase  at  a  sale  under  the  power ;  that  the  mortgagors 
denied  the  validity  of  the  mortgage,  in  consequence  of  which  no  sale 
could  be  made  under  the  power  for  the  fair  value  of  the  property  ; 
and  that  it  was  necessary  to  apply  the  rents  to  the  mortgage  debt.^ 

1924.  Reasonable  expenses  incurred  in  advertising  a  sale,  and 
in  making  it  under  a  power  are  always  allowed.  These  include  an 
amount  necessary  for  the  payment  of  an  attorney's  fees  for  prepar- 
ing the  advertisements  of  sale,  and  for  drafting  the  conveyances  to 
the  purchasers  after  the  sale.^  But  when  a  sale  has  been  enjoined 
after  it  was  advertised,  and  the  mortgagee  or  trustee,  in  anticipation 
of  the  action  of  the  court,  incurs  expense  in  advertising  an  adjourn- 
ment, he  is  not  entitled  to  have  this  allowed  to  him  on  the  dissolu- 
tion of  the  injunction  ;  but  reasonable  attorney's  fees  for  preparing 
the  advertisement  may  be  allowed.^  If  the  person  who  obtains  an 
injunction  against  a  sale  allows  the  advertisement  to  continue,  he  is 

^  Such  was  the  character  of  the  right  in  ^  Such  was  the  case  of  Bedell  v.  Security 

the  following  cases:  Bynura  v.  Frederick,  Co.  91  Ala.  325,  8  So.  Rep.  494. 

81  Ala.  489,  8  So.  Rep.  198;  Sage  y.  Biggs,  *  American    Mortgage    Co.    v.    McCall 

1 1  Mich.  313  ;  Hardwick  v.  Bassett,  29  Mich.  ( Ala.),  1 1  So.  Rep.  288. 

17.  5  Snow  V.  Warwick  lust,  for  Sav.  17  R.  I. 

2  Such  are  several  of  the  cases  cited  in  66,  20  Atl.  Rep.  94. 

2  Jones  Mortg.  §  1606,  and   also  in  the  fol-  ^  Marsh  v.  Morton,  75  III.  621. 

lowing  cases:  Tompkins  r.  Drennen,  95  Ala.  In  this  case  the  trustee  advertised  sales 

463,  10  So.  Rep.  638 ;  Lehman  v.  Comer,  89  under  nine  trust  deeds  securing  debts  to  the 

Ala.  579,8  So.  Rep.  241.  amount  of  $50,000,  and  $150  was  allowed 


780 


for  preparing  them. 


COSTS,   EXPENSES,   AND   PROCEEDS   OF   SALE.  [§  1925. 

chargeable  with  the  whole  expense  of  the  publication.^  The  ex- 
penses of  an  abortive  sale  must  generally  be  borne  by  the  mort- 
gagor.2 

As  to  the  fees  of  an  auctioneer,  only  the  sum  charged  by  the  auc- 
tioneer actually  making  the  sale  should  be  allowed.  Thus,  where  the 
auctioneer  employed  by  the  mortgagee  is  absent  at  the  time  of  sale, 
he  is  not  entitled  to  compensation.  The  auctioneers  who  actually 
made  the  sales  must  be  regarded  as  acting  in  their  own  characters, 
the  auctioneer  who  employed  them  not  being  present,  since  it  is  not 
in  the  power  of  an  auctioneer  to  appoint  a  deputy,  or  to  perform 
his  services  as  auctioneer  by  an  agent  or  employee,  unless  he  is  him- 
self present,  supervising  the  sale. 

The  mortgagee  is  entitled  to  retain  out  of  the  surplus,  for  auc- 
tioneer's fees,  only  the  sum  charged  by  the  persons  actually  con- 
ducting the  sale,  and  not  the  amount  he  had  contracted  to  pay  the 
auctioneer.''' 

1925.  If  the  power  provides  that  the  mortgagee  may  retain 
all  costs  and  expenses  of  sale,  he  may  retain  a  reasonable  sum  for 
legal  advice  respecting  it,  and  also  for  his  own  time  and  trouble.^ 
If,  however,  the  sale  is  not  completed,  but  the  advertisement,  being 
imperfect,  is  withdrawn  after  a  single  publication,  no  attorney's  fees 
or  costs  can  be  collected.  A  tender  of  the  full  amount  of  the  debt 
is  good.^  If  after  a  defective  foreclosure  the  mortgagee  for  any 
purpose  of  his  own  deems  it  important  to  proceed  to  a  new  foreclos- 
ure for  the  correction  of  an  error  in  his  own  proceedings,  he  can 
neither  legally  nor  equitably  charge  his  mortgagor  with  the  ex- 
pense.*^ 

Where  the  sale  was  made  after  the  death  of  the  mortgagor,  and 
before  his  estate  had  been  settled,  and  before  an  administrator  had 
been  appointed  upon  his  estate,  and  a  question  which  arose  in  re- 
gard to  the  surplus  was,  whether  it  should  be  paid  over  to  the  heirs 
immediately,  or  should  be  retained  to  meet  any  demands  which 
might  be  made  upon  it  in  the  settlement  of  the  estate,  and  the 
mortgagee  procured  the  advice  of  counsel  upon  this  question,  he 

I  Collins   V.   Standish,  6   How.  Tr.   493.  *  Varnum  y.  Meserve,  8  Allen,  158. 

See  opinion  of  Harris,  J.,  in  this  case,  for  a  In  this  case  the  judge  of  the    Superior 

hill  of  costs,  such  as  is  properly  ullowahle  Court  found  to  be  rcasonahle  in  amount  a 

in  New  York.  charge  of  thirty  dollars  for  legal  advice  and 

-  Sutton    V.  Rawlings,  18    L.   J.  (N.  S.)  making   the   deed,  and  another  of   twenty 

Kxch.  240, 3  Exch.  407  ;  Neptune  Ins.  Co.  r.  dollars  for  the  mortgagee's  own  time  and 

Dorsey,  3  Md.  Ch.  334.     See  §  1607.  trouble  in  relation  to  the  sale. 

■'  Snow  r.  Warwick  Inst,  for  Sav.  17  H.  I.  ^  Collar  v.  Harrison,  30  Mich.  G6. 

6(>,  20  Atl.  Rep.  94.  "^  Clark  v.  Stilson,  36  Mich.  482. 

781 


§  1926-1926  5.]      POWER  of  sale  mortgages  and  trust  deeds. 

should  be  allowed  so  much  as  he  has  properly  paid,  or  would  be 
required  to  pay,  for  such  advice.^ 

1926.  When  the  bankruptcy  court  orders  the  mortgaged 
property  to  be  sold,  and  the  mortgage  debt  to  be  paid  out  of  the 
proceeds,  with  leave  to  the  mortgagee  to  buy  at  the  sale,  the  costs 
and  expenses  are  properly  payable  out  of  the  proceeds  of  the  sale, 
although  these  are  not  suflficient  to  satisfy  the  debt,  rather  than  out 
of  the  other  assets  of  the  bankrupt  estate.  Such  costs  do  not  per- 
tain to  the  general  administration  of  the  bankrupt's  estate,  but 
result  from  the  enforcement  of  a  specific  lien  in  large  part  for  the 
benefit  of  the  mortgagee,  the  proceeding  being  substantially  one 
mode  of  foreclosing  the  mortgage.^ 

1926  a.  The  proceeds  of  the  sale,  after  deducting  all  lawful 
expenses  and  charges  incurred  in  making  the  sale,  are  applicable 
in  the  first  instance  to  the  payment  of  the  mortgage  debt ;  ^  and 
after  that  is  satisfied,  the  surplus  is  payable  to  the  subsequent  par- 
ties in  interest  according  to  their  respective  rights.  If  the  proceeds 
are  sufficient  to  pay  only  a  part  of  the  mortgage  debt,  the  holder 
of  the  mortgage  may  have  a  personal  remedy  against  the  mortga- 
gor, or  his  grantee  or  others,  for  the  deficiency.*  The  payment, 
not  being  a  voluntary  one,  does  not  operate  to  take  the  debt  out  of 
the  operation  of  the  statute  of  limitations.^ 

The  application  of  the  proceeds  is,  however,  subject  to  the  stip- 
ulations contained  in  the  deed  or  mortgage  ;  and  a  stipulation  that 
the  proceeds  of  a  part  of  the  mortgaged  property  may  be  applied 
by  the  mortgagee  is  valid  and  may  be  carried  out.^ 

1926  h.  Payment  of  prior  liens  upon  the  property.  - —  If  the 
property  be  subject  to  taxes,  judgment  liens,  or  other  incumbrances, 
and  the  sale  is  made  on  the  understanding  or  agreement  that  the 
purchaser  shall  take  a  clear  title,  the  mortgagee  or  trustee  mak- 
ing the  sale  must  discharge  these  liens  before  conveying  the  title 
to  the  purchaser.  But  ordinarily  the  purchaser  at  a  sale  under 
a  deed  of  trust  or  mortgage  takes  subject  to  the  existing  incum- 
brances upon  the  property.  A  trustee  under  a  deed  of  trust  mak- 
ing a  sale  cannot  reimburse  the  purchaser  from  the  proceeds  of 
sale  the  amount  paid  by  him  for  taxes  which  were  a  lien  upon  the 

1  Snow  V.  Warwick  Inst,  for  Sav.  17  R.  I.  of  the  debt,  but  the  assignee  declined  the 
66,  20  Atl.  Rep.  94.  proposition  in  the  hope  of  realizing  more. 

2  In  re  Ellerhorst,  2  Sawyer,  219.  ^  See  §§  1682,  1683. 
The  mortgagee  in  this  case  had  previously        *  See  §§  1709-1721. 

offered  to  take  the  property  in  satisfaction        ^  Campbell  v.  Baldwin,  130  Mass.  199. 


782 


8  Newburger  v.  Perkins,  62  Miss.  584. 


THE   SURPLUS.  [§  1927. 

property,  or  the  amount  paid    by  him    to    discharge    a    judgment 
lien.^ 

XVI.   TJie  Surplus. 

1927.  Generally   the  mortgage   with   a   power  of  sale   provides 
for  the  disposal  of  the  surpUis.     Different  terms  are  used  for  this 
purpose,   and    they  should    conform  to  the  disposal    that  the  law 
would   make   irrespective  of    the  provision  itself  ;2    though  if  this 
provision    be   imperfect  in  not  meeting  the  circumstances  of    any 
particular  case,  or  if  the  direction  be  different  from  the  disposal 
that  would  be  made  of    the    surplus  under    general    principles  of 
law,  the  direction  in  the  deed  must  yield  to  the  equitable  rights 
of  the  persons  interested.     This  provision  may  be  very  short  and 
comprehensive;  and  in  the  best  forms  of  conveyance  it  is  simply 
that  the  surplus  shall  go  to  the  mortgagor,  his  heirs  and  assigns.'^ 
A  direction  that  it  be  paid  to  the  executor's  or  administrators  of 
the  mortgagor    is    objectionable,  because,  if  the  sale    takes    place 
after  the  death  of  the  mortgagor,  the  land  has  already  passed  to 
his  heirs  or  devisees,  and  the  surplus  then  belongs  to  them,  not- 
withstanding such  direction  ;  the  mortgage  cannot  alter  the  char- 
acter of  the  surplus  as  between  the  personal  representatives  of  the 
mortgagor  and  his  real  representatives.      Objection  has  also  been 
made    to   the  direction    that  the  surplus  shall   be  payable    to    the 
mortgagor,  his  heirs  or  assigns  ;  because  if  the  sale  should  be  made 
in   his  lifetime,    but   his    death  should  occur  before    the    payment 
of    the    surplus,    this   would    then  go    to    his  personal    representa- 
tives,  because  the    land    had    been    converted    into    personalty   at 
the  time  of    his  death.     This  form  is  also  open  to  the    objection 
of  not  being  strictly  correct  in    the   case  of  a  sale  made  after  the 
death  of  the  mortgagor,  when  he  has  by  his  will  directed  his  ex- 
ecutor to  convert  his    real    estate  into  personalty.     The  terms  of 
the  mortgage  in  these  cases  would  have  to  yield  to  these  circum- 
stances under  which  they  do  not  meet  the  equities  of  the  parties. 
Although  the  direction  that  the  surplus  shall  be  paid  to  the  mort- 
gagor, his   heirs  or  assigns,  does  not  fully  meet  these  exceptional 
cases,  no  harm  can  come  from  this,   because  tiie  surplus  is  in  all 
cases  bound  by  the  actual  rights  and  equities  of  the  parties  inter- 
ested.    No   form   of  words    can  be  used  which  will  in  every  case 

1  Tanner  v.  Taussig,   11  Mo.  App.  534  ;  -^  Wright  v.  Rose,  2  S.  &  S.  323  ;  Bourne 

Scott  V.  Shy,  53  Mo.  478  ;  Schmidt  v.  Smith,  v.  Bourne,  2  Hare,  35  ;  In  re  Smith,  7  Jur. 

57  Mo.  135.  (N.  S.)  903. 

-  See  Forms  of  Mortgages,  §  60. 

783 


§  1928.]       POWER   OF   SALE   MORTGAGES   AND   TRUST   DEEDS. 

fully  point  out  to  the  mortgagee  the  persons  to  whom  he  is  to 
pay  the  surplus ;  and  that  form  which  is  correct  generally,  and  is 
the  most  concise,  is  the  best.^  The  mortgagee  cannot  be  relieved 
of  the  responsibility  of  determining  who  are  the  persons  entitled 
according  to  law,  unless  in  cases  of  doubt  he  refers  the  determi- 
nation of  this  question  to  the  courts.  Complications  may  arise 
which  may  make  such  a  reference  the  only  safe  course ;  but  usu- 
ally there  is  no  difficulty  in  determining  who  are  entitled  under 
the  law,  and  the  direction  to  pay  to  the  heirs  or  assigns  of  the 
mortgagor  affords  as  much  aid  as  any  other,  however  elaborate. 

Whether  the  surplus  be  the  whole  sum  bid  for  the  property, 
less  the  amount  of  the  mortgage  with  the  costs  and  expenses,  de- 
pends upon  the  terms  of  sale.  If  the  title  put  up  and  sold  be  the 
entire  estate  without  deducting  prior  incumbrances,  the  proceeds 
are  primarily  applicable  to  the  payment  of  such  prior  incum- 
brances so  far  as  needed  for  that  purpose.  But  if  only  the  mort- 
gage title  be  sold,  or  if  that  title  be  sold  expressly  subject  to  prior 
incumbrances,  the  purchaser  must  account  to  the  mortgagor  for 
the  surplus  of  the  purchase-money,  deducting  only  the  amount  of 
the  mortgage  with  costs  and  expenses.^  Thus,  if  land  is  sold  sub- 
ject to  outstanding  tax  titles,  the  mortgagee  to  whom  the  sale  is 
made  is  not  entitled  to  deduct  from  the  proceeds  of  the  sale  money 
subsequently  paid  by  him  to  redeem  such  tax  titles;  and  evidence 
that  it  was  understood  and  agreed  prior  to  the  sale,  between  the 
mortgagee  and  the  auctioneer,  that  the  amount  of  the  outstanding 
tax  titles  was  to  be  deducted  from  the  bid  of  the  mortgagee,  is  in- 
admissible.^ 

1928.  If  the  surplus  in  the  hands  of  the  mortgagee  remains 
unproductive  while  adverse  claims  are  made  upon  by  him  by  dif- 
ferent persons,  he  is  not  chargeable  with  interest  pending  the  de- 
termination of  their  rights.^  It  may  happen  that  on  account  of 
adverse  claims,  or  on  account  of  the  absence  or  death  of  the  mort- 
gagor or  other  person  entitled  to  the  surplus,  that  much  time 
may  elapse  before  payment  of  the  surplus  can  be  made,  in  which 
case  it  is  advisable  either  to  pay  the  money  into  court,  or  to 
safely  invest  it  as  a  trust  fund  pending  the  settlement  of  the  ques- 

1  The   statutory  power  of  sale  in  Eng-  r.  Wilkins,    117  Mass.  216;    O'Connell  v. 

laud  directs  the  paymeut  of  the  surplus  to  Kelly,  114  Mass.  97;  Story  v.  Hamilton,  20 

the  mortgagor,  his  heirs,  executors,  admin-  Hun,  13-3.     See  §  1853. 

istrators,  or  assigns,  according  to  their  re-  ^  Skilton  v.  Koberts,  129  Mass.  306. 

spective  rights  and  interests  therein.  *  Mathieson  v.  Clark,  25  I/.  J.  (Ch.)  N. 

-  Morton  v.  Hall,  118  Mass.  511  ;  Alden  S.  29,  4  W.  R.  30. 

784 


THE   SURPLUS.  [§  1929. 

tion  to  whom  it  shall  be  paid,  or  the  appearance  of  the  rightful 
claimant. 

But  if  the  mortgagee  retains  the  money  in  his  own  hands,  there 
is  an  implied  obligation  that  he  shall  pay  interest  from  the  time 
that  he  renders  an  account  to  the  persons  interested  in  the  surplus. 
He  thus  acknowledges  that  he  has  money  due  to  others  in  his  hands  ; 
and  it  does  not  matter  that  he  is  doubtful  of  the  validity  of  the 
claims  of  those  supposed  to  be  interested  in  the  surplus.^ 

1929.  The  surplus  proceeds  must  be  applied  according  to  the 
title  of  the  respective  parties  in  the  property  itself.  If  the  sale 
be  under  the  first  mortgage,  the  holders  of  the  second  mortgage 
are  first  entitled,  and  then  the  next  subsequent  mortgagees  in  their 
order,  and  last  the  mortgagor  or  owner  of  the  equity  of  redemp- 
tion. The  pui'chaser  of  the  equitj'^  of  redemption  stands  in  place  of 
the  mortgagor  in  respect  to  this  right.^  But  the  consent  of  a  sec- 
ond mortgagee,  that  the  surplus  arising  from  a  sale  under  the  first 
mortgage  may  be  paid  to  a  purchaser  of  the  equity  of  redemption, 
will  not  authorize  such  payment  as  against  the  mortgagor,  without 
discharging  the  debt  secured  by  the  second  mortgage ;  because  the 
mortgagor  is  entitled  to  have  the  mortgage  debts  on  which  he  is 
pei'sonally  liable  satisfied  before  anything  is  paid  over  to  one  who 
purchased  only  the  equity  to  redeem  both  mortgages.^ 

The  right  to  the  surplus  passes  to  the  grantee  of  the  mortgagor 
by  a  conveyance  of  the  equity  of  redemption.*  Such  grantee  is 
the  owner,  and  the  law,  independently  of  any  contract  in  the  mort- 
gage, makes  it  the  duty  of  the  mortgagee  to  pay  the  surplus  to 
such  owner.  "  This  obligation  is  consistent  with,  but  does  not 
spring  from,  the  contract  made  with  the  mortgagor  b}^  accepting 
the  power.     It  is  immaterial  that  the  owner  is  a  stranger  to  the 

1  Mattel  I'.  Conant,  156  Mass.  418,  31  N.  sary.  Instead  of  paying  the  money  into 
E.  Rep.  487.  In  this  case  the  mortgagee  court  when  he  brought  his  bill  of  inter- 
retained  the  surplus  several  years.  "  The  pleader,  he  has  kept  it  in  his  own  hands, 
delay  was  a  breach  of  his  obligation,  and  and,  now  that  the  plaintiffs'  claim  has  been 
interest  is  the  measure  of  damages  which  established,  it  is  just  that  he  shall  pay  in- 
the  law  raises  a  promise  to  pay  for  the  de-  terest."  Per  Barker,  J. 
tention  of  the  money  after  the  breach  of  an  -  §  1688;  Cook  y.  Basley,  123  Mass.  396; 
express  or  implied  contract  for  payment,  if  Buttrick  v.  Wentworth,  6  Allen,  79;  Fos- 
no  demand  is  necessary.  Before  the  fund  ter  v.  Potter,  37  Mo.  .52.5,  534  ;  Reid  v.  Mul- 
came  into  his  hands  he  knew  that  the  plain-  lins,  43  Mo.  306  ;  Ballinger  v.  Bourland,  87 
tiffs  were  interested  in  the  proceeds  of  the  111.  513,  29  Am.  Rep.  69;  Brown  v.  Crook- 
sale  which  he  proposed  to  make,  and  by  ston  Ag.  Asso.  34  Minn.  545,  26  N.  W.  Rep. 
his  course  of  dealing  with  thcni  in  respect  907;  Fuller  v.  Langum,  37  Mirui.  74,33  N. 
to  the  foreclosure,  and  in  bringing  his  bill  W.  Rep.  122. 

in  equity,  he  so  recognized  their  claim  as  to  ^  Andrews  v.  Fiske,  101  Mass.  422. 

make  a  demand  upon  their  part  unneces-  *  Buttrick  v.  Wentworth,  6  Allen,  79. 

VOL.  n.                   50  735 


§  1930.]        POWER   OF   SALE   MORTGAGES   AND   TRUST   DEEDS. 

contract  between  the  original  mortgagor  and  the  holder  of  the 
power,  and  it  is  of  no  importance  whether  that  contract  is  a  simple 
contract  or  a  contract  under  seal."  ^ 

A  subsequent  mortgagee  stands  in  place  of  the  mortgagor  to  the 
extent  of  his  interest.  But  if  the  lien  of  a  subsequent  mortgagee 
is  not  affected  by  the  sale,  by  reason  of  any  irregularity  in  it,  such 
as  a  want  of  notice  to  him  of  the  proceeding,  when  this  was  re- 
quired by  the  power  or  by  statute,  he  has  no  claim  upon  the  sur- 
plus.    His  claim  is  in  such  case  upon  the  land,^ 

Where  husband  and  wife  mortgage  real  estate  held  by  them  in  en- 
tirety, with  power  of  sale,  the  holder  of  the  mortgage,  on  sale  under 
the  power,  can  retain  from  the  surplus  the  amount  due  him  on  mort- 
gages executed  by  the  wife  after  the  liusband's  title  had  been  con- 
veyed to  her.  The  surplus,  after  satisfying  the  mortgiiges,  cannot 
be  recovered  in  an  action  brought  by  husband  and  wife  jointly.'^ 

When  the  deed  provides  that  the  surplus  shall  go  to  the  mortga- 
gor or  his  assigns,  the  purchaser  necessarily  has  notice  of  this  pro- 
vision, and  he  acts  at  his  peril  in  relying  upon  the  I'epresentations 
of  the  mortgage  trustee  or  any  one  else  that  such  surplus  should  be 
applied  to  the  satisfaction  of  certain  debts  of  the  mortgagor  in 
which  the  purchaser  is  interested,  to  the  exclusion  of  other  creditors 
of  the  mortgagor.^ 

Though  a  purchaser  at  a  sale  under  a  trust  deed  which  was  sub- 
ject to  a  prior  mortgage  bid  a  sum  sufficient  to  satisfy  the  prior 
mortgage,  as  well  as  the  trust  deed  under  which  the  sale  was  made, 
relying  upon  the  representations  of  the  trustee  that  he  had  author- 
ity to  sell  and  apply  the  surplus  to  the  payment  of  an  antecedent 
mortgage,  and  would  so  apply  it,  the  mortgagor  is  not  bound 
thereby.  The  purchaser  under  a  foreclosure  sale  cannot  be  relieved 
from  the  payment  of  the  surplus  bid  by  him,  on  the  gi'ound  that  he 
was  of  opinion,  and  was  so  advised  by  counsel,  that  the  surplus  fund 
would  go  to  the  liquidation  of  the  prior  mortgage  debt.^ 

1930.  Notice  of  claims  to  the  surplus  money  must  be  given 
to  the  mortgagee,   or  he  must  have  actual   notice   of    the    incum- 

1  Mattel  V.   Conant,  156  Mass.  418,  31  *  Gair  v.  Tuttle,  49  Fed.  Rep.  198,201. 

N.  E.  Rep.   487,  per  Barker,  J. ;    Wiggin  "  It  is  nothing  more  nor  less  than  a  bald  at- 

V.  Heywood,   118  Mass.   514;    Gardner    v.  tempt  to  ingraft  by  parol  a  clause  upon  the 

Barnes,  106  Mass.  505;  Cook  r.Basley,  123  deed  of  trust  enlarging  the  powers  of  the 

Mass.  396;  Converse   v.  Bank,    152  Mass.  trustee,  and  giving  a  different  direction  to 

407,  25  N.  E.  Rep.  733.  the  fund  than  that  prescribed  by  the  written 

-  Winslowt;.  McCall,  32  Barb.  241.  instrument."     Per  Philips,  J. 

3  Donahue  y.  Hubbard,  154  Mass.  537,  28  5  Gair  r.  Tuttle,  49  Fed.  Rep.  198,  §§1642, 

N.  E.  Rep.  909.  1650. 
786 


THE   SURPLUS.  [§  1931. 

brances  on  which  such  claims  may  be  founded,  or  he  will  not  be 
responsible  for  not  applying  the  surplus  towards  their  payment.^ 

But  to  a  suit  by  a  mortgagor  for  a  surplus  of  proceeds  arising 
from  a  sale  of  the  mortgaged  premises  it  is  not  a  good  defence  for 
the  mortgagee  that  a  third  person  holds  a  second  mortgage  on  the 
premises  which  has  not  been  satisfied  ;  for,  though  the  second  mortga- 
gee may  maintain  an  action  against  defendant  to  have  the  surplus 
applied  to  his  mortgage,  he  is  not  compelled  to  do  so,  but  may  col- 
lect the  entire  debt  from  the  mortgagor.^ 

1931.  A  surplus  arising  on  the  sale  of  real  estate  under  a 
power  after  the  death  of  the  mortgagor  belongs,  under  the  rule 
in  England,^  adopted  also  in  New  York  *  and  other  States,^  to 
his  heirs  or  devisees,  and  not  to  his  administrator,  who  cannot 
maintain  an  action  to  recover  it,  although  the  mortgage  itself  pro- 
vides that  the  surplus  shall  be  paid  to  the  mortgagor,  his  execu- 
tor or  administrator.  The  heirs  or  devisees  are  also  entitled  to  the 
profits  of  the  surplus  in  the  mortgagee's  hands  until  legal  measures 
are  taken  by  the  administrator  of  the  estate  to  apply  the  surplus 
to  the  payment  of  the  debts  of  the  mortgagor.^  In  support  of 
this  view,  it  is  urged  that  the  provision  in  the  mortgage  for  the 
payment  of  the  surplus  should  be  construed  that  the  payment  is  to 
be  made  to  the  executor  or  administrator  whenever  it  might  have 
been  collected  by  the  mortgagor,  as,  for  example,  when  the  land  is 
sold  in  his  lifetime.  Moreover,  it  is  to  be  observed  that  in  New 
York  the  equity  of  redemption  is  the  legal  estate,  and  the  mort- 
gage only  a  lien. 

In  Massachusetts,  on  the  other  hand,  it  is  held  that  the  action  in 
such  case  should  be  maintained  by  the  administratoi*,  who  will,  how- 
ever, hold  the  money  when    collected  in  trust  for  the  persons  who 

1  McLean  v.  Lafayette  Bank,  4  McLean,  2  Young  &  C.  708,  721  ;  Bourne  v.  Bourne, 

430.  2  Hare,  35,  39. 

-  American  Mortg.  Co.  v.  Inzer  (Ala.),  13  *  Dunning  v.  Ocean  Nat.  Bank,  61  N.  Y. 

So.  Rep.  .507.  497,  19  Am.  Rep.  293;  Sweezy  v.  Thayer, 

=*  See  §  1695  ;  Wright  v.  Rose,  2  S.  &  S.  1  Duev,  286. 

323.     "If  the  estate  had  been  sold  by  the  *  Chaffee    v.   Franklin,    11     R.    I.   578; 

mortgagee  in  the  lifetime  of  the  mortgagor,  Shaw  v.  Hoadley,  8  Blackf.  165. 

then  the  surplus  moneys  would  have  been  ^  Allen  v.  Allen,  12  R.  L  301.     It  was 

personal  estate  of  the  mortgagor,  and  the  further  held  in  this  case  that  the  heirs  and 

plaintiffs  would  have  been  entitled.      But  devisees  were  entitled  to  receive  the  surplus 

the  estate  being  unsold  at  the  death  of  the  on  giving  proper  security  to  repay  it,  or  so 

mortgagor,   the  equity  of   redemption  de-  much  of  it  as  might  be  needed  to  pay  the 

scended  to  his  heir,  and  lie  is  now  entitled  debts   of   the   deceased  ;    and  that,  if  such 

to  the  surplus  produce."      Per  the    Vice-  security  were  not  given,  the  surplus  should 

Chancellor.     See,  also.  Pulley  v.  Seymour,  be  paid  into  court,  and  there  administered 

as  the  probate  court  would  administer  it. 

787 


§§  1932,  1923.]     POWER  of  sale  mortgages  and  trust  deeds. 

■would  have  been  entitled  to  the  land  if  no  sale  had  been  made.^ 
All  the  cases  recognize  the  doctrine,  that  the  surplus  is  equitable 
real  estate,  and  should  go  to  the  persons  who  would  be  entitled 
to  the  equity  of  redemption.  They  differ  as  to  the  mode  in  which 
the  parties  in  interest  shall  obtain  their  rights,  rather  than  as  to  the 
rights  themselves.  One  reason  why  the  administrator  should  be 
entitled  to  recover  is,  that  if  the  equity  of  redemption  had  not  been 
sold  it  would  have  remained  subject  to  the  debts  of  the  deceased, 
and  might  have  been  sold  under  a  license  to  the  administrator,  if 
required  for  that  purpose ;  and  therefore  the  administrator  should 
take  the  surplus  and  hold  it  until  it  is  certain  that  it  will  not  be 
required  for  the  payment  of  debts.  Moreover,  there  is  force  in  the 
fact  that  the  right  of  the  mortgagor's  personal  representative  to 
recover  is  direct  under  the  contract. 

1932.  In  case  of  the  insolvency  or  bankruptcy  of  the  mort- 
gagor, a  provision  that  the  surplus,  after  satisfying  the  debt,  shall 
be  paid  to  the  mortgagor  without  naming  his  assigns,  does  not  cre- 
ate any  trust  for  his  benefit,  but  the  surplus  will  go  to  his  assignee 
in  bankruptcy.^ 

When  a  mortgage  is  foreclosed  after  the  death  of  the  mortgagor, 
and  his  estate  is  insolvent,  the  mortgagee  cannot  retain  a  surplus  in 
his  hands  and  apply  it  to  the  payment  of  a  simple  contract  debt  due 
him  from  the  mortgagor,  as  this  would  give  him  a  preference  over 
other  creditors,  but  he  must  hand  it  over  to  the  personal  representa- 
tives of  the  deceased.  The  mortgagee  is  merely  a  trustee  of  the 
surplus.^ 

When  the  mortgaged  land  is  sold  after  the  death  of  the  mortga- 
gor, the  heirs  are  nevertheless  entitled  to  the  surplus,  unless  the  sur- 
plus, or  some  portion  of  it,  is  needed  to  pay  the  debts  of  the  de- 
ceased mortgagor.  In  case  the  mortgagor  has  been  dead  many 
months  and  no  administration  has  been  taken  out,  it  may  be  pre- 
sumed that  the  surplus  will  not  be  required  for  that  purpose.^ 

1933.  Dower  in  surplus.  —  By  the  foreclosure  sale  the  mortga- 
gor's right  of  redemption  is  converted  into  a  claim  upon  the  surplus 

1  Varnum  r.  Meserve,  8  Allen,  158.    The  personal  estate,  and  consequently  that  the 

surplus  in  such  case  belongs  to  the  exec-  personal  representatives  of  the  owner  of  the 

utor,  although   the  naortgagor  by  will  de-  equity  should  be  made  parties  to  a  petition 

vised  the  land  to  others;  and  he  will  hold  for  the  surplus.     Smith  v.  Smith,  13  Mich, 

such  surplus,  first,  to  the  use  of  the  widow  258. 

having  a  paramount   right  of  homestead;  ^  Calloway  v.  People's  Bank,  54  Ga.  441, 

second,  for  the  payment  of  debts ;  and  third,  450. 

to  the  uses  of  the  will.  3  Talbot  i-.  Frere,  L.  R.  9  Ch.  D.  568. 

In  Michigan  it  is  held  that  the  surplus  is  *  Snow   v.    Warwick   Inst,    for   Sav.   1 7 

788 


THE   SURPLUS.  [§  1934. 

money  in  the  mortgagee's  hands.  It  is  personalty,  and  belongs  to 
those  who  are  entitled  to  his  personal  estate.  The  wife  of  the 
owner  of  the  estate,  subject  to  a  mortgage  valid  against  her,  has  no 
claim  to  any  part  of  the  surplus  proceeds  of  a  foreclosure  sale  un- 
der the  mortgage,  as  against  her  husband  or  his  assignees  in  bank- 
ruptcy.i  The  sale  is  as  effectual  in  barring  all  claim  or  possibility 
of  dower  in  the  property  as  if  the  foreclosure  had  been  by  entry 
for  breach  of  condition  and  lapse  of  time.  The  death  of  the  hus- 
band after  the  sale,  but  before  the  distribution  of  the  money,  would 
not  avail  to  endow  the  widow  of  the  surplus,  as  the  rights  of  all 
parties  are  fixed  at  the  time  of  the  sale.  If  the  sale  take  place  after 
the  death  of  the  mortgagor,  then  his  widow  is  entitled  to  dower  in 
the  surplus. 2 

Some  courts  have  held  that,  if  there  be  a  surplus  after  a  foreclos- 
ure sale,  the  wife's  inchoate  right  of  dower  will  be  protected  either 
by  investing  one  third  of  the  amount  to  await  the  perfection  or 
cessation  of  such  right,  or  by  calculating  the  present  value  of  her 
chance  of  surviving  her  husband,  and  paying  to  her  at  once  such 
suni.^     But  this  is  an  exceptional  holding. 

1934.  When  the  equity  has  been  sold  under  execution  or 
attached.  —  The  mortgage  usually  provides  that  the  surplus,  after 
payment  of  the  mortgage  debt  and  expenses,  shall  be  paid  to  the 
mortgagor  or  his  assigns ;  and  in  such  case  the  surplus  belongs  to  the 
person  who  is  at  the  time  of  the  sale  the  owner  of  the  equity  of 
redemption.  If  the  equity  of  redemption  has  been  sold  on  execu- 
tion before  a  sale  of  the  land  under  a  power  in  the  mortgage,  the 
surplus  then  belongs  to  the  purchaser  at  the  execution  sale,  for 
the  sale  and  conveyance  on  execution  constitute  such  purchaser  the 
owner  of  the  equity  of  redemption.  But  if  the  equity  of  redemp- 
tion be  attached,  and  pending  the  suit  the  mortgagee  sells  under 
such  a  power  in  the  mortgage,  and  judgment  and  execution  follow, 
and  the  execution  be  levied  by  a  sale  of  the  land,  the  levy  is  a  nul- 
lity so  far  as  respects  the  title  to  the  land  ;  and,  as  respects  the  sur- 
plus in  the  hands  of  the  mortgagee  of  the  proceeds  of  the  sale  un- 
der the  mortgage,  it  gives  the  purchaser  no  right  or  title ;  and  he 
cannot  maintain  either  an  action  at  law  for  money  had  and  received, 

R.  I.  66,  20  Atl.  Rep.  94.  In  this  case  Cents  Savings  Bank,  101  Maes.  428,  3  Am. 
the    mortgagor   had   been   dead   seventeen    Rep.  387. 

months.  '^  Chaffee  v.  Franklin,  11  R.  I.  578. 

1  §§  1693,  1694;  Newhall  i;.  Lynn  Five        ^  §  i694;  De  Wolf  v.  Murphy,  11  R.  I. 

630. 

789 


§  1935.]        POWER   OF   SALE   MORTGAGES   AND   TRUST   DEEDS. 

or  a  bill  in  equity  to  recover  such  surplus,  if  brought  or  filed  more 
than  thirty  days  after  judgment  was  recovered.^ 

Whether,  by  any  form  of  process  at  law  or  in  equity  brought 
within  the  period  after  judgment  during  which  the  attachment  con- 
tinues a  lien,  the  creditor  could  reach  and  apply  to  his  claim  the 
surplus  in  the  mortgagee's  hands,  is  a  question  which  was  not  decided 
in  the  case  last  cited,  but  was  determined  in  a  case  which  arose  in 
the  same  court  soon  afterwards  ;  and  it  was  there  decided  that  when 
land  subject  to  a  mortgage  is  attached  on  mesne  process,  and  before 
judgment  is  recovered  the  land  is  sold,  under  a  power  of  sale  in  the 
mortgage,  for  more  than  enough  to  pay  the  debt  and  expenses  of 
sale,  the  attaching  creditor  may,  by  a  bill  in  equity  brought  within 
thirty  days  after  judgment  in  the  action  in  which  the  attachment 
was  made,  enforce  his  lien  against  the  surplus.^ 

If  at  the  time  of  the  sale  under  a  trust  deed  the  property  has 
been  sold  under  a  junior  judgment,  and  the  title  has  become  abso- 
lute in  the  purchaser  by  the  expiration  of  the  time  allowed  for  re- 
demption, so  that  he  has  received  a  deed  of  the  property,  or  is  enti- 
tled to  one,  he  is  then  entitled  to  receive  the  whole  of  any  surplus 
there  may  be  after  discharging  the  debt  secured  by  the  trust  deed 
and  the  expenses;  but  if  the  land  has  been  sold  under  execution, 
and  the  time  for  redemption  has  not  expired,  and  the  purchaser  is 
not  entitled  at  the  time  of  the  sale  under  the  trust  deed  to  a  deed 
conferring  the  title  upon  him,  he  then  has  only  a  lien  upon  the  sur- 
plus, and  is  entitled  to  only  so  much  of  it  as  will  satisfy  the  amount 
of  his  bid  and  the  interest  thereon  allowed  by  statute.  In  the  lat- 
ter case  the  grantor  in  the  trust  deed  is  entitled  to  the  remainder 
after  satisfying  the  judgment  lien,  although  his  right  to  redeem  has 
expired,  but  the  purchaser's  right  has  not  become  absolute  by  the 
expiration  of  the  time  within  which  there  can  be  a  redemption  from 
him  by  any  one  else  ;  as  where  twelve  months  are  allowed  the  debtor 
for  redemption,  and  three  months  more  for  redemption  by  a  cred- 
itor, and  the  sale  under  the  trust  deed  takes  place  during  these  three 
months.^ 

1935.  Judgment  lien. — The  sale  cuts  off  all  right  of  redemp- 
tion, and  prevents  any  levy  of  execution  upon  the  land  by  virtue 
of  the  attachment.     The  land  is  turned  into  money,  which  is  to  b^i 

1  Gardner  v.  Barnes,  106  Mass.  505.  name  of  Solt  v.  Wingarte,  8  Chicago  L.  N. 

2  Wiggin  V.  Heywood,  118  Mass.  514;  179,2  N.  Y.  Weekly  Dig.  98,  which  was 
Judge  V.  Herbert,  124  Mass.  330;  De  Wolf  clearly  contrary  to  principle  and  authority, 
V.  Murphy,  II  R.  I.  630.  was  withdrawn.     In  support  of  the  text  sec, 

3  Hart  V.  Wingate,  83   111.  282.     A  pre-  also,  Snyder  v.  Stafford,  11  Paige,  71. 
Tious  judgment    in    this    case,   under   the 

790 


THE   SURPLUS.  [§  1936. 

applied  in  the  first  instance  to  tlie  payment  of  the  debt  and  ex- 
penses of  the  mortgagee,  and  any  surplus  to  the  same  persons  the 
land  belonged  to  before  the  sale.  Their  respective  rights  in  the  fund 
are  not  affected  by  the  sale ;  and  the  court  will  apply  the  money  ac- 
cording to  the  rights  of  the  parties  as  they  existed  before  the  real 
estate  was  turned  into  money.^  If  there  be  a  judgment  lien  upon  the 
equity  of  redemption,  this  must  be  satisfied  before  the  owner  can  claim 
anything. 2  A  mortgagee  having  purchased  the  mortgagor's  equity 
of  redemption  at  a  sale  on  execution  to  satisfy  another  debt  due  him 
from  the  mortgagor,  afterwards  bought  the  land  under  a  power  of 
sale  in  the  mortgage.  The  mortgagor,  having  the  right  to  redeem 
from  the  execution  sale  within  one  year  thereafter,  is  within  that 
time  entitled  to  maintain  an  action  for  a  surplus  in  the  mortgagee's 
hands  in  excess  of  both  the  mortgage  and  judgment  debts.^ 

1936.  "Where  the  payment  of  a  mortgage  debt  has  been 
charged  upon  a  portion  of  the  mortgaged  premises,  b}'^  reason 
that  the  mortgagor  has  given  a  warranty  deed  of  the  other  portion, 
the  charge  in  equity  attaches  to  the  surplus  arising  from  the  sale  of 
the  land  by  a  prior  mortgagee.*  Thus  where  a  mortgagor  mort- 
gages a  portion  of  the  mortgaged  land  with  covenants  of  warranty, 
the  second  mortgagee,  having  duly  recorded  his  mortgage,  on  a  sale 
of  the  whole  premises  on  foreclosure  of  the  first  mortgage  is  entitled 
to  be  paid  out  of  the  balance  left  after  satisfying  the  first  mortgage, 
before  any  part  of  the  surplus  is  applied  on  a  third  mortgage  or  con- 
veyance covering  the  same  premises  embraced  in  the  first.  The 
surplus  cannot  be  apportioned  between  the  second  and  third  mortga- 
gees, because  the  mortgagor,  in  conveying  a  portion  of  the  mortgaged 
land  with  covenants  of  warranty,  as  between  him  and  his  grantee, 
charged  the  prior  mortgage  wholly  upon  the  portion  retained  by 
himself  ;  and  his  subsequent  grantee  with  notice  stands  in  no  better 
position  than  the  grantor  himself.^ 

If  there  are  sureties  upon  part  of  the  debt  secured  by  the  mort- 
gage, upon  a  sale  of  the  property  the  mortgagee  becomes  a  trustee 
for  them  to  the  amount  of  the  funds  provided  for   their  indemnity, 

1  Astor  V.  Miller,  2  Paige,  68  ;  Fry's  Ap-  ^  E(]jy  j,_  Smith,  13  Wend.  488  ;  Hall  v. 

peal,  76  Pa.  St.  82 ;    Douglass's  A))peal,  48  Gould,  79  III.  16.     See  §§  1687,  1688. 

Pa.  St.  223  ;  De  Wolf  r.  Murphy,  1 1  R.  I.  3  Johnson  v.  Cobleigh,  152  Mass.  17,  25 

G30  ;  Bartlett  i'.  Gale,  4  Paige,  503 ;  Barber  N.  E.  Rep.  73. 

I'.  Gary,  11  Barb.  549  ;  Brown  i\  Crookston  *  Beard  v.  Fitzgerald,  105  Mass.  134. 

Ag.  Asso.  34   Minn.  545,26  N.    W.  Rep.  ^  Converse  r.  Ware  Sav.  Bank,  152  Mass. 

907.  407,  25  N.  E.  Rep.  733. 

791 


§§  1937, 1938.]     POWER  of  sale  mortgages  and  trust  deeds. 

and  must  see  that  their  just  proportion  of  the  proceeds  is  applied 
to  the  discharge  of  the  debt  upon  which  they  are  bound.^ 

1937.  When  property  is  sold  under  a  mortgage  or  deed  of 
trust  to  satisfy  one  instalment  of  the  debt  before  the  others 
have  matured,  and  there  is  no  provision  that  the  whole  debt  shall 
be  due  and  payable  upon  a  default  upon  any  part  of  it,  the  trustee 
holds  any  surplus  there  may  be,  after  satisfying  the  expenses  and 
the  part  of  the  debt  then  due,  subject  to  the  same  lien  as  the  prop- 
erty was.^  The  mortgagor  has  no  claim  to  it.  When  the  mort- 
gage expressly  or  impliedly  provides  that  the  whole  debt  shall  be- 
come due  upon  any  default,  either  the  mortgagee  or  his  assignee  is 
authorized  to  exercise  the  option  to  declare  due  all  the  notes  se- 
cured by  the  mortgage,  and  to  advertise  and  sell  the  premises  in 
payment  of  the  whole  debt.^  The  trustee  in  a  deed  of  trust  has 
the  same  right,  and  is  not  bound  to  give  any  notice  to  the  debtor  of 
his  election  to  treat  the  whole  debt  as  due.^ 

The  mortgage  lien  is  of  course  exhausted  by  a  sale  of  the  whole 
estate  for  the  payment  of  an  instalment  only  of  the  debt.  The 
same  land  cannot  be  sold  again  to  satisfy  a  subsequent  instalment. 
The  entire  title  and  interest  passes  by  the  first  sale.^  If,  however, 
the  foreclosure  sale  is  defeated  before  it  has  become  complete  by 
the  owner's  redeeming  within  the  time  allowed  by  statute,  the  same 
land  may  be  sold  again  for  the  satisfaction  of  the  other  instalments 
of  the  mortgage  debt.^ 

1938.  Payment  of  whole  debt  on  a  sale  for  an  instalment. 
—  It  is  not  necessary,  in  order  to  authorize  a  sale  under  a  power 
and  the  payment  of  the  whole  debt  upon  default  in  the  payment 
of  an  instalment  of  the  debt,  before  the  whole  of  it  has  matured, 
that  there  should  be  an  express  provision  that  the  whole  may  in 
such  event  become  due  and  be  collected.'     Although  it  is  true  that 

1  §  1706  ;  Fielder  v.  Varner,  45  Ala.  429.  said  sum  of  money,  or  the  interest  that  may 

2  §§  1699-1703;  Huifard  v.  Gottberfr,  54  grow  due  thereon,  or  of  any  part  thereof, 
Mo.  271  ;  Standish  v.  Vosberg,  27  Minn,  that  then,  and  upon  failure  of  the  grantor  to 
175 ;  Fowler  v.  Johnson,  26  Minn.  338.  pay  the  first  or  any  subsequent  instalment, 

3  Heath  v.  Hall,  60  HI.  344 ;  Fryar  v.  as  hereinbefore  specified,  it  shall  be  lawful 
Fryar,  62  Miss.  205.  for  the  trustee  to  enter  upon  all  and  singu- 

■i  Princeton  Loan  &  Trust  Co.  v.  Munson,  lar  the  premises  hereby  granted,  and  to  sell 

60  111.  371.  and  dispose  of  the  same,  and  all  benefit  and 

^Fowler    i:  Johnson,    26    Minn.    338;  equity  of  redemption,  etc.,  and  to  make  and 

Standish  v.  Vosburg,  27  Minn.  175  ;  Brown  deliver  to  the  purchaser  or  purchasers  there- 

V.  Brown,  47  Mich.  385.  of  a  good  and  sufficient  deed  for  the  same, 

6  Standish  v.  Vosburg,  27  Minn.  175.  in  fee  simple,  and  out  of  the  money  arising 

■^  Olcott  V.  Bynum,  17  Wall.  44.  from  such  sale  to  retain  the  principal  and 

The  power  was  as  follows  :  "  That  if  de-  interest  which  shall  then  be  due  on  the  said 

fault  shall  be  made  in  the  payment  of  the  bond  or  obligation,  together  with  the  costs 

792 


THE   SURPLUS.  [§  1939. 

a  power  to  sell  tlie  property  in  the  event  of  any  default,  and  out  of 
the  proceeds  to  retain  the  principal  and  interest  then  due,  while  it 
authorizes  the  sale  of  the  entire  property,  does  not  make  the  entire 
debt  due  and  collectible  upon  the  first  default ;  yet  if  the  property 
be  incapable  of  division  without  injury,  and  is  sold  upon  the  first 
default,  and  yields  a  fund  sufficient  to  pay  the  whole  debt,  it  may 
be  so  applied  at  once,  so  as  to  stop  interest  and  extinguish  the  whole 
liability. 

Generally  the  power  of  sale  authorizes  the  mortgagee,  upon 
making  a  sale,  to  retain  from  the  proceeds  the  whole  amount  of 
liis  demand,  whether  it  be  due  or  not.  In  several  States,  as  in 
Michigan,  Minnesota,  New  York,  and  Wisconsin,  the  statutes  reg- 
ulating sales  under  powers  provide  that,  if  the  premises  consist  of 
distinct  parcels  or  lots,  no  more  shall  be  sold  than  is  sufficient  to 
satisfy  the  amount  due  on  the  mortgage  with  interest  and  costs. ^ 
When  it  is  proper  to  sell  the  whole  mortgaged  premises  together, 
the  whole  debt  may  be  retained  from  the  proceeds.  These  stat- 
utes do  not  contemplate  a  sale  subject  to  instalments  not  due  at 
the  time  of  the  sale.^  The  powers  are  never  drawn  with  a  view 
to  such  a  proceeding.  In  this  respect  the  effect  of  the  sale  in  the 
payment  of  the  debt  is  quite  different  from  that  of  a  foreclosure 
sale  in  equity,  where  provision  may  be  readily  made  for  further 
sales  to  meet  future  instalments,  or  for  the  care  of  the  money  re- 
ceived in  excess  of  the  amounts  due,  and  the  payment  of  the  in- 
stalments as  they  mature.  Except  under  the  statute,  there  can 
be  no  sale  of  the  mortgaged  estate  to  pay  the  amount  already 
due,  subject  to  the  future  instalments.  The  mortgage  is  extin- 
guished by  such  sale,  though  relief  might  be  had  in  equity  against 
the  purchaser. 

1939.  If  a  sale  is  made  when  only  part  of  the  mortgage 
notes  have  matured,  under  a  notice  of  a  sale  to  be  made  subject 
to  other  notes  specified,  the  presumption  is  conclusive  that  the 
land  sold  for  the  amount  of  the  unpaid  notes  less  than  it  would 
otherwise  have  done.  The  mortgagor  may  then  insist  that  pay- 
ment of  such  notes  shall  be  made  out  of  the  land  upon  which 
they  have  become,  by  the  mortgage  and  sale,  an  express  charge. 
Therefore  there  can  be  no  action  against  him  for  these  notes.     The 

and  charges  of  advertising  and  sale  of  the  of  equity  would  have  applied  it,  there  was 

same   premises,  rendering  the  overplus  of  no  ground  for  complaint., 

the  purchase-money,  if  any  there  shall  be,  i  See  Statutes,  §§  1340,  1343,  1351, 1364. 

unto  the  said   Hovey,"  the  grantor.      Mr.  ^  Cox  v.  Wheeler,  7  Paige,  248;  Jeucks 

Justice  Swayne  said  that,  the  mortgagee  in  v.  Alexander,  11  Paige,  619  ;  Buncev.  Reed, 

this  case  having  applied  the  fund  as  a  court  16  Barb.  347  ;  Barber  v.  Gary,  1 1  Barb.  549. 

793 


§  1940.]        POWER   OF   SALE   MORTGAGES   AND   TRUST   DEEDS. 

fact  that  the  mortgagees  became  purchasers  under  the  foreclosure 
sale  places  them  in  no  better  position,  in  regard  to  collecting  the 
notes  of  the  mortgagor,  than  if  a  third  party  had  purchased  sub- 
ject to  the  notes.  If  the  mortgagor  should  be  compelled  to  pay 
the  notes  he  would  be  subrogated  to  the  mortgage  security,  and 
might  proceed  to  collect  the  amount  of  these  notes  out  of  the 
land.  To  prevent  circuity  of  action,  a  suit  upon  the  notes  against 
the  mortgagor  is  not  allowed.^ 

If  a  trustee  under  a  deed  of  trust  made  to  secure  three  notes 
sells  for  the  payment  of  two  of  the  notes,  and  the  holder  of  these 
notes,  bidding  the  amount  of  them,  becomes  the  purchaser,  the 
other  note  being  held  by  a  third  party,  the  purchaser  in  effect  buys 
subject  to  the  right  of  such  third  party  to  enforce  his  note  against 
the  property ;  but  neither  the  purchaser  nor  the  trustee  is  person- 
ally liable  to  such  third  party.  But  if  the  purchaser  afterwards 
sells  the  land  to  an  innocent  purchaser  for  value,  the  purchaser  at 
the  trustee's  sale  becomes  personally  liable  to  the  holder  of  the 
other  note.2 

As  already  noticed,  it  is  a  settled  rule  of  law  in  several  States 
that  where  a  mortgage  or  deed  of  trust  has  been  given  to  secure 
the  payment  of  several  notes,  which  become  due  at  different  times, 
the  notes  have  priority  of  lien  in  the  order  in  which  they  become 
due  and  payable.^  Accordingly,  where  the  first  note  falling  due  of 
a  series  of  notes  secured  by  a  trust  deed  belonged  to  one  party,  and 
the  other  notes  to  another,  and  the  trustee,  at  the  request  of  the 
holder  of  the  note  first  due,  advertised  the  property  for  sale  to  pay 
his  note,  and  afterwards,  at  the  i-equest  of  the  holder  of  the  other 
notes,  advertised  and  sold  the  property  at  an  earlier  day  to  the 
latter,  and  then,  upon  the  day  of  sale  under  the  first  advertisement, 
sold  the  property  again  to  the  holder  of  the  first  maturing  note,  it 
was  held  that,  although  the  purchaser  at  the  first  sale  took  the  legal 
title,  a  court  of  equity  would  set  aside  the  first  sale  and  order  an- 
other, from  the  proceeds  of  which  the  several  notes  should  be  paid 
according  to  the  order  of  their  maturity.^ 

1940.  The  rights  of  different  claimants  of  the  surplus  money 
may  be  determined  in  suits  brought  by  them  against  the  mortga- 
gee for  money  had  and  received;'^  or  he  may  himself  by  bill  of  in- 
terpleader bring  the  claimants  into  court  and  ask  for  its  direction  to 

1  Shermer  v.  Merrill,  33  Mich.  284,     See        *  Koester  v.  Binke,  81  111.  436,  438. 

§  1459.  5  Cope  r.  Wheeler,  41  N.  Y.  303 ;  Mat- 

2  Wicks  y.  Caruthers,  13  Lea,  353.  thews  v.  Duryee,  45  Barb.  69;   Bevier  v. 

3  §  1699  ;  Flower  I'.  Elwood,  66  111.  438  ;  Schoonmaker,  29  How.  Pr.  411  ;  Webster 
Herrlngton  v.  McCollum,  73  111.  476.  i'.  Singley,  53  Ala.  208  ;  Cook  v.  Basley, 

794 


THE   SURPLUS.  [§  1940. 

whom  to  pay  it.  He  is  in  some  sort  a  trustee  of  the  money  in  his 
hands  for  those  entitled  to  it,  and  should  retain  it  until  the  rights 
of  the  parties  are  determined. ^  But  the  pendency  of  a  bill  in  equity 
by  the  mortgagee,  praying  that  the  mortgagor's  grantees  and  others 
interested  in  the  property  under  the  mortgagor  be  compelled  to 
interplead  and  have  their  rights  determined,  is  not  a  bar  to  such 
action  at  law.'-^ 

The  grantor,  and  not  the  trustee  in  a  deed  of  trust,  is  the  proper 
person  to  maintain  an  action  for  the  recovery  of  a  surplus  due  to 
the  grantor  after  satisfaction  of  the  debt  secured.-^  And  the  mort- 
gagor, or  the  person  under  him  entitled  to  the  surplus,  should  bring 
suit  against  the  mortgagee  or  other  person  making  the  sale.^ 

If  a  second  mortgagee,  instead  of  selling  the  title -mortgaged  to 
him,  sells  with  the  assent  of  the  prior  mortgagee  the  entire  title  in 
the  land,  the  surplus  remaining  after  paying  the  first  and  second 
mortgages  belongs  to  the  next  subsequent  parties  in  interest,  and  a 
third  mortgagee  may  maintain  an  action  for  money  had  and  re- 
ceived. The  fact  that  the  sale  was  not  made  subject  to  the  first 
mortgage  does  not  affect  the  rights  of  the  third  mortgagee.^ 

Snit  for  the  surplus  by  the  person  entitled  to  it  is  at  law  and  not 
in  equity.^  Assumpsit  lies  against  the  mortgagee  for  the  surplus 
arising  from  the  sale,  unless  his  obligation  to  pay  it  is  in  the  form 
of  a  covenant  or  agreement  under  seal.'^  Where  by  statute  the 
mortgagee  is  authorized  to  pay  the  surplus  into  court,  or  to  the 
sheriff  or  other  officer  who  makes  the  sale,  such  payment  is  a  good 
defence  to  a  suit  brought  against  him  to  recover  the  surplus.^  In  a 
suit  by  a  subsequent  mortgagee  to  recover  a  surplus  remaining  after 
satisfying  a  prior  mortgage,  the  complaint  should  show  (1)  that  a 

1 23  Mass.  396.     As  to  proceedings  in  New  a  sufficient  ground  for  sustaining  a  plea  in 

York,  to  determine  to  wliom   tlie    surplus  abatement  to  an  action  at  law. 

belongs,  see   Kirby  v.  Fitzgerald,  31  N.  Y.  '^  Gair  v.  Tuttle,  49  Fed.  Rep.  198. 

417;  Matthews  v.  Duryee,  45  Barb.  69.  But  *  Reynolds  v.  Hennessy,  15  R.  I.  215,  2 

now  provision  is  made  by  statute,  wliich  see,  Atl.  Rep.  701  ;  Flanders  v.  Thomas,  12  Wis. 

§  1751.  410. 

1  Bleeker  v.  Graham,  2  Edw.  647  ;  Peo-  5  Cook  v.  Basley,  123  Mass.  396. 

pie  V.  Ulster  Com.  Pleas,    18  Wend.  628;,  c  Ballinger  v.  Bourland,  87  111.  513,  29 

Bevier  v.  Schoonmaker,  29  How.  Pr.  411  ;  Am.  Rep.  69 ;  Reynolds  v.  Hennessy,  15  R. 

Hayes  v.  Woods,  72  Ala.  92,  95;  Yarbor-  I.  215,  2  Atl.  Rep.  701,  and  15  R.  I.   513; 

ough  V.  Wise,  5  Ala.  292.  Mattel  v.  Conant,  156  Mass.  418,  31  N.  E. 

■^  Mattel  V.  Conant,  156  Mass.  418,  31  N.  Rep.  487;  Tompkins  v.  Drennen,  95  Ala. 

E.  Rep.  487.     The  pendency  of  another  ac-  463,  10  So  Rep.  638. 

tion  must  be  pleaded  in  abatement,  and  not  ^  Stocver  r.  Stoever,  9  Serg.  &  R.  (Pa.) 

in  bar,  and  this  plea  must  show  that  the  par-  434  ;  Cope  v.  Wheeler,  41  N.  Y.  303  ;  Hayes 

ties  are  before  that  tribunal,  and  that  their  t'.  Woods,  72  Ala.  92,  95. 

rights  may  be   determined.     Moreover  the  "  Bailey  v.  Merritt,  7  Minn.  159. 
pendency  of  a  bill  in  equity  is  not  usually 

795 


§  1940.]        POWER   OF   SALE   MORTGAGES   AND   TRUST   DEEDS. 

prior  mortgage  was  executed,  and  that  it  contained  a  power  of  sale ; 
(2)  that  under  and  by  virtue  of  such  power  of  sale  the  defendant 
sold  the  property  for  a  specified  sum,  which  was  paid  to  him  ;  (3) 
the  amount  remaining  in  his  hands  as  surplus ;  (4)  the  mortgage  of 
plaintiff ;  and  (5)  a  demand  and  refusal.^ 

If  a  cestui  que  trust  upon  a  sale  under  a  trust  deed  bids  more 
than  enough  to  pay  the  debt  secured,  he  is  legally  bound  for  the 
balance  of  his  bid,  and  upon  his  decease  the  liability  devolves  upon 
his  personal  estate,  and  should  be  enforced  by  suit  against  his  per- 
sonal representatives.  Remedy  cannot  be  had  by  bill  in  equity 
against  his  heirs,  except  upon  an  allegation  of  the  want  or  suffi- 
ciency of  the  personal  estate.^ 

It  has  been  held  that  an  agreement  of  the  mortgagee  to  pay  the 
surplus  to  the  mortgagor  does  not  extend  to  subsequent  incum- 
brancers, so  as  to  give  them  any  right  of  action  for  a  surplus  not 
actually  received  by  the  mortgagee,  but  allowed  by  him  to  be  re- 
tained by  the  purchaser  under  a  claim  of  his  own  upon  the  prop- 
erty. The  court  say  that,  although  a  trust  would  in  such  case 
arise  in  favor  of  the  mortgagor,  yet  he  cannot  be  regarded  as  a  trus- 
tee for  subsequent  incumbrancers  until  the  surplus  money  has  ac- 
tually been  received  by  him.^  The  purchaser,  however,  would  be 
liable  to  the  incumbrancer  entitled  to  the  surplus. 

1  Aultman  v.  Siglinger  (S.  D.),  50  N,  W.        '-  Laughlin  i-.  Heer,  89  111.  119. 
Rep.  911.  8  Russell  v.  Duflon,  4  Lans.  399. 

796 


TABLE  OF   CASES. 


References  are  to  Sections. 


A. 

Adams 

V.  Bigelow 

777 

V.  Brown 

107 

6,  1077,  1133 

Aaron  v.  Warner 

230 

V.  Cameron 

1108,  1587 

Aba  die  v.  Lobero 

557,  1055,  1411 

V.  Cooty 

332,  338 

Abbe  V.  Goodwin 

888,  1052 

V.  Corriston 

37,  684,  689 

V.  Newton 

6.30    : 

V.  Cowherd 

226,  229 

Abbot  V.  Thompson 

366 

V.  Dannis 

456 

Abbott  V.  Allen 

1492,  1500,  1502 

V.  Eggerton 

489 

V.  Banfield 

1088,  1243  ! 

V.  Essex 

1181,  1478,  1577 

V.  Edgerton 

670 : 

V.  Fry 

111,  1500,  1718 

v.  Godfroy 

168,  522,  1414 

V.  Gay 

623 

V.  Gregory 

325,  597 

V.  Haskell 

1640,  1675 

V.  Hampden  Miit.  Fire  Ins.  Co.    425, 

V.  Haydeu 

510 

426 

V.  Hill 

470,  472 

V.  Hanson 

339 

V.  Johnson 

85,  163 

V.  Kasson 

869 

V.  McKenzie 

1105 

V.  Peck 

1857,  1858,  1922 

V.  McPartlin 

1445 

v.  Powell 

731,  875 

V.  Niemann 

379,  621,  625 

V.  Stratten 

163,  171 

V.  Odom 

1587 

V.  Upton 

802,  934 

V.  Parker 

787 

Abel  V.  Heathcote 

1648 

V.  Paynter 

1436 

Abele  v.  McGuigan 

389,  841 

V.  Pilcher 

265 

286,  326,  335 

Abell  V.  Coons 

758 

V.  Pratt 

508,  543 

V.  Screech 

1685 

V.  Robertson 

135,  1493 

Abney  v.  Austin 

664 

V.  Russell 

219 

V.  Pope 

1792 

V.  Sayre 

1095,  1139,  1876,  1879 

V.  Walmsley 

822 

V.  Scott 

1797,  1857 

Abrahams  v.  Clausen 

647 

V.  Smilie 

1090 

Acer  u.  Hotchkiss 

874  a 

V.  Stevens 

69,  242 

V.  Westcott 

548,  553,  574 

V.  Stutzman 

1464 

Ackens  v.  Winston 

74 

V.  Tanner 

151 

Ackerman  v.  Huusicker 

364,365,370,  372, 

V.  Way 

1141 

373 

1-.  Wheeler 

752 

V.  Lyman 

1124 

Addis 

V.  Graham 

493,  526 

Ackerson  v.  Lodi  Branch  R.  R.  Co.      1119, 

Adgei 

V.  Bostick 

1632 

1426 

V.  Pringle 

353, 

527,  821,  1395 

Ackla  V.  Ackla 

974 

Adkins  !•.  Lewis 

341,  1129 

Ackland  v.  Gravcner 

1519 

.iEtna 

Fire  Ins.  Co.  i 

.  Tvler 

397,419,  420 

Acquackanonk  Water  Co.  r.  Manhat- 

^tua 

Ins.  Co.  V.  Baker 

408 

tan  L.  Ins.  Co. 

1621 

V.  Buck 

874  c 

Adair  v.  Adair 

47,  342  c,  788 

V.  Resh 

399 

V.  Davis 

458 

Mtnsi  Life  Ins.  Co.  r 

Bishop 

520,  521,  574 

V.  Mergentheim 

1587 

V 

Brodinax                 112 

V.  Wright 

1526,  1532 

V 

Corn 

848,  857,  870 

Adam  v.  Briggs  Iron  Co. 

706 

V 

Finch 

1202,  1.382, 

Adams's  Appeal 

458 

1425 

Adams  v.  Adams 

335,  500,  .501,  610 

r 

Ford 

574 

V.  Angell 

'  848,  870 

V 

Franks 

626 

r.  Barry 

1173 

V 

Middle 

port        1897  a 

V.  Beadle 

434, 1658 

Agaw 

am  Bank  v.  St 

ever 

384 

797 

TABLE  OF   CASES. 


References  are  to  Sections. 


Aggas  V.  Pickerell  1 1 73 

Agnew  V.  Railroad  Co.     848,  857,  871,  873 

r.  Renwick  873,972,1195 

Ahem  v.  Freeman  877,  877  a 

V.  Goodspeed'  642 

V.  White  376,  469 

Aiken  r.  Bridgeford  1897 

y.  Bruen  1621 

V.  Gale      1089,  1090,  1241,  1283, 

1285,  1349 

V.  Milwaukee  &  St.  Paul  R.  R. 

Co.  855,  872,  16^1 

Aikin  v.  Morris  1492,  1506 

Akerly  v.  Vilas  -  84,  1490 

Alabama  v.  Stanton  227 

Alabama* &   G.  Manuf.  Co.  v.  Robin- 
son 1179  c,  1182  a,  1186 
Alabama,  &c.  R.  Co.  v.  South  &  North 

Ala.  R.  Co.  681 

Alabama  Life  Ins.  &  Trust  Co.  v.  Pett- 

way  1322,  1443 

Albany,  &c.  Canal  Co.  v.  Crawford    311  a, 

327, 335 
Albany  City  Bank  v.  Schermerhorn  1535 
Albany  City  Sav.  Inst.  v.  Burdick  752 

Albee  v.  Curtis  1146 

Albert  v.  Grosvenor  Investment  Co.     1 179, 

1191 

V.  Hamilton  1637,  1638 

Albertson  v.  Fellows  835 

Albright  v.  Cobb  809 

Alden  i;.  Foster  1108  a 

V.  Garver  172 

V.  Goldie  1848,  1849 

„.  Pryal  1500,  1606 

V.  Wilkins  1853,  1905.  1927 

Alderson  v.  Ames  173,  469 

V.  Bell  1673 

r.  White  264,1153 

Aldrich  v.  Cooper  1628 

V.  Lapham  1473 

V.  Martin  387 

V.  Reynolds  697,  1658,  1820 

(;.  Sharp  1663 

V.  Stephens  1412 

V.  Willis  84 

Alexander  v.  Berry  171 

r.  Ronton  112,114 

V.  Brown  1088 

V.  Caldwell  97,  460,  892 

V.  Frary  1414, 1419, 1718 

V.  Greenwood  1646 

V.  Howe  1611 

V.  Knox  134 

V.  Messervey  1612,  1670 

V.  Mortgage  Co.  162 

t;.  Newton  163 

V.  Rea  98,  1464 

V.  Sherman  136 

V.  Shonyo  455,  684 

V.  Welch        723,  724,  728,  1092, 

1621 

Alexandria  v.  Saloy  359 

Alfred  v.  Bank  1336 

Algur  V.  Gardner  642 

798 


Alison  V.  Armstrong  680 
V.  McCune  696 
Allard  v.  Lane  972 
Alleghany  R.  R.  &  Coal  Co.  v.  Casey  271 ,326 
Allen,  ex  parte  1686 
Allen  V.  Allen    114.5,  1146,  1173,  1350,  1931 
V.  Cadwell  539,  548,  586 
V.  Chatfield  1882 
V.  Clark  1090,  1621 
V.  Cole  1874 
r,  Edwards  1108a 
V.  Elderkin  697,  1658 
V.  Everly  46 
V.  First  Nat.  Bank  of  Xenia           134 
V.  Fogg  335 
V.  Frost  26 
V.  Fuget  365,  611 
V.  Hawley  473 
V.  KcUam  18 
V.  Kemp  337 
V.  Kimball  1699 
V.  Lathrop  366 
i;.  Lenoir  118,495,5.33 
V.  Leominster  Sav.  Bank  972 
V.  McCalla  544.  548 
V.  McRae  1060 
V.  Malcolm  1450 
V.  Matideville  584 
V.  Mocr  1214 
V.  Montgomery  167 
V.  Mooney  429.  433 
I'.  Morris  583 
V.  Pancoast  813 
V.  Parker  702,  1719 
V.  Poole           105,  560,  583,  584,  1637 
V.  Ranson  719,  1876 
V.  Robbins  901  a,  1132,  1923 
v.  Sbackelton  1492,  1506 
V.  Smith  894 
V.  Terry  117 
V.  Watertown  Ins.  Co.            409,  413 
V.  Wood  1459 
V.  Wooiiard  44.5,  1220 
Allenby  v.  Dalton  284 
AUendorf  v.  Gaugengigl  67 
Allerton  v.  Belden  1095  • 
AUis  V.  Insurance  Co.  1051 
V.  Sabin  1641,  1670 
Allison  V.  Armstrong  680 
V.  Hagan  557,  558 
V.  Loomis  1053 
V.  McCune  696 
V.  Schmitz  634 
Alsdorf  V.  Reed  1375  a 
Alsop  I'.  Hall  4 
V.  Hutcliings  1621 
Alstin  V.  Cundiff  265,  277 
Alston  V.  Alston  526 
Alt  V.  Banholzer  741,  744 
Alta  Silver  M.  Co.  r.  Mining  Co.  127 
Alvis  V.  Morrison  495,  526 
Alwood  V.  Mansfield  293 
American  Button  Hole  Co.  v.  Burling- 
ton Mut.  Loan  Asso.  1048,1127,1128, 

1135 


TABLE   OF  CASES. 


References  are  to  Sections. 


American  Emigrant  Co.  v.  Call        520,  521 
American  Ins.  Co.  v.  Oakley        1668,  1670, 

1672,  1858 
American  Investment  Co.  v.  Farrar  1521 
American  Life  &  Fire  Ins.  &  Trust  Co. 

V.  Kyerson  1350,  1616 

Amer.  Mortg.  Co.  v.  Inzer  1930 

V.  Jefterson  658 

V.  McCall    1923  a,  1923  b 

r.  Sewell       642,659,661, 

1806,  189;J,  1921 

r.  Turner     667,697,771, 

773,  776,  777, 

1893,  1907 

American  Mut.  Life  Ins.  Co.  v.  Owen    1295 

American  Trust  Co.  v.  Nortli  Belleville 

Quarry  Co.  684 

American  Tube  Co.  v.  Kentucky  Gas 

Co.  1383 

Ames  V.  Birkenhead  Docks  1535 

V.  liolderbaum  102  a 

V.  Mannering  1198 

i;.  N.  0.,  Mobile  &  Tex.  R.  R. 

Co.  924 

?;.  Phelps  508,517 

V.  Riciiardson  400,  401 

Araidowu  v.  Peck  1276,  1285,  1294 

Ammondsou  v.  Ryan  642  a 

Amonett  v.  Amis  149,  153 

Amory  v.  Fairbanks  950,  952 

V.  Lawrence  285,  322,  339,  341 

1144,  1231 

V.  Reilly  217,225 

Amphlett  v.  Hibbard  473,  1423 

Anderson  v.  Anderson  1051,  1051  c 

V.  Austin   1351,  1618,  1751,  1822, 

1858 

I'.  Baughman  97,  490 

V.  Baumgartner  822 

V.  Baxter      47,  1193,  1197,  1210, 

1482 

r.  Culver  913,  1469  a 

V.  Davies  356 

V.  Dugas  458 

V.  Foulke  1643 

?;.  GofF  1716 

V.  Hubble  555,  734 

V.  Kemshead  1519 

V.  Lanterman  1118 

V.  Layton  574 

V.  Lodi  Branch  R.  R.  Co.      1 1 79 

V.  Nagle  465 

V.  Odell  1693 

f.  Pilgram  1215,  1597 

r.  Railroad  Co.  1383 

V.  Sharp  1701 

V.  Strauss  667,  676,  697,  780, 

1658 

V.  Thompson  1 663 

Anding  v.  Davis  303,  324,  3.30,  1152 

Andreas  v.  Hubbard  1072,  1620,  1621, 

1629 

Andrews  r.  Burns  474 

r.  Fiske  1229,1929 


V.  Gillespie 

1426,  1464,  1483, 
1513 

V.  Hart 

134,  814,  817 

V.  Hobgood 

1701  ffl 

V.  Hooper 
V.  Hyde 

1295 
285,  335 

V.  Jones 

1181 

V.  Mathews 

465 

V.  M'Daniel 

1372 

V.  Monilawa 

111 

V.  Morse 

1222 

V.  O'Mahoney 
V.  Poe 

1610, 1642 
639 

V  Pond 

657 

r!"  Powers 

813 

V.  Railroad  Co. 

1838 

V.  Scotton 

198, 1340 

?;.  S  telle 

1404,  1414 

V.  Swanton 

1424 

V.  Thayer 
V.  Torrey 
V.  Welch 

87,616 

660,  663,  842 

1365 

V.  Wolcott 

740 

V.  Wynn 

1456 

Androscoggin  Sav.  Bank  v.  McKenney 

864,  9.50 
Andrus  v.  Vreeland  648,  870 

Angel  V.  Boner  848 

Augier  v.  Agnew  687 

V.  Masterson  3,  1513 

Anglade  v.  St.  Avit  864,  971 

Anglo-American  Land  Co.  w.  Bush         1702 
Anglo-Nev.  Corp.  v.  Nadeau  1222 

Anketel  v.  Converse  563 

Ann  Arbor  Sav.  Bank  v.  Webb        848,  870 
Annapolis  &  Elkridge  R.  R.  Co.  v. 

Gantt  34 

Annely  v.  De  Saussure  680 

Annin  v.  Vandoren  1388 

Anon.  266,542,863,1101,1144,  1154,  1165, 
1166,  1233,  1411,  1438,  1467, 
1526,  1553,  1810 
Anson  v.  Anson  1095, 1395,  1425 

Anstedt  v.  Bentley  627 

Autartcic,  The  907 

Anthon  u.  Batchelor  1642 

Anthony  v.  Anthony  250,  287,  324, 

1083 

V.  Herman  755 

V.  Nve  1420,  1473 

V.  Rogers  1114 

App  V.  Bridge  1336 

Apperson  v.  Burgett  467 

V.  Moore  151 

Applegate  v.  Kingman  1653 

V.  Mason  936,  937 

Appleton  V.  Bovd  135,  704 

Archambau  v.  Green  244,  975,  1193 

Archbold  I'.  Scully  1155 

Archer  17.  Salinas  City  711 

Argall  V.  Pitts  669,  670,  1516,  1536, 

1719  a 
Arledge  v.  Hail  465 

Armeutrout  v.  Gibbons  221,  525 


799 


TABLE   OF   CASES. 


References  are  to  Sections. 


Armitage  ij.  Toll  1632 

V.  Wickliffe  983 

Armor  y.  Spalding  281,335 

Arms  V.  Stockton  1335 

Armstrong  v.  Agricultural  Ins.  Co.  407, 

424  a 

V.  Foley  706 

V.  Freeman  641 

v.  Humphreys  1662,1663, 

1666 

V.  Peirse  973 

V.  Pratt  1396 

V.  Ross  106,  495,  1476 

V.  San  ford  ,  1808,  1815 

V.  Short  1464 

Arnaud  v.  Grigg  757 

Arnold  v.  Crowder  429,  435 

V.  Foot  1080,  H37 

V.  Gaff  1672 

V.  Green  874,  774  a,  877,  878, 

879 

V.  Mattison  283,  314,  335,  336 

V.  Stanfield  1469 

Arnot  V.  Baird  288 

V.  McClure        1751, 1894,  1904,  1905 

V.  Post  889,893,  1425 

Arques  v.  Wasson  150 

Arrington  i>.  Jenkins  1300 

r.  Liscom  1146 

Arthur  v.  Screven  492 

Artley  v.  Morrison  964 

Artz  V.  Grove  279,  299 

Asendorf  v.  Meyer  1185,  1186, 1591 

Ash  V.  Ash  458 

Ashby  V.  Ashby  630 

Ashe  V.  Livingston  458 

Asher  v.  Mitchell  600,  681 

Ashhurst  v.  Montour  Iron  Co.  1355 

Ashley  v.  Cunningham  583 

Ashmole  v.  Wainwright  894 

Ashniore  v.  McDonnell  1402 

Ashton's  Appeal  460,  557,  834 

Ashton  V.  Corrigan  1765 

V.  Milne  1154 

V.  Shepherd  324 

Ashuelot  R.  R.  Co.  v.  Elliot         1243,  1320 

Ashurst  I'.  Lehman  1526 

Askew  V.  Askew  1632 

y.  Sanders  1054,1145,1922 

Askey  v.  Williams  104 

Assurance  Co.  u.  Power  1026 

Astbury,  ex  parte  437,  451 

Astiey  v.  Milles  861 

Astor  V.  Hoyt  44,  708,  785 

r.  Miller  708,785,1935 

V.  Romayne  1634 

V.  Turner  669,  1516,  1518,1526, 

1532,  1536,  1659 

v.  Wells  510,539,564 

Atcheson  v.  Broadhead  665 

Atchison  v.  Surguine  1388 

Athens  Bank  v.  Danforth  1080 

Athertony.  Toney  736 

Athol  Machine  Co.  v.  Fuller  1 1 0 

Athol  Savings  Bank  v.  Pomroy      384,  1312 

800 


Atkins  V.  Faulkner  295 

V.  Paul  600 

V.  Sawver        1050,  1056,  1069,  1229 

V.  Tred'gold  1 1 98 

V.  Volmer  1425 

Atkinson  v.  Angert  866 

V.  Duffy  1834 

V.  Gowdy  1423 

V.  Hewett  687,  695  a 

V.  Marietta  &  Cinn.  R.R.  Co.  124 

V.  Miller  163,166,  168 

V.  Morrissy  894 

V.  Patterson  801,  1194 

V.  Richardson  1642 

V.  Stewart  866 

Atlantic  Dock  Co.  v.  Leavitt  741,  752 

Atterbury  v.  Wallis  566 

Attorney-Gen.  v.  Day  1613 

V.  Wilkins  559 

Attwood  f.  Smith  1398 

Atwatery.  Kinman  1773,  1851,  1920 

V.  Seymour  1647 

V.  Underhill  842 

V.  Walker  1493 

V.  West  1421,  1425,  1597 

Atwood  V.  Fisk  610,  618,  619,  620 

Aubuchon  v.  Bender  460,  555 

Auburn  Congregational  Church  v. 

Walker  65 

Augur  V.  Winslow  901,  1069 

Augusta  Bank  v.  Hamblet  127 

Augustine  v.  Doud  1425,  1606,  1612, 

1639 
Aull  V.  Lee  350,  352 

Aulman  y.  Aulman  627 

Aultman  v.  Gibert  1606 

V.  Rush  1 1 3 

V.  Siglinger  1752  a,  1940 

Aultman-Taylor  Co.  v.  McGeorge  606 

Aurora  Agr.  &  Hort.  Soc.  v.  Paddock    124, 

127 

Aurora  F.  Ins.  Co.  v.  Eddv  422 

Austen  v.  Dodwell  "  901, 1088 

Austin  V.  Austin  388,  392,  918,  1058 

I'.  Bradley  712 

r.  Burbank  813,1377,1471 

t;.  Chittenden  745,  1493 

V.  Downer  242 

V.  Grant  1490 

V.  Shaw  _        795,  799 

V.  Sprague  Manufacturing  Co.     C2, 

630  a 

V.  Underwood  470,  473 

Australian,  &c.  Co.  i'.  Mounsey  129 

Avegno  v.  Schmidt  1338 

Averill  v.  Wade  1621,  1628 

Averett  v.  Ward  1414 

Averill  v.  Guthrie  537 

V.  Loucks  122,  1688 

V.  Taylor  878,  1055, 1066,  1068 

1086,  1380,  1413,1786 

Averitty.  Elliot  1876 

Avery  v.  Dixon  741,  743,  768,  769 

V.  Judd  57,  680 

V.  Ryerson  1425 


TABLE   OF   CASES. 


References  are  to  Sections. 


Avery  v.  Vansickle 

1718 

Bailey  v.  Rockafellovv 

945 

Axtel  v.  Chase 

1464 

V.  Roosa 

1463 

Aycr  V.  Pliila.  &  B.  Face 

Brick  Po.        679, 

V.  Smock 

229 

1887 

V.  Tiniberlake            476.  1322.  1723 

Ajors  V.  Dixon 

741 

,743,  768.769 

V.  Willard 

848 

V.  Hamilton 

1189 

V.  Winn 

39,  818 

V.  Hays 

814,  820,  987 

Baily 

V.  Baily 

1672 

V.  Rivers 

1709 

V.  Smith 

838,1487 

V.  Staley 

874  c,  1114 

Bainb 

igffe  V.  Blair 

1537 

Aymar  v.  Bill 

804,  808 

Baird 

V.  Bank  of  Washington 

134 

Aynsley  v.  Keed 

1065 

V.  Jackson 

433,  681 

Ayrault  v.  Murphy 

583 

V.  McConkey           1709 

a,  1710, 1720 

Ayres  v.  Duprey 

460,  465,  467 

V.  Reininghaus 

279,  295, 335 

V.  Harness 

90 

Baisch  v.  Oakeley 

248,312,326 

V.  H 11  steel 

114 

Bakei 

,  re 

181 

V.  Probasco 

90,93 

Bakei 

V.  Armstrong 

813 

V.  Eiindall 

748,  758 

V.  Baker 

164,  877 

V.  Waite          1144 

119 

2,  1198,  1244, 

V.  Bank  of  La. 

65 

1257,  1262 

V.  Beach 

1541 

V.  Wattson 

355,  934 

V.  Bishop  Hill  Colony 
V.  Bliss 
V.  Clark 

136, 170,173 
547,548 
82.  1597 

B. 

V.  Clepper 
V.  Collins 

469 
617 

Babbitt  v.  Bowen 

1457 

V.  Compton 

217,  220 

Babcocic  V.  Bank 

734 

V.  Firemen's  Fund  Ins. 

Co.    268,277 

V.  Bridge 

372 

V.  Gavitt 

889,  926 

V.  Can  Held 

1641,  1670 

V.  Gladden 

1684 

V.  Jordan 

460 

V.  Griffin 

523 

V.  Lisk 

352,  579 

V.  Halligan 

1857 

V.  Morse 

382,  924 

V.  Lehman 

1181 

V.  Perry 

1618 

V.  Loan  Co. 

853 

V.  Wyman 

285,342,  1152 

V.  McCune 

1202 

Bachdell's  Appeal 

1493 

V.  Marsh 

1576 

Bache  v.  Dosclier 

1439,  1709  a 

V.  Mather 

574,  575 

Bacheller  v.  Bacheller 

265 

V.  Morton 

464 

Bacigalupo  iJ.  Lallenaent 

1774 

V.  Pierson 

585,1075 

Backus  V.  Backus 

1785,1787 

V.  Scott 

1421 

Bacon  v.  Bacon 

574 

V.  Sbephard 

1381 

V.  Bowdoin . 

1063,  1064,  1066 

V.  Terrell 

768,  793,  881 

V.  Brown             70 

,  272 

,279,289,  367 

V.  Thrasher 

270,  271 

V.  Cottrell     • 

360,1128 

V.  Wetton 

1166,  1173 

V.  Gooduow 

848,  877 

V.  Wind 

243 

V.  Kennedy 

1838 

V.  Woodward 

465 

V.  Mclntire 

1195, ll98 

Bakewell  v.  Ojrden 

574 

V.  O'Connor 

552 

Baldr 

dge  V.  Walton 

1777 

V.  Van  Schoonhoven 

479,  987,  989 

Baldwin  v.  Allison 

1785 

Baddeley  v.  Massey 

1208 

V.  Boyd 

12146 

Badger  i'.  Hoover 

113 

V.  Cawthorne 

283 

V-  Phinney 

104 

V.  Doying 

643 

Bagnall  v.  Villar 

684,1116 

V.  Flagg 

1490 

Bailey  v.  iEtna  Ins.  Co. 

1871 

V.  Hatchett 

700,  796 

V.  Bailey 

293, 335 

V.  Howell 

16.54 

V.  Buchanan  Co. 

900 

V.  Jenkins 

60,  242 

V.  Carter 

1144,  1152 

V.  Marshall 

521 

V.  Crim 

710 

V.  Moffett 

874  c,  885 

V.  Fanning  Orphan  School        1462, 

V.  Norton          848,  983,  1204,  1493 

1469,  1662 

V.  Raplee 

353,  805 

V.  Gould 

603,  804 

V.  Rosier 

105 

V.  Knapp 

188 

V.  Sager 

556,  556 

V.  Lincoln  Acade 

ny 

682 

V.  Snowdeu 

500,  1493 

V.  Meiritt 

1855,  1940 

V.  Tinimins 

796 

V.  Metcalf 

893, 

894,  902,  1298 

V.  Tuttle 

744 

V,  My  rick             5 

14,  8 

73,  1090, 1121 

V.  Van  Vorst 

1179 

V.  llichardson 

586,  857 

V.  Whaley 

238 

VOL.    II.                      51 

801 

TABLE   OF   CASES. 


References  are  to  Sections. 


Balen  v.  Mercier 

457 

Bales  V.  Perry 

1862 

Balfe  V.  Lord 

1153,  1547  a 

Balfour  v.  Davis 

1606 

Ball  V.  Green 

708 

V.  Harris 

129 

V.  Riversdale 

1165 

V.  Setzer 

875 

V.  Wyeth 

1204,  1220 

Ballard  v.  Ballard  Vale  Co. 

721 

V.  Carter 

1396,  1413 

V.  Jones 

315, 1060 

V.  Perry 

493 

V.  Williams 

944 

Ballanger  v.  Oswalt 

1188 

Ballin  v.  Dillaye 

109,  116,  753 

Ballinger  v.  Bourland        642  a,  1047,  1868, 

1929,  1940 
V.  Waller  1663 

Ballou  V.  Chicago  &  N.  W.  Eailway 

Co.  1600 

Balnie  v.  Wambaugli  660,  1743 

Baltimore  v.  Williams  544 

Baltimore  &  Ohio  R.  R.  Co.  v.  Trimble 

1193 

Bamberger  v.  Entermille  956  a 

Bamfield  v.  Whipple  627 

Bancker  v.  Hitchcock  1527 

Bancroft  v.  Ashhurst  1897 

V.  Cousen  524 

V.  Sawin  1 109 

Bandendistel  u.  Zabriskie  1504 

Bange  v.  Flint  814,  834 

Bank  r.  Anderson  479,817,820,987 

V.  Arnold  772,  1181,  1516,  1521, 

1530,  1618 

V.  Baumiester  136,  436 

V.  Bradley  220,  226 

V.  Bridgers  460,  401 

V.  Burns  114,  115,  942 

V.  Campbell  608 

u.  Carpenter  163,522,611 

V.  Charles  1616 

V.  Clapp  476 

1-.  Covert     606,  607,  1700,  1701,  1703 

V.  Crary  434 

V.  Davis  560,  570 

V.  Emerson  1709  a 

V.  Finch  374,  377,  379,  924, 942 

V.  Flagg  586,  589 

V.  Frank  460,  475,  482,  608,  842, 

844  a 
V.  Gay  1606 

V.  Godfrey  1324,  1619 

V.  Haggin  504,  517 

V.  Johnson  1180 

V.  Lanahan  1769 

v.  McCarthy  127 

V.  Moore  608,  874  c 

V.  Navarro  1466 

V.  Norwich  Sav.  Soc.  1570 

V.  Page  1354 

V.  Peter  876 

V.  Rasmussen  1606 

V.  Roberts  708 

802 


Bank  v.  Rose  355,  924,  1083 

V.  Rosevelt  842,  906,  1069 

V.  Rutland  &  Wash.  R.  R.  Co.        127 

V.  Tarleton  822,  823,  929,  1701  a 

V.  Thompson  381 

V.  Tishomingo  Sav.  Inst.  513 

r.  Treadweli  1606 

V.  Underwood  113 

V.  Voorhees  1662 

V.  Wakeman  1709  a 

V.  Whyte  299 

Bank's  Appeal  372,  383 

Banker  v.  Brent  1809 

Bankhead  v.  Owen  217,  218 

Banks  v.  Amnion  489 

V.  Clapp  630  a 

V.  Long  460 

V.  McClellan  636,  644,  652,  1493 

V.  Walker  1490,  1502 

Banning  v.  Armstrong  1851 

V.  Bradford  1439,  1440 

r.  Edes  469,  470 

V.  Sabin  1205,  1395 

Bannister  v.  Phelps  627 

Banta  v.  Brown  1670 

V.  Garmo  605,  971 

V.Maxwell  1911 

V.  Vreeland  877,  969 

r.  Wood  1215,1218 

Banton  v.  Shorey  486,  523,  557 

Barber  v.  Babel  83  a,  1202 

V.  Gary  1689,  1860,  1935,  1938 

l:  Milner  301 

V.  Richardson  557 

Barbour  v.  Nichols  523 

V.  Priest  629 

V.  Tompkins  355,  644,  652 

V.  Wiehel  560 

Barcalow  v.  Sanderson  643 

Bard  v.  Fort                    -  1493 

V.  Poole  1426 

V.  Steele                "  1576,  1618 

Bardstown  &  Louisville  R.  R.  Co.  v. 

Metcalfe  1383,  1385 

Bardwell  v.  Collins  1210,  1343 

V.  Howe  634 

Barfield  v.  Jefferson  639 

Barge  v.  Klausman  351,  981,  1857 

Barger  v.  Buckland  1774  a 

Baring  ?;.  Moore  743,  1635 

Bardull  v.  Herwig  1701 

Barkelew  v.  Taylor  332,  341 

Barker  v.  Barker  307,  380 

i;.  Bell  18,465,1229 

V.  Bradley  750 

I'.  Flood  849 

V.  Harlan  97 

V.  International  Bank  655 

V.  Rollins  731 

Barley  v.  Rossa  1163 

Barlow  v.  Gains  1526 

V.  McClintock         1337,  1612,  1618, 

1636 

Barman  v.  Carhart  1895 

Barnaby  v.  Parker  1464 


TABLE   OF   CASES. 


References  are  to  Sections. 


1600,  1604 

515,  553 

1061 

1873,  1889 

11,  150 

991 

1117, 1128 

&    Worcester 

152,  157 
1195,  1439,  1445, 
1589 
1656, 1674 
650 
1196,  1204 
787,  817,  818,  889, 
1247,  1249 
870, 1229 
966,  989 
1777  a 
1563 
547,  562 
1498 
874,  876,  927  a,  971 


Barnard  v.  Bruce 

V.  Campau 
i".  Cushman 
V.  Duncan 
V.  Eaton 
V.  Harrison 
V.  Jcnnison 
V.  Norwich 

R.  R.  Co. 
V.  Onderdonk 

V.  Wilson 

V.  Young 
Barned  v.  Earned 
Barnes  v.  Boardman 

V.  Brown 
V.  Camack 
V.  Ehrraan 
V.  Lee 

V.  M'Clinton 
V.  Moore 
V.  Mott 

V.  National  lus.  Co.  562 

V.  Rackster  1621 

V.  Stoughton  1610 

V.  Trenton  Gas  L.  Co.  570 

V.  Union  School  Township  586 

Barnett,  ex  parte  .  479 

Barnett  v.  Nelson  331,  1122,  1126,  1521 

V.  Zacharias  645 

Barney  v.  Button  495 

V.  Little  488,  520,  521 

V.  McCarty  520 

V.  Myers  722,  1626 

Barnhart  v.  Greenshields  546 

Barnstable  Savings  Bank  i'.  Barrett 

824, 972 

Barnstable  Savings  Bank  v.  Boston     681  a 

Barnum  v.  Bobb  1807  c 

V.  Cook  719 

V.  rhenix     "  834 

Barr  v.  African  Church  641 

V.  Kinard  573 

V.  Vanalstine  1067,  1156,  1421 

Barraque  v.  Manuel  1371 

Barrel!  v.  Sabine  262 

Barrett  v.  Blackmar    669,  1075,  1116,  1406 

V.  Davis  114 

V.  Hartley  1044 

V.  Hinckley    27,  664,  667,  716,  817, 

818,  819 

V.  Mitchell  1518,  1526 

r.  Prentiss  518,1198 

Barroilhet  v.  Bat  telle  166,  171 

Barron  y.  Kennedy  1196,1198 

V.  Martin       1144,  1157,  1163,  1166, 

1171 

r.  Paulling  1123 

Barrows  v.  Baughman  489 

Barry  v.  Guild  1.501,  1606 

Barthel  i'.  Elias  745 

Barthell  v.  Syverson         279,  358,  360,  414, 

415,  1134 
Bartholomew  v.  Hamilton  438 


Bartle  v.  Wilkin 
Bartlett  v.  Bartlett 
V.  Borden 
I'.  Boyd 
V.  Cottle 
r.  Drake 
V.  Fellows 
V.  Franklin 
V.  Gale 
V.  Glasscock 
V.  Johnson 
V.  McNeil 
V.  Sanborn 
V.  Spicer 
V.  Tarbell 
V.  Teah 
V.  Varner 
V.  Wood 
Bartling  v.  Brasuhn 
Barton  v.  Anderson 
V.  Bank 
V.  May 
V.  Sackett 
Bartow  v.  Cleveland 

Bascom  v.  Snoith 
Baskins  v.  Calhoun 
Bass  V.  Buker 
V.  Estill 
V.  Wheless 


1602 

110,  114 

664 

1393 

1220 

81 

1104 

890.  1071 

708,  1935 

546,  548,  586 

1260 

1223 

1241,  1285 

1716 

889 

1769 

460,  554,  557 

442 

293,  335,  339 

1587 

635,  642  a 

241,  1095,  1096,  1111 

1464 

1111,  1450,  1602, 

1603 

848 

644,  745 

177 

488,  495 

459 


Bass  Foundry  Co.  v.  Galleutine      431,  439, 

445 

Basse  v.  Gallegger  1182 

Bassett  v.  Bassett  71,  307 

V.  Bradley  755,  756,  757,  763, 

764 

V.  Daniels  374,  836 

V.  Hathaway  532,  859 

V.  Hughes  758,  764 

V.  Mason  848,  950,  1228,  1567 

V.  McDonel  533,  1467 

V.  Monte  Cristo  Mining  Co.       1207 

V.  Wood  589,  593 

Batchelder  v.  Brickell  1600 

V.  Taylor  1511 

Batchelor  v.  Middleton       1164,  1168,  117.3, 

1419 
Bateman  v.  Burr  1769 

Bates  V.  Am.  Mortg.  Co.  113 

V.  Boston  &  N.  Y.  Cent.  R.  R. 

Co.  128 

V.  Coe  22,  135 

V.  Com.  Ins.  Co.  426 

V.  Con  row  1144,  1194 

V.  Equitable  Ins.  Co.  408 

V.  Norcross  523 

V.  People's,  &c.  Asso.  1080 

V.  Ruddick       1047,  1090,  1425,  1620, 

1626 
Batesville  Institute  v.  Kauffman  817 

Batey  ;•.  Woolfolk  456 

Bath  V.  Miller  154 

Bathgate  v.  Haskin  1496,  1602 

Batte  V.  Stone  494 

Battenhausen  v.  Bullock  344,  966 

803 


TABLE   OF   CASES. 


References  are  to  Sections. 


Batterman  v.  Albright 


697,  1427,  1436, 
1658 

Battershall  v.  Davis  1666 

Battle  V.  Street  283 

Batts  V.  Scott  1792 

Batty  r.  Snook  251,340,719,1045 

Baugher  v.  Merrvman      250,  251,  267,  279, 

299 

Baum  V.  Tonkin  1225 

Bausman  v.  Eads  989,  1922 

V.  Kelley  1785,  1787 

Baxter  v.  Blodgett  1590 

V.  Child  1039 

V.  Dear  244 

V.  Mclntire  351,  352,  924,  1295 

V.  Smack  1351,  1432 

V.  Willey  317,  326 

Bay  V.  Williams  752,  758,  762 

Bayard  v.  McGraw  878,  1397 

Bayles  v.  Husted  1087 

V.  Young  540 

Bayless  v.  Glenn  817,  1462 

Bayley  v.  Bailey       244,  250,  253,  513,  1039 

V.  Williams  626 

Baylies  v.  Biissey  985 

Bayly  v.  Muehe  1414 

Baynard  i-.  Woolley  181,  183 

Baze  V.  Asper  495 

Bazemore  v.  Mullins  322,  711 

Beach  v.  Clark  22 

V.  Cooke    674,  989,  1052,  1093,  1095, 

1096,  1105,  1108,  1108  a,  1566 

V.  Miller  124 

v.  Royce  703 

V.  Shaw  1064 

Beal  V.  Blair     1785,  1834,  1838,  1881,  1895 

V.  Gordon  586 

V.  Stevens  962 

V.  White  633 

Beall  V.  Barclay  1090 

Beals  V.  Clark  629 

V.Cobb  1100 

V.  Neddo  1487 

Beaman  v.  Whitney  166 

Bean  v.  Atlantic  &  St.  Lawrence  R.  R. 

Co.  421 

V.  Bean  917 

V.  Boothby  850,  856 

r.  Brackett  1111 

V.  Mayo  1289 

V.  Smith  557,  559 

V.  Whitcomb  1556,  1567 

Bear  v.  Koenigstein  740  b 

V.  Whisler  224 

Bearce  v.  Baistow  745 

Beard  v.  Fitzgerald  1090,  1092,  1621, 

1631, 1936 

V.  Morris  1637 

r.  Smith  1687,  1693 

Beardsley  v.  Ontario  Bank  452 

V.  Tuttle  947 

Bearss  v.  Ford  244,  251,  260,  264,  267, 

273,  277,  293,  1039 

Beaslev  v.  Henry  608 

Beatio'u.  Butler   589,  1775,  1792, 1854, 1899 

804 


Beattie  v.  Dickinson 
Beatty  v.  Brunimett 
Beaubien  v.  Hindman 
Beauchamp  v.  Lengan 
Beau  pre  v.  Dwyer 


210 

294,  331,  332 

591 

1577 

429 


Beaver  v.  Slanker  491 ,  500,  501 .  874  a,  881 , 

1464 
Beavin  v.  Gove  1273,  1287 

Bebee  v.  Bank  843,  844 

Bechstein  v.  Schultz  1634 

Beck  v.  Allison  1709  « 

V.  Railroad  Co.  681  a 


V.  Ruggles 
Beckel  i'.  Peiticrew 
Becker  v.  Boon 

V.  Howard 
Beckett  v.  Cordley 

V.  Dean 
Beckford  v.  Wade 
Beckman  v.  Sikes 

V.  Wilson 


1083 
496 

899 
268,  320,  335,  341,  714 
555 
701 
1144,  1203 
1658 
271 
Beckwith  v.  Hartford,  Prov.  &  Fishkill 

R.  R.  74, 1141 

V.  Seborn  680,  713 

u.  Windsor  Manuf.  Co.         1187, 

1471 

Bedell  v.  Hoffman  1097 

V.  M'Clellan  1802,  1805 

V.  Security  Co.  1923  h 

Bedford  v.  Burton  225 

V.  Tupper  .504,517,518 

Beebe  v.  Buxton  1322 

Beecher  v.  Ackerman  989 

V.  Ireland  1477 

V.Lewis  1711 

V.  Marquette  &  Pacific  Rolling 

Mill  Co.  1522 

V.  Stephens  1835 

V.  Stevens  120 

Beekman  v.  Fiost  364,  1095 

V.  Gibbs  1610,  1616,  1688 

Beekman  F.  Ins.  Co.  v.  First  M.  E. 


Church 

357,  1690 

Beers  v.  Broome 

'     608,  1057 

V.  Hawley 

608,  1469,  1469 « 

Beevor  v.  Luck 

.     1083 

Began  v.  O'Reilly 
Begbie  v.  Fenwick 
Beisel  v.  Artman 

65 

435 

1179,1347 

Belbaze  v.  Ratto 

463, 504 

Belch  V.  Harvey 

1144 

Belcher,  ex  parte 

436 

Belcher  v.  Chambers 

1716 

V.  Costello 

817 

Belden  v.  Meeker 

479,  480 

Belding  v.  Manly 

821,  822,  1699 

Belknap  v.  Dennison 
V.  Gleason 

870 
1204 

Bell  V.  Banks 

862 

V.  Bird  sail 

1664 

V.  Blair 

1.38 

V.  Carter 

281 

V.  Davis 

553 

V.  Day 
V.  Evans 

642 
464 

TABLE   OF   CASES. 


References  are  to  Sections. 


Jiell  V.  Fiirmers'  Bank  of  Kentucky    84,  85 

V.  Fleming  35:2,".364,  368 

V.  Ferjius  646 

V.  Hammond  726 

V.  Hobaugh  1218 

V.  Leggett  618 

V.  Lent  634 

V.  Lesbini  1496 

V.  Mayor  of  New  York    44, 1 1 16, 1 127, 

1141,  1420,  1421,  1693 

V.  McDufBe  217 

V.  Morse  804,  808 

V.  Pate  1439,  1445 

V.  Pelt  167,  168 

V.  Rad cliff  377 

V.  Railroad  Co.  154 

V.  Shrock  1378,  1427 

V.Simpson  817,819 

V.  Thomas  538 

V.  Twilight        547,  574,  557,  559,  591, 

594,  597, 598,  1749,  1792 

V.  Webb  1884 

V.  Wilkinson  989 

V.  Woodward  848,  913 

Bellamy  v.  Brickenden  409,  420,  1 135 

V.  Cockle  1572 

V.  Sabine  583 

Bellas  V.  Lloyd  524,  574 

V.  McCarty  556 

Belleville  Sav.  Bank  v.  Reis     848, 865,  87 1 , 

872 

Bellington  v.  Welsh  598 

Belloc  V.  Davis  357 

V.  Rogers  1404,  1414,  1573,  1653 

Belloni  v.  Freeborn  769 

Bellows  V.  Railroad-  1241 

V.  Stone  1104 

Bellnne  v.  Wallace  1472 

Belmont  v.  Coman     736,  738,  741,  748,  749, 

751, 752,  1712,  1713 

V.  O'Brien  915 

Belmont  Co.  Branch  Bank  v.  Price        1184 

Belote  V.  Morrison  277,  282,  302 

Belter  v.  Lvon  1648 

Belton  V.  Avery  289,  1060 

V.  Summer  1418 

Beltram  v.  Viller^  680 

Bement  v.  Plattsburgh  &  Montreal 

R.  R.  Co.  452 

Bemis  v.  Call  850,  864,  922 

Bend  v.  Susquehanna  Bridge  Co.  299 

Bendey  v.  Townsend  1375  a,  1606 

Benedict  v.  Gilman  1069,  1075,  1084, 

111,1127,  1128,  1395,  1540, 

1551,  1558,  1568,  1602 

V.  Hunt  754 

V.  Marsh  436 

V.  Mortimer  1550a 

V.  Warriner  1599,  1603 

Benham  v.  Keane  539 

V.  Rowe  1132,  1876,  1886 

Benhard  v.  Harrow  1663 

Beuicia  Agric.  Works  v.  Fstes  618 

Benjamin,  Succession  of  483 

Benjamin  v.  Cavaroc  1338, 1443 


Benjamin  u.  Elmira,  Jeff.  &  Can.  R. 

R.  Co.  152,156 

V.  Loughborough  1797 

Benkendorf  v.  Vincenz  1835,  1859 

Benneson  v.  Bill  1516 

V.  Savage  653,  1190 

Bennet  v.  Williams  584 

Bennett,  px  parte  1878 

Bennett,  in  re  50,  1528 

Bennett  v.  Austin  1636 

U.Bates      736,744,758,917,1141, 

1303,  1492 

y.  Brundagc  1873,1874 

V.  Calhoun  Loan  &  Building 

Asso.  729,  1411 

V.  Conant  1254,  1258,  1261 

V.  Cook  1 139 

V.  Healey  1855 

V.  Keehn  746 

V.  Matson  1664,  1666 

V.  Mattingly  1404,  1491 

V.  Robinson  339,  597 

V.  Solomon  817 

V.  Stevenson  76,  1185 

V.  Tavlor  1469,  1487 

z;.  Union  Bank  250,1769 

V.  Wolverton  296 

Bennock  v.  Whipple  245 
Bensieck  v.  Cook       678  a,  750,  1636,  1652, 

1887 

Bensimer  v.  Fell  166 

Bensley  v.  Homier  644 

Benson  v.  Callaway  504 

V.  Markoe  1787,  1798 

r.  Maxwell  627 

i;.  Stewart  1194,1208,1210 

V.  Tilton  917 

Bent  V.  Coleman  489,  490,  578,  595 

Bentley,  ex  parte  439 

Bentley  v.  Bates  1063 

V.  Long  874 

V.  O'Brvan  293 

V.  Phelps  285,  335 

V.  Vanderheyden  983 

V.  Whittemore  661,  969 

Benton  v.  Baruet  1460 

V.  Jones  282,  289 

V.  Kent  1081 

t'.  Nicoll  244,513,722 

V.  Shreeve  1670 

V.  Sumner  307,  380 

V.  Wood  1334,  1618 

Benton  Co.  v.  Czarlinsky  672,  1204 

Berberick  v.  Fritz  295 

Bercaw  v.  Cockerill  504,  539,  575 

Berdan  v.  Sedgwick  644,  750 

Berdell  t-.  Berdell  255,  719,  1060 

Beie.sford  v.  Ward  704 

Bergen  v.  Bennett     1054, 1767,  1787,  1792, 

1881,  1882 

V.  Carman  1688 

V.  Snedeker  1688 

V.  Urbahn  1469 

Bergen  Savings  Bank  v.  Barrows  728 

Berger  v.  Hiester  953 

805 


TABLE   OF   CASES. 


References  are  to  Sections. 


Bergeron  v.  Richardott  568 
Berkley  v.  Lamb  1638 
Berkshire  L.  Ins.  Co.  v.  Hutchiufrs    752, 763 
Berlin  Building  &  Loan  Asso.  v.  Clif- 
ford 1605 
Bernard  v.  Norton  898 
Beruey  v.  Sewell  1519,  1523,  1525 
Bernhardt  v.  Lymburner  1621,  1622 
Bernstein  v.  Hobelman  1379 
V.  Humes  242,  591,  665 
Berrigan  y.  Fleming  106 
Berrisford  v.  Mihvard  602 
Berry  v.  Boggess  219 
V.  King  1587 
V.  Mutual  Ins.  Company       478,  607 
V.  Skinner           567,  573,  1786,  1792, 

1793 

V.  Whitney  554,  736 

V.  Whittaker  583 

Berryhill  v.  Kirchner  600 

Berthold  v.  Clay  F.  Ins.  Co.                     408 

V.  Fox  37 

V.  Holman  37,  690 

Besser  v.  Hawthorn  47,  873,  1396 

Best  V.  Schermier  1520 

V.  Theil  613,  616 

Bethlehem  v.  Anuis  346,  388,  392,  393 

Betts,  in  re  1190,  1235 

Betts  V.  Birdsall  1664 

V.  Sims  876 

V.  Wurth  439 

Betz  V.  Heebner  :             822,  1701  a 

V.  Muench  143,  144 

V.  Mulin  458 

V.  Verner  143,  684 

Bevans  v.  Dewey  1051  c 

Beverley  ;;.  Brooke  557,  670,  1524 

V.  Ellis  517 

Bevier  ?;.  Schoonmaker  1751,1940 

Beville  v.  Mcintosh  1344,  1467 

Bevin  v.  Powell  1793 

Bever  v.  Monliolland  755 

Bibb  V.  Baker  522 

V.  Hawley  1377 

Bickford  y.  Daniels  241 

Bieknell  v.  Byrnes  1600,  1613,  1633 

Biddel  v.  Briizzolara  761  a,  1 196 

Biddulph  V.  St.  John  901,  1088 

Bidwell  V.  Whitney  1809 

Biehinger  v.  Continental  Bank                 163 

Bier  v.  Smith  865 

Bigelow  V.  Booth  1055,  1488 

V.  Bush  1402,  1414,  1709  6 

V.  Cassedy  1064,  1086,  1439 

V.  Davol  1102,  1395,  1425 

V.  Kinney  104 

V.  Stilphen  94,  1492  a 

v.  Topliff  317,326,504,515 

V.  Wilson  1056,  1064 

Biggers  v.  Bird  292 

Biggerstaff  v.  Loveland  1352 

Biggins  V.  Brockman  954 

Bigler  v.  National  Bank  444 

V.  Waller  1836,1902,  1907 

Bigley  v.  Jones  560 

806 


Billgery  v.  Ferguson 
Billinjis  V.  German  Ins.  Co. 
Billiugsley  v.  Dean 

V.  Niblett 
Billington  v.  Forbes 

V.  Wjigoner 
Bills  V.  Mason 
Bilman  v.  White 
Binford  v.  Adams 
Bingham  i'.  Kirkland 
V.  Myers 
V.  Thompson 
Binsse  v.  Paige 
Birch  V.  Wright 
Bird  V.  Belz 

V.  Davis 

V.  Decker 

V.  Gill 

V.  Keller 

V.  Wilkinson 
Birdsall  v.  Patterson 
Birke  v.  Abbott 


834 

407 

635,  1606 

468 

1676 

649 

229 

587 

874  a 

541 

642  6 

250,  306,  335 

735,  748 

776 

1663 

1483,  1498 

664 

1313 

1152, 1277 

318 

639 

848,  1629 


Birmingham  v.  Md.  Land  &  Perm. 

Homestead  Asso.  638 

Birnie  v.  Main        468,  530,  982,  1204,  1206, 
1211,  1624,  1631,  1719 
Birrell  v.  Scbie  926 

Bisco  i\  Banbury  571,  578 

Jilsdee,  ex  parte  181 

Bishop  V.  Bishop  286,  429 

V.  Church  892 

V.  Clay  F.  &  M.  Ins.  Co.  426 

V.  Cook  505 

i".  Douglass  752,  1406 

V.  Felch  744,  1485 

V.  Jones  •  1359 

V.  O'Conner  1646 

V.  Ogden  793 

V.  Schneider  460,  488,  495,  504, 

515,  518,  519,  555 
V.  Williams  261,  279 

Bishop  Bailey  B.  &  L.  Ass.  v.  Ken- 
nedy 1628 
Bishop  of  Winchester  u.  Beaver  1395,  1411 
Bissell  V.  Besson  629 
V.  Bozman                                     1569 
I'.  Biigbee                    752,  758,  761  a 
V.  Kellogg                               646,  663 
V.  Lewis                                         874  a 
V.  ^Marine  Co.  of  Chicago           1414 
Bissett  V.  Bissett                                         500 
Bitter  V.  Calhoun                                      1861 
Bitzer  v.  Campbell                                    1857 
Bixlv  V.  Mead                                             1675 
Bizzell  I'.  Nix                                        233,  237 
Black  V.  Black  614 
V.  Carroll                                           1740 
V.  Dressell  102 
V.  Galway                                         1355 
V.  Gregg  168 
V.  Long                                       464,  467 
V.  Rockmore                                   1792 
V.  Smith                         901,  1088,  1862 
Blackburn  v.  Tweedie  167 
V.  Warwick                              650 


TABLE   OF   CASES. 


References  are  to  Sections. 


Blackledge  v.  Nelson 
Blackman  v.  Hawks 
Blackstone  Bank  v.  Hill 
Blackwell  v.  Barnett 

V.  Cummings 
V.  McCaine 
V.  Oveiby 
Blackwood  v.  Jones 

V.  Van  Vleet 
Blagge  V.  Miles 
Blagrave  v.  Clunn 
Blain  v.  Rivard 
Blair,  ex  parte 
Blair  i\  Bass 

V.  Carjjenter 
V.  Cliamblin 


1467,  1620 

500 

1683  a 

1204,  1207,  1769, 

1773 

625 

1600 

310,324 

548 

702 

1821 

1436 

877,1118 

796 

294,  817 

1198 

1060 


V.  Chicago  &  Pacific  R.  Company 

1051 

V.  Marsh  229,  235,  1335,  1449 

V.  Mathiott  843 

V.  St.  Louis,  H.  &  K.  R.  Co.  1479 

V.  Shelby  Co.  Agr.  Soc.  1385 

V.  Ward         523,  530,  722,  1624,  1631 

?;.  White  821,917,1628 

Blaisdell  v.  Smith  220,  235, 1195 

;;.  Stevens  548,  552 

Blake  v.  Broughton  944 

V.  Dennett  1240 

r.  Foster  1144 

V.  Graham  523 

V.  Koons  1492  b 

r.  McMurtry  1588,1600 

V.  Sanborn  135,  794,  958,  1283, 

1382 

V.  Taylor  335 

V.  Williams  817 

Blakeley  v.  Cakler  1662 

BUikely  ('.  Twining  834 

Blakemore  v.  Byrnside  269,  287 

V.  Taber  65 

Blanchard  ?;.  Brooks  664,  702 

V.  Colburn  701 

c.  Kenton  297,  673 

V.  Kimball  1307 

V.  Tyler  555,  556,  583 

Blancke  v.  Rogers  429,  447 

Blanco  y.  Foote  1551,1565 

Blandin  v.  Wade  1336,  1474 

Blaney  v.  Bearce  33,  244,  702 

Blankenship  17.  Douglas  591 

Blatchford  v.  Boyden  470 

Blatcbley  v.  Osboru  551,  557,  580 

Blazey  v.  Deli  us  1616,  1618 

l',lazv  v.  McLean  342 

Bleckley  w.  Branyan  871,873 

Bleckman  v.  Butter  881 

Bledsoe  r.  Rader  1513 

Bleeker  »\  Graham  1940 

Blethan  v.  Dwinal        015,  1144,  1158,  1308 

Blight  y.  Banks  555,1620 

Blim  i\  Wilson  895 

Bliss;;.  Weil  1228 

V.  Wiiitncy  435 

Blizzard  v.  Craigmiles  244 


Blockley  v.  Fowler 

Blodgett  V.  Hildreth 
V.  Hobart 
V.  Wadhams 

Blood  V.  Blood 
V.  Light 

Bloodgood  V.  Zeily 


1877,  1886 
706 
97,  1569 
889 
488,495 
1616 
258 


Bloom  V.  Noggle  '  81,  185,  504,  522,  539 
V.  Sims  458,  522,  539 

V.  Van  Rensselaer  1733,  1882 

Bloomer  v.  Henderson     597,  834,  844, 1487 


V.  Mclnerney 
I'.  Sturges 
V.  Waldron 

Bloomingdale  v.  Barnard 
V.  Bowman 

Blossom  V.  Railroad  Co. 

Blount  V.  Carroway 

V.  Spratt 
Bloye's  Trust,  iti  re 
Bludworth  v.  Lake 
Blum  V.  Ellis 

V.  Mitchell 
Blumberg  v.  Birch 
Blumenthaly.  Brainerd 
Blunt  V.  Norris 

V.  Walker 
Blydenburgh  v.  Cotheal 

V.  Northrop 
BIyer  v.  Monholland 


652  a 

1396,  1426,  1588 

129 

1813a 

805 

1608, 1633,  1634, 

1638,  1642 

1752 

1807  6 

1876 

20,  1406 

1232 

nil,  1140 

1324,  1716 

562 

481,  837 

134,817 

657 

1693 

738,  740,751,  752, 

1713 

711 

517,  518,  519 

1586 

741,  742  a,  873 

1055 


Blythe  v.  Richards 
Board  v.  Babcock 
V.  Franklin 
Boardman  v.  Larrabee 
Boarman  v.  Catlett 
Boatman's  Sav.  Bank  v.  Grewe  817 

Boatright  v.  Peck  273 

Bobbitt  V.  Flowers  382 

Bockes  V.  Hathorn  1606 

Bocock  V.  Phipard  328 

Bodine  r.  Edwards  1669 

Bodkin  v.  Merit  1472 

Bodwell  V.  Heaton  97 

V.  Webster  247,  272,  300 

Bodwell  Granite  Co.  v.  Lane  392,  665 

Boebl  V.  Wadgymar 
Boester  v.  Byrne 
Boetcher  v.  Hawkeye  Ins.  Co 
Bogert  V.  Hertell 


1574, 


Bogey  V.  Shute 
Boggess  V.  Lilly 
Boggs  V.  Anderson 
V.  Fowler 
V.  Hargrave 
V.  Varner 
Bogie  V.  Bogie 
Bof^k  V.  Gasscrt 
Bogue  V.  Williams 
Boguille  V.  Faille 
Hohan  i\  Casey 
P.olianan  v.  Pope 
Bohlman  v.  Coffin 
Bolim  V.  Bolim 


163 

1586 

399 

796  a,  959 

1439, 1440 

1359 

586,  593,  594,  597 

1640,  1647 

20,  1406,  1679 

574 

393 

247  a,  266,  277,  304  a 

591,  593 

1338 

500 

761  a 

544,  547 

335 


807 


TABLE   OF    CASES. 


References  are  to  Sections. 


Bohme  r.  Rail  661,662 

Bohn  V.  Davis  1882 

Boice  V.  Michigan  Mutual  Life  Ins. 

Co.  1412 

Boisclair  v.  Jones  1483 

Bolles  V.  Beach  750,  7G8 

V.  Carli  468,  470,  471,  473,  1371 

V.  Chauncey  344,  523,  924,  927, 

927  a 

V.  Duff  1108  a,  1517,  1521,  1523, 

1535,1539,1551,1566,1600, 

1663 

v.  Munnerly  129 

V.  Wade  945 

Boiling  V.  Munchus  610 

V.  Pace  1439,  1445 

Bollinger  f.  Chouteau         1106,  1129,  1144, 

1158, 1414 

V.  Manning  731 

Bollinger  Co.  v.  McDowell  65 

Bolman  v.  Lohman  874  c,  877,  1471 

Bolt  V.  Rogers  283 

Bolton  V.  Ballard  666 

V.  Brewster  13,  715 

Bond  V.  Bond  1751,  1822 

V.  Carroll  1763 

V.  Coke  435,  436 

V.  Dolby  744 

V.  Hopkins  1195 

V.  Liverpool,  L.  &  Globe  Ins. 

Co.  924,  926 

V.  Lock  wood  103 

Bondurant  v.  Taylor  1084 

V.  Watson  456 

Bone  V.  Greenlee  499 

Bonesteel  v.  Sullivan  630 

Bon  ham  v.  Craig  310 

V.  Galloway  802 

V.  Nfwconib  1041 

Bonithon  y.  Hockmore  1132 

Bonnell's  Appeal  1493 

Bonner  v.  Stephens  548,  555 

V.  Ware  574 

Bonnett  v.  Brown  1670 

Bonorden  i'.  Kriz  83  a 

Bonus  y.  Trefz  642/; 

Booker  v.  Armstrong  1192,  1204 

V.  Jones  150 

V.  Waller  265 

Booknan  u.  Burnett  1179 

Boon  V.  Pierpont  65,  66,  1 195 

Boone  v.  Armstrong  528 

V.  Chiles  .542,  557,  710 

U.Clark  1444,1597,1620,1621, 

1622,  1624,  1628,  1631 

V.  Telles  508 

Booraem  v.  Wood  681 

Boorum  j;.  Tucker  1421,1642,16-16, 

1646  a 

Booth  V.  Barnum         70,  344,  346,  547,  548 

r.  Booth  1216 

V.  Clark  1444 

V.  Conn.  Mut.  L.  Ins.  Co.  761  a, 

1716 
V.  Hoskins        288,  342  c,  988  a,  1204 

808 


Booth  V.  Rich 

V.  Robinson 
V.  Ryan 
V.  Swezey 
Boothe  V.  Fiest 
Boozer  v.  Teague 
Boqut  V.  Coburu 


1572 

299 

1503,  1506 

643,  1631 

341 

750 

1055,  1063,  1070, 

1072,  1074 

Borden  V.  Gilbert  1432,1710 

V.  Trustees  643 

Border  States  Sav.  Inst.  v.  Wilcox         586 

Borel  V.  Kappeler  906 

Borland  v.  Stokes  874  b 

Borrows  v.  Ellison  1151 

Borrowscale  v.  Tuttle  583 

Borst  y.  Boyd  827,  1168 

V.  Corey  1209 

V.  Crommie  388,  391 

Bosse  V.  Johnson  715 

Boston  Bank  v.  Chamberlain  105 

r.  Reed  670,771,1307 

Boston,  Concord  &  Montreal  R.  R. 

Co.  V.  Gilmore  452 

Boston  Iron  Co.  v.  King       929, 1105,  1129, 

1141 
Boston  &  Providence  R.  R.  Co.  v.  N. 

Y.  &N.  E.  R.  R.  1516 

Boston  &   Worcester  R.   R.  Co.   v. 

Haven  1133,  1135,  1138 

Bostwick  V.  Brinkerhoft'  1 600 

V.  Menck  1478 

V.  Powers  520 

V.  Pulver  1351 

V.  Stiles  1569 

Boswell  V.  Carlisle  1229 

V.  Goodwin  369,  372,  548,  934 

1468 

Bosworth  v.  Vanddewalker  1442  a 

Boteler  i'.  Brookes  1616 

Botham  y.  MTntier  1267 

Botsford  V.  Botsford  1606 

V.  Burr  332 

Bottineau  v.  ^EtnaL.  Ins.  Co.  1771  a,  1849, 

1857,  1902 
Boulden  v.  Lanahan  583 

Boulignyw.  Fortier  838 

Bound  V.  South  Carolina  Ry.  Co.  1600 

Bound  Brook  Mut.  F.  Ins.  Asso.  t'. 

Nelson  420 

Bourland  V.  Kipp  1787 

Bourne  v.  Bourne  1927,  1931 

V.  Littlefield  354 

Boursot  I'.  Savage  561 

Boutwell  V.  Steiner  506, 1404 

Bouvoy  V.  McNeal  1484 

Bowditch  Mut.  F.  Ins.  Co.  v.  Winslow   399 

Bowe  V.  Bowe  626 

Bo  wen  v.  Barksdale  1632 

V.  Beck  752 

V.  Edwards  7,  1043 

V.  Fassett  505,  508 

V.  Kurtz  750,  768,1335 

V.  Wood  1473 

Bowers  i;.  Johnson  806 

V.  Oyster  185,  492 


TABLE   OF   CASES. 


References  are  to  Sections. 


Bowery  Sav.  Bank  v. 

Richards 

L536 

Bowes  V.  Seeger 

958 

Bowie  I'.  Poor  School  Soc. 

924 

Bowker  v.  Bull 

884 

Bowles  V.  Biauer 

1838,1906 

V.  Hoard 

1694 

Bowling  V.  Cook 

479 

Bowman  v.  Gormy 

624 

V.  Lee 

1211 

V.  Manter 

943,  944 

V.  Mitchell 

1202 

Bowne  v.  Lynde 

743 

V.  Page 

1589  a 

Bowyer  v.  Bampton 

616 

Boxheimer  v.  Gunn 

460,  913,  927, 934 

Boyce  v.  Shiver 

476,  522 

V.  Stanton 

227,  508 

Boyd  V.  Allen 

680 

V.  Anderson 

464 

V.  Beck 

927  a,  1194 

V.  Dodge 

1605,  1708 

V.  Dunlap 

99 

V.  Ellis 

66,  1636 

V.  Engelbrecht 

642  6 

V.  Haseltine 

679 

V.  Hawkins 

1884 

V.  Hudson  City  Academical 

Soc.  1670 

V.  Jones  1383 

V.  Mundorf  471,  536 

r.  Parker  350,386,1469 

V.  Petrie  1795 

V.  Roane  1442  a 

V.  Shaw  1244 

V.  Stone  300 

V.  Sumner  1 606  a 

Bover  v.  Boyer  1545 

V.  Joffrion  456,  583 

Boykin  v.  Rain  1322,  1396 

Boyle  V.  Boyle  720 

V.  Youmans  746 

Boylston  v.  Bain  642  a 

Boyuton  v.  Clinton  &  Essex  Mut. 

Ins.  Co.  427 

V.  Rees  557,  593 

V.  Sawyer  670 

V.  Sisson  1574 

Bozarth  v.  Landers  1440,  1589 

V.  Largent  1333,  1618 

Bozeman  v.  Ivey  226 

Brace  v.  IMarlborough  462,  10S2 

Bracken  v.  Miller  557,  562 

Brackett  v.  Baum  1421,  1589,  1751 

V.  Ridlon  557 

V.  Sears  365 

Braden  v.  Graves  877 

Bradford  f.  Belfield  1787 

V.  Daniel  889 

V.  Harper  226 

I'.  Howe  862 

V.  McConihay  1915 

V.  Tupper  515 

Bradlee  v.  Whitney  548 

Bradley  v.  Aldrich  1709  a 

V.  Ballard  127 


Bradley  v.  Bryan  468 

V.  Chester  Valley  R.  R.  Co. 

1325, 1755, 1792 


V.  Curtis 
V.  Fuller 
V.  George 
V.  Healey 
V.  Heath 
V.  Parkhurst 
V.  Riches 
V.  Snyder 

V.  Tyson 

V.  Whitney 
Bradshaw  v.  Outram 
Brady  ;;.  Waldron 
Bragdon  v.  Hatch 
Bragg  V.  Massie 


226,  229 

35,  702,  706 

1076,  1091 

1235 

906 

1439,  1440, 1474 

561 

360,  1075,  1333, 

1395 

1914 

547 

1414,  1417 

684 

1240,  1835 

277,  282,  286 


V.  N.  E.  Mut.  Fire  Ins.  Co, 


Brahm  v.  Dietsch 
Brainard  v.  Cooper 


425, 

427 

1.545 

874,  1069,  1086,  1110, 

1395,  1436 

586 


749,  752,  7( 


V.  Hudson 
Brainerd  v.  Brainerd 
Braman  v.  Bingham 

V.  Dowse 

V.  Wilkinson 
Bramhle  v.  Kingsbury 
Bramhall  v.  Flood 

V.  Hutchinson 
Bramlett  v.  Reily 
Branch  v.  Griffin 
Branch  Bank  v.  Fry 

V.  Hunt 
Brandlyn  v.  Ord 
Brandon  v.  Brandon 
Brandt  v.  Thompson 
Brannon  v.  Hursell 
Brant  v.  Robertson 
Brantley  v.  West 
Branyan  v.  Kay 
Brasher  i\  Cortlandt 
Brasted  v.  Sutton 
Brastow  v.  Barrett 
Bratton's  Appeal 
Bray  v.  Comer 
Bray  ley  v.  Ellis 
Brayton  v.  Jones 

V.  Merithew 

V.  N.  E.  Coal  Mining  Co 
Brazleton  v.  Bra/leton 
Breckenridge  v.  Auld 

V.  Brooks 
V.  Todd 
Bredcnberg  v.  Landrum 
Breed  v.  Conley 

V.  Eastern  R.  R.  Co. 
Breen  v.  Seward 
Breese  v.  Bange 
V.  Busby 
Brehm  v.  New  York 
Breitcnbach  v.  Turner 
Breitcnbucher  v.  McElroy 
Brem  v.  Lockhart 

809 


(0, 


289 

913 

769 

586 

711 

367 

'  456 

1805,  1807  c 

460,  461,  574 

777 

868, 1638 

557 

1123 

342 

74,  1141 

272,  279 

286 

1606 

1643 

536, 1520 

667,  777 

458 

1490 

956 

1118 

1656 

1741 

606 

318 

1114 

458 

50,  59,  67,  870 

520,  521 

681  a 

837 

478,  1662 

1634,  1672 

1597 

893 

777 

460,  474 


679. 


TABLE   OF   CASES. 


References  are  to  Sections. 


Bremer  v.  Case  554 

?.'.  Dock  Co.  1106,  1107 

Bremer  Co.  Bank  v.  Eastman  820 

Brend  v.  Brend  1067 

Brennan  v.  Ejrgeman  679,  680 

V.  Whitaker  429,  445 

Brereton  v.  Miller  1709  a 


Bresnahan  i\  Bresnahan 

Bressler  v.  Martin 

Brett  V.  Carter 

Breunich  ;;.  Weselman 

Brevoort  v.  Jackson 

V.  Randolph 

Brewer  v.  Brown 
V.  Dyer 
V.  Hyndman 
V.  Longnecker 


393,  1540, 1556 

1459 

152 

981 

1351, 1579 

714, 1080 

568 

758,  761  a 

1055,  1064 

1709 


V.  Nash         876,  1678,  1902,  1920  a 

V.  Staples  737,  951,  1380 

V.  Winchester  1792 

V.  Worthington  769 

Brewster  v.  Carnes     473,  479,480,  791,  964 

V.  Clamfit  99,  367 

V.  Davis  335 

V.  Dry  den  1232 

V.  Madden         177,  618,  631,  1483 

r.  Wakefield  74,1141 

Brey  v.  Barbour  264,  297 

Briant  v.  Jackson  1636,  1670,  1671 

Briar  Hill  Coal  &  Iron  Co.  v.  Atlas         124 

Brice  v.  Watkins  874  a,  877 

Brick  V.  Getsinger  684 

V.  Paine  546 

W.Scott  112 

Brickell  v.  Batchelder  1773,  1777  b 

Brickenkamp  v.  Rees  1862 

Bridenbecker  v.  Lowell  909 

V.  Prescott  1843 

Bridge  V.  Hubbard  644 

Bridgeport  v.  Blinn  1069 

Bridgeport  Savings  Bk.  v.  Eldredge      1569 

Bridgers  v.  Morris  1813,  1821 

Bridges  v.  Ballard  1777  b 

V.  Bidwell  481 

I'.  Blake  113 

V.  Binder  265,  267,  275 

V.  Longman  1766 

V.  Miles  628 

Bridgman  ?).  Johnson  174 

Brier  r.  Brinkman  1684 

Briggs  V-  Briggs  958,  1106,  1873,  1906 

V.  Davis  1063,  1064,  1069 

V.  Fish  16 

V.  Hall  1921 

u.  Hannowald  817,1377 

V.  Jones  604 

V.  Kaufman  1621 

V.  Langford       612,  632,  844,  1807  a 

V.  Latham  830 

V.  Planters'  Bank  220 

V.  Rice  333,  547,  574,  827 

V.  Seymour  744,  889,  1586 

V.  Sholes  1300,  1306 

Brigham  v.  Avery  79 

r.  Brown  508,  614,  1813  o 

810 


Brigham  v.  Claflin  1232 

V.  Fayerweather  103 

r.  Potter  110,616,622 

Bright  r.  Boyd  1128 

V.  Buckman       97,  99,  489,  490,  524, 

530,  583,  591,  593,  1464 

V.  Penny  wit  1663 

V.  Piatt  681  (f 

Brightman  v.  Brightman  584 

Brighton  v.  Doyle  255,  1128 

Brinckerhoff  v.  Lansing  365,  368,  377, 

382,  525,  551,  603,  927,  930, 

1107,  1812 

V.  Thallhimer  1351 

Brindernagle  v.   German    Reformed 

Church  1587 

Brine  v.  Insurance  Co.  1051 

Brinkerhoff  v.  Franklin  1479 

V.  Marvin  368 

Brinkman,  in  re  1908 

Briukman  v.  Jones  244,  246,  252,  253, 

342  c,  544,  548,  552,  586,  598,  600,  715 

V.  Ritzinger  1531 

Brinkmeyer  v.  Browneller  369,  370 

V.  Helbling  370 

Brinley  v.  Mann  130 

Brinson  v.  Berry  99 

Brisbane  v.  Stoughton         1767,  1773,  1777 

Briscoe  v.  Bronaugh  204 

V.  Power  577,  1625 

Prison  V.  Brison  288,  335 

Bristol  V.  Morgan  1432,  1711 

V.  Pearson  924 

Bristol  Sav.  Bank  v.  Stigert  749,  751 

British  Canadian  Loan  Co.  in  re  1821 

Britton's  Appeal  458,  463,  466 

Britton  v.  Hunt  1414 

V.  Updike  1621 

Broach  v.  Barfield  26,  292 

V.  Powell  244,  1232,  1235 

V.  Smith  292 

Broad  v.  Selfe  1044 

Broadbent  v.  Brumback  1606  a 

Brodribb  v.  Tibbetts  1459,  1460 

Brobst  V.  Brock  48,  716,  808,  812,  874, 

915,  1157,  1159,  1197 

Brock  V.  Hidy  236 

Brockenborough  v.  Melton  505 

Brocklehurst  v.  Jessop  1198 

Brockschmidt  v.  Hagebusch  949 

Brockway  y.  Wells  172,1111 

Broderick  v.  Smith  76 

Brogden  v.  Walker  299 

Brokaw  v.  Hudson  917 

Brolasky  v.  Miller  643,  644,  744,  745 

BroUey  v.  Lapham  1296,  1304 

Bronson  v.  Kinzie  1145,  1321 

V.  La  Crosse  R.  R.  Co.  359 

V.  Wanzer  574 

Brooke's  Appeal  458,  504,  517 

Brooke  v.  Morris  1493 

Brookfield  v.  Goodrich  508 

Brookings  v.  White  72,  110,  353 

Brookover  v.  Hurst  632,  667 

Brooks  V.  Allen  1492  a 


TABLE   OF   CASES. 


References  are  to  Sections. 


Brooks  V.  Avery 

V.  Dalrymple 
V.  Jones 
V.  Keister 
V.  Kelly 
V.  Lester 
V.  Owen 
V.  Hice 


641,  G44,  1493 

614 

67 

1051 

701 

365, 487 

460,  744,  848,  1804 

848,  870 


V.  Vt.  Central  R.  R.  Co.  1141, 

1558 

Broome  v.  Beers  551,  603,  1442,  1444, 

1482 
Broomell  v.  Anderson  1355 

Bropliy  Minin{^  Co.  v.  Bropliy  &  Dale 
G.  and  S.  M.  Co.  41,  339,  586,  591, 

597,  710 

Broquet  v.  Sterling  1080,  1134 

Brothers  i-.  Harrill  310 

Brotherton  v.  Hatt  562,  564,  588 

Brou  V.  Becuel  1502 

Brouard  v.  Dumaresque  1863 

Broujihton  v.  Powell  150 

Brounback  v.  Ozias  534 

Broussard  v.  Dugas  136 

Brouwer  v.  Harbeck  659 

Brower  v.  Buxton  1472,  1805 

V.  Witmeyer  468,  470,  471,  482 

Brown  v.  Bank  118  «,  166 

V.  Bates  135,  701,  704 

V.  Becknall  915 

V.  Blydenburgli  483,  791,  964 

V.  Bookstaver  716,  817 

V.  Brown  162,  642  h,  1389,  1937 

V.  Carson  335 

V.  Cascaden  72,  1215,  1225 

V.  Chase  1521,  1532 

V.  Clifford  309 

V.  Cole  883,  1052 

V.  Conger  1402 

V.  Cozard  1632 

V.  Cram  42,  667 

V.  Crookston  Ag.  Asso.  1688, 

1929,  1935 

V.  Dean  244,  511 

V.  Delaney  1785,  1787 

V.  Devine  1207 

V.  Dewey  258,  262,  272,  275, 

279,  325 

V.  Eastman  574 

V.  Farmer  Supply  Depot  169 

V.  Finance  Co.  659  a 

V.  Frost  398,  1052,  1054,  1600, 

1617,  1668 

V.  Gaffnev  251,  255,  293,  513, 

586,  1046,  1079 

V.  Henry  989 

V.  Hermann  116 

V.  Holyoke  245 

V.  Hoover  ■  1231 

V.Johnson  1100,1103 

V.  Johnston  790 

V.  Kahnweiler  1466 

V.  Keeney  Ass'n  1446 

V.  Kiefer  367 

V.  Kirkman  504,  517 


Brown  v.  Laphara  666,  864,  1067 

V.  Leach  389,  668 

V.  Lunt  488 

V.  Lvnch  332 

V.  Mass.  Mut.  L.  Ins.  Co.         1897  a 

V.  Maury  66 

V.  Miner  1597 

V.  Morrill  102  a,  119 

V.  Mortgage  Co.  634 

V.  National  Bank  67 

V.  Nevitt  1425 

V.  Nickle  248,  266,  277 

V.  On-  1718 

V.  People's  Mut.  Ins.  Co.  399 

r.  Phillips  1342,1501,1587 

V.  Provost  113 

V.  Roekhold  1207 

V.  Scott  1355,  1496 

V.  Shcaron  1454 

V.  Simons  530,  714,  723,  1621, 

1624 

V.  Simpson  495 

V.  Smith  812,  1897,  1902 

V.  South  Boston  Sav.  Bank        736, 

1095,  1123 

V.  Staples  68 

V.  Stead  1402 

V.  Stewart  34,  702,  708,  1215 

V.  Stillman  760 

V.  Thompson  1342 

V.  Thurston  697 

V.  Tyler  9.52,  1654 

V.  Volkening  591,  593 

I'.  Wagner  1196 

V.  Welch  554,  555 

V.  Wernwag  950 

V.  Winter  1654,  1715 

V.  Witts  612 

V.  Wright  315 

Brownback  v.  Ozias  534 

Browne  v.  Browne    *        1204,  1.330,  1544  a 

V.  Ferrea  1616 

V.  Lockhart  890,  1071 

V.  Perris  857 

V.  Price  1225 

Brownell's  Estate,  in  re  920 

Browning  v.  Home  Ins.  Co.  406 

I'.  Lavender  1815 

Brownlee  i\  Arnold  1184 

V.  Martin  332,  340 

Bruce,  ex  parte  183,689,697 

Bruce  v.  Bonney         794,  897,  958,  970,  971 

I'.  Slemp  318 

V.  Tilson  237 

Brudenell  r.  Vaux  458 

Brugh  r.  Darst  1618 

Brumagim  ?'.  Chew  937 

Brumbaugh  v.  Shoemaker  1632 

Brumfield  v.  Boutall  272,  281,  331 

Brundage  v.  Missionary  Society,  583, 

1439,  1440,  1445 

Brundred  v.  Walker  1395 

Brunson  v.  Morgan  1893 

Brunswick  &  Albany  R.  R.  Co.  v. 

Hughes  178 

811 


TABLE   OF   CASES. 


References  are  to  Sections. 


Brunswick  Co.  v.  Herricl 

:                   54,  670 

Brunswick   Savings   Inst 

.  V.  Commer- 

cial  Union  Ins.  Co. 

406,  408,  425 

Brnse  v.  Nelson 

971 

Brush  V.  Peterson 

250 

Bryan  v.  Brasius 

715,  812,  1678 

V.  Butts 

13,  44, 1751,  1893 

V.  Cormick 

1516, 1519,  1524 

V.  Covvart 

286 

V.  Harvey 

574,  586 

V.  Ins.  Co. 

2.53,  423 

V.  Kales 

1674 

V.  Pinney 

812 

V.  Tormey 

552 

]5ryant  i'.  Carson  River 

Lumbering 

Co. 

1348 

L'.  Charter  Oak  L.  Ins.  Co.          910 

V.  Crosby 

282,  298 

V.  Damon 

813,  817,  822,  1701 

V.  Erskine 

388,  389,  390,  392, 

395,  668,  1058 

V.  Fairfield 

1.587 

V.  Jackson 

1058 

V.  Pennell 

150 

V.  Stephens 

234, 1628 

Bryant  v.  Vix 

838 

V.  Young 

243 

Bryce  v.  Bowers 

1414 

V.  Massey 

166 

Brydon  v.  Campbell 

494,515 

Bubose  V.  Young 

508 

Biichan  v.  Sumner 

119,  464 

Buchanan  v.  Balkum 

574,  873 

V.  Berkshire 

[ns.  Co.              1179, 

1182,  1185,  1215,  1425,  1530, 

1577 

V.  Drovers'  Nat.  Bank  657 

V.  International  Bank    364,  523, 

525 


V.  Monroe    • 

676 

,  1359,  1759, 
1792 

V.  Reid 

1743 

Buck  V.  Fischer 

1388 

V.  Paine 

548,   552 

V.  Payne 

38 

V.  Phojnix  Ins.  Co. 

397,  398 

V.  Sanders 

701 

Buckingham  v.  Hanna 

529 

Buckley  v.  Daley 

38 

Bucklin  v.  Bucklin 

614 

Buckniaster  i'.  Jackson 

1662 

V.  Kelley 

946 

Buckner  v.  Sessions 

132 

3, 1413,1457 

Buckout  V.  Swift 

144, 

453,  684, 693 

Budd  V.  Van  Orden 

308,  325,341 

Buell  V.  Farwell 

1439 

V.  Tate 

1.503 

V.  Underwood 

1785,  1789 

Buettel  V.  Harmount 

1815 

Buffalo  City  Bank  >:  Ho 

ward 

382 

Buffalo  Steam  Engine  Works 

I'.  Sun 

Mut.  Ins.  Co. 

398,  406,  418 

Buflfington  v.  Gerrish 

460 

Buffum's  Case 

1663 

Buford  V.  Smith 

1181 

812 

Bugbee's  Appeal 
Bugbec  V.  Howard 
Building  Asso.  v.  Boyer 
V.  Clark 
V.  Thompson 
17.  Cam  man 
V.  Vendervere 
Bulkeley  v.  Hope 
Bulkley'iJ.  Chapman 

V.  Day  ten 
Bull  V.  Coe 
V.  Harris 
V.  Meloney 
z,\  Shaw 
V.  Sykes 
V.  Titsworth 
Bull's  Petition 
BuUard  r.  Green 
V.  Leach 
V.  Kay  nor 
Bullock  V.  Battenhousen 
V.  Taylor 
V.  Wallingford 
V.  Wiiipp 
Bull  winker  v.  llykar 
Bumgardner  v.  Allen 
Bumpus  V.  Plainer 
Bunacleugh  v.  Poolmau 
Bunce  v.  Reed  1 


546,  586 
1051 
1176 
474,  539 
638 
1424 
638,  1414 
854 
805 
958 
114,  265,  1463 
121 
1456,  1472 
177,  186 
136, 173 
754,  755 
1654, 1897 
1641,  1673 
848,  978,  1436 
644 
344,  579 
1606 
508 
538 
1475,  1477 
748 
557,  558,  1502 
340 
51,  1860,  1904,  1905, 
1938 


V.  West 
Bunch  V.  Grave 
Bundy  v.  Cunningham 

V.  Iron  Co. 
Bunker  v.  Anderson 
V.  Barron 
v.  Gordon 
V.  Locke 
Bunn  V.  Lindsay 
Bunting  v.  Jones 

V.  Ricks 
Burbank  v.  Gould 

V.  Warwick 
Burch  V.  Carter 
Burchard  v.  Frazer 
Burchell  v.  Osborn 
Burd  V.  Dansdale 
Burden  v.  Thaver 
Burdett  v.  Clay       383 
Burdick  v.  Burdick 

I'.  Jackson 

V.  Wentworth 
Burford  v.  Roseufield 
Burgaime  i\  Spurliug 
Burger  v.  Hughes 
Burgess  v.  Eve 

V.  Stevens 

V.  Southbridge  Sav.  Bank 


1048,  1118 

736,  848 

1588 

736,  752 

67 

244,  924 

560 

684 

877 

468,  473 

548 

769 

837 

574 

357 

1622,  1691 

1355 

774, 785 

817,  927  a,  928,  929 

1720 

163, 164, 1231 

29,  342  c 

1587 


Burget  V.  Greif 

Burgh  V.  Francis 

Burgwin  v.  Richardson 

Burhans  v.  Burhans 

V.  Hutchcson 
V.  Mitchell 


481, 


363 

365 
1287 
1141, 
1596 
1090 

464 
1469  rt 

958 

91,  834,  950 

1609 


TABLE   OF   CASES. 


References  are  to  Sections. 


Burk  V.  Chrisman 
Biirkiun  w.  Burk 
Burke  i:  Adair 
V.  Alleu 
V.  Backus 
V.  Beveridge 
V.  Grant 
V.  (iuiiimy 
V.  Haley 
V.  Lacock 
V.  Lynch 
V.  Miller 
V.  Nichols 
V.  Snell 
Burkett  v.  Munford 
Burkliam  v.  Beaver 
Burleigh  v.  Stott 
Barley  v.  Flint 
Burmeister  v.  Dewey 
Bum  V.  Burn 
Burnap  v.  Cook 
Burnell  v.  Martin 
Burnet  v.  Denniston 


Burnett  r.  Lyford 
r.  Pratt 


1627 

1464 

1830 

5-J7 

1785, 1787 

574 

1187 

751 

1903 

1743 

1155 

1298 

1502 

984 

236 

1402,  1407,  1717 

1198 

1051,  1586 

1632 

464 

1420 

1215 

792,  900,  951,  1081, 

1086,  1683,  1751, 1785,  1799, 

1808,  1845,  1S52 

921 

135,  356,  704,  794, 

958,  1283 

V.  Wright  64,  69,  343,  354 

Burnham  v.  Brennan  548 

V.  De  Bevorse  1233 

V.  Dorr       750,  868,  861 ,  864,  865 


Burnhisel  v.  Firman 
Burns  v.  Anderson 

V.  Berry 

V.  Collins 

V.  Lynde 

V.  Thayer 

Burnside  v.  Merrick 
V.  Terry 
V.  Twitchell 
V.  Wayman 

Burpee  i".  Parker 

Burr  V.  Beers 


1141,  1231 
1141 
525,  527 
405 
90,  110 
927  «,  1103,  1741, 
1876,  1886,  1902,  1904 
123 
26,  60,  258,  261 
433,  435, 447 
168 
1630 
741,748,752,758,760,  761, 
761  a,  762,  1408, 1721 
V.  Borden  1868,  1871 

V.  Insurance  Co.  740a 

V.  Mueller  1887 

V.  Stenton  1691 

V.  Veeder  358,  1134, 1597,  1683 


Burrell  v.  Egremont 
Burridge  v.  Fogg 
Burrill  v.  Naliant  Bank 
Burroughs  v.  Ellis 

V.  Tostevan 
Burrowes  i'.  MuUoy 

Burrows  v.  Bangs 

V.  Stryker 
Burrus  v.  Dawson 
Burson  v.  Andes 

V.  Huntington 
Burt  V.  Baldwin 
V.  Saxton 


1198 

1295 

127,  172 

1577 

1709a 

1052,  1177,  1178, 

1530 

935,  991 

651 

117 

382 

87,  616 

597 

1176,  1189 


1586 

1215 

787,  817,  1377,  1427 

66,  1575 

1207 

1420 

924 

745 

260,  263,  264,  277 

99,  460 

1067 

1637,  1641 

464,  555 

610,  679,  889 

683,  847 

769 

523 


Burt  V.  Thomas 
Burtis  V.  Bradford 
Burton  v.  Baxter 

r.  F^erguson 

V.  Hiutrager 

V.  Lies 

V.  Pressly 

Busby  V.  Finn 

Buse  V.  Page 

Busenbarke  v.  Raraey 

Baser  v.  Shcpard 

Busty  V.  Hardin 

Bush  V.  Bush 

V.  Cooper 

V.  Cushman 

V.  Freer 

V.  Golden 

V.  Lathrop        482,  483,  527,  827,  842, 

844,  844  a 

V.  Mack) in  1652 

V.  Marshall  136,  679,  1483 

V.  Person  682 

V.  Sherman       909  a,  1787,  1800,  1839, 

1852,  1876,  1910,  1922 

V.  Wadsworth  878 

Bushfield  v.  Merer  1180,  1703 

Bussey  v.  Page  689 

Bussing  V.  Crain  506 

Buswell  V.  Peterson  1541,  1562 

Butcher  v.  Stultz  294 

17.  Yocum  546 

Butler  V.  Blackman  1177 

i;.  Butler  320,  335 

V.  Douglass  233 

V.  Hill  151 

V.  Hvland  288,  341 

V.  Ives  133,  850 

r.  Ladue  385,1188 

V.  Maury  465 

V.  Miller  936 

V.  Myer  1494 

r.  Page  428,433,687,1120 

V.  Phelps  598 

1-.  Rovs  706 

V.  Seward  864,  867 

V.  Slocomb  834 

V.  Stevens        546.  554,  591,  593,  598 

V.  Taylor  792,  1086 

V.  Thornburg  468 

V.  Viele  538 

V.  Washington  915 

V.  Williams  226,  232,  1414 

Butman  v.  Hussey  828 

V.  James"  244,  253,  260 

Butt  V.  Ellett  151 

Butterfield  v.  Farnham  1827,  1845,  1855 

V.  Hungerford  1594 

Button  V.  Schroyer  173,  218,  1541 

Buttrick  v.  Hokleu  546,  547 

V.  Wentworth  1929 

Butts  V.  Broughton     644,  1055,  1062, 1065, 

1067,  1121,  1123 

V.  Robson  262 

Buzzell  V.  Cummings  436,  445 

u.  Still  871,1589  a 

813 


TABLE   OF   CASES. 


References  are  to  Sections. 


Bybee  v.  Hageman 

66,  1656 

Callahan's  Appeal 

966 

Byer  v.  Healey 

1335 

Callahan 

's  Estate 

260,  267 

Byerly  v.  Humphrey 

874  c 

Callahan 

V.  Linthicum 

420 

Byers  v.  Brannon 

1395 

Callan  v. 

Wilson 

1876 

V.  Byers 

717, 1114 

Callanan 

V.  Juiid 

834 

V.  Engles 

586 

V.  Shaw 

1516,1529 

V.  Fanners'  Ins.  Co 

399,  422 

Callis  I'. 

Day 

104,  105 

V.  Fowler 

929 

Calloway 

V.  People's  B 

ank         6.30  a,  1732, 

V.  McClanahan 

90 

1768,  17 

94,  1846 

1852,  1932 

Byington  v.  Fountaia 

848,  947 

Calmes  i 

.  McCracken 

469 

Byles  V.  Kelloj^g 

736 

Calverley  v.  Phelp 

1397 

V.  Lawrence 

786 

Calvert  i 

.  Bradley 

785 

V.  Tome 

479, 481 

Calvin  V. 

Bowman 

520,  521 

Bynum  v.  Frederick 

1393,  1606,  1923, 

V 

Duncan 

.  236 

1923  6 

V 

Shinier 

1658 

V.  Preston 

734 

Calvo  V. 

Davies 

735,  740,  741,  742 

Byrd  v.  McDaniel 

1144, 1145, 1192 

Cambrid 

^e  Valley  Ban 

k  V.  Delano         548, 

V.  Tiirpin 

1331,  1502 

55 

2,  574,  5- 

6,  578,  580 

Byrne  v.  Taylor 

1414,  1420 

Camden 

V.  Mayhew 

1642 

Byrnes  v.  Morris 

1879 

Cameron 

V.  Adams 

1053 

1915,  1916 

Byrns  v.  Woodward 

226 

V.  Culkins 

.500,  1512 

Byrom  v.  Chapin 

454, 695 

V.  Irwin 

889, 

1799, 1898 

liyron  v.  May 

1443,  1763 

Cammack  v.  Soran 

460 

Camp  V. 

Coxe 

1229 

V. 

Small 

1333 

c. 

V. 

Smith 

802,  887 

Campbcl 

's  Appeal 

487 

Cabeen  v.  Breckenridge 

586 

Campbel 

V.  Balicock 

1493 

Cable  V.  Ellis 

608,  683,  715 

V.  Baldwin 

1926  a 

V.  Minneapolis  Pack 

ng  Co.          1743 

V.  Beekford 

1166 

Caddick  v.  Cook 

1102,  1402 

V.  Bemis 

1291 

Cadman  v.  Peter 

270,  335 

V.  Birch 

804 

Cady  V.  Jennings 

611 

V.  Bracken ric 

ge 

590 

V.  Shepherd 

121 

V.  Burch 

805 

Cage  V.  Her 

1683  n,  1701a 

V.  Campbell 

666 

Cahalan  v.  Monroe 

557 

f.  Carter 

820,  848 

Caillard  v.  Caillard 

1526 

V.  Davis 

627 

Cain  r.  Cox 

548 

V.  Dearborn 

275,  300,  322,  325, 

V.  Gimou               644, 

1493,  1669,  1671 

328,  342,  600 

V.  Ilanna 

458,  1435 

V.  Galbreath 

133 

Cake's  Appeal 

469 

V.  Gardner 

1646, 1676 

Cake  V.  Cake 

66 

V.  Hamilton 

Mut.  Insurance 

Calder  v.  Chapman          5 

1,  513,  523,  529, 

Co. 

425 

541 

V.  Holt 

1193 

V.  Jenkins 

1421 

V.  Johnson 

1821 

Caldwell  V.  Alsop 

1658 

V.  Johnston 

1337, 

1493,  1626, 

?;.  Carrington 

542 

1704,  1737 

V.  Fraim 

220 

V.  Knights 

856,  865 

V.  Smith 

1322 

r.  Mclvinney 

1123 

V.  Taggart 

1396 

V.  Macomb 

1120, 

1351,  1616 

V.  Walters 

1355 

V.  Maginnis 

1051  c 

Calhoun  v.  Lumpkin 

260,  316 

V.  Mining  Co 

127 

1-.  Memphis  &  Paducah  R. 

V.  Nesbitt 

1697 

R.Co. 

65,  152,  154 

V.  Patterson 

748 

V.  Tullass 

1377 

I'.  Ronkin 

217,  229 

California  Safe  Deposit  Co 

.  V.  Cheney 

V.  Reach 

568,  788 

Electric  L.  Co. 

1589 

V.  Smith    90, 

757,  758 

763,  1223, 

Calkins  v.  Calkins 

44, 1170 

1713,  1714 

V.  Copley 

746 

V.  Swan 

1677, 

1873,  1878 

V.  Isbell 

1096,  1170 

V.  Texas  &  New  Orleans  R. 

V.  Long 

613 

R.  Co. 

157 

V.  Munsel 

1063 

i;.  Tompkins 

113,  614 

Call  V.  Leisner 

1248,  1281 

V.  Trotter 

967,  969,  971 

V.  Palmer 

642  6 

V.  Vedder 

479,  481,  483,  525, 

Callaghan  v.  O'Brien 

1903 

735,  870 

814 


TABLE   OF   CASES. 


References  are  to  Sections. 


1)82 


Campbell  v.  West 

V.  Worthington 
Campion  v.  Kille 
Canada  Build.  Soe.  v.  Teeter 
Canal  Co.  v.  llihsseli 
Canandarqua  Academy  i-.  McKechnie    500, 

1471 


1444 

317 

660,  663 

18J1 

539 


Carpenter  v.  Ingalls 
V.  Ins.  Co. 
V.  Koons 
V.  Longan 


Candec  v.  Burke 
Candler  v.  I'ettit 
CandU'.s.s  v.  Engle 
Canlield  v.  Conkling 

V.  Shear 
Cannon  v.  McDaniel 
V.  Wright 
V.  Young 
Cansler  v.  Sallis 
Cantev  v.  Blair 


1843,  1921,  1922 

1478 

828 

893,  991 

750 

1359 

1427,  1587 

627 

971 

842 


Cape  Girardeau  Co.  v.  Harbison  1204 

Capehart  v.  Biggs      1563,  1586,  1813,  1821 

V.  Dettrick  1204 

Capen  v.  Crowell  1141 

V.  Peckham  429 

V.  Richardson  1250,  126G 

Cupcrton  v.  Landcraft 

Capital  Bank  v.  lliintoon 

Capital  Nat.  Bank  v.  Williams 

Caprez  v.  Trover 

Capron  v-  Attleborough  Bank 

Carbery  v.  Preston 

Carbine  v.  Sebastian 

Card  V.  Jaffray 

V.  Patterson 
Cardwell  v.  Allan 
Carew's  Estate,  in  re 
Carey  v.  Boyle 
V.  Brown 
V.  Giles 
V.  Rawson 

Cargill  V.  Power 

Carhart  v.  Reviere 

Carithers  v.  Stuart 

Carleton  v.  Byington 
v..  Woods 

Carley  v.  Eox 

Carli  V.  Taylor 

Carlisle  v.  Wilkins   • 

Carll  V.  Butman 

Carlton  v.  Jackson 

Carlyon  v.  Lannan 

Carman  v-  Pultz 

Carmicliael,  in  re 

Carmicluiel  v.  Bodfish 

Carnahan  v.  Tousey 

Carnall  v.  Duval 

Carnagie  v.  Morrison 

Carow  V.  Kelly 

Carpenter  v.  Allen 


V.  McDowell 
V.  Millard 
V.  Mitchell 
V.  Mooers 
V.  Muren 
V.  O'Dougherty 
V.  Parker 


1406,  1473 

397 

736,  1621,  1623 

459,  804,  817,  834, 

840,  1487 

495 

141,  1514 

116,  221,  225,  229 

1333 

627 

1368,  1369 

776 


181 
1670 
1492  a 
331 
1768 
1198 
1440 
284 
557 
1179 
1677 
472 
1868,  1898 
630  a 
179,  247,  300 
1051 
229 
877,  1063 
474, 1335,  1488,  1717 
620 
114, 749 
484 
1231 
869,  1292 
944 
306 
901,  958 
103 
1493 
752, 758,  763, 764 
85,  353,  502,  512 
761  a 
644 
431,  834 
62, 
1828 
38^  1229 
13, 696,  1385 
49,  252,  338,  977, 
1309 
495 
848,  870 


V.  Prov.  Washington  Ins. 

Co.  401, 419 

V.  Smith  1676 

V.  Soule  974  a 

i^.  Talbot  1807 

r.  Walker  429,431,444 

Carpentier  v.  Breuham  20,  870,  1207,  1425, 

1679 

V.  Williamson  1425 

Carper  v.  Munger   .  99,  802 

Carpman  v.  Baccastow  465 

Carr  v.  Caldwell  473,  1414 

V.  Carr  309,322,331,341 


V.  Black  Hawk  Mining  Co. 
124 
V.  Bowen 
V.  Canal  Co. 
V.  Carpenter 

V.  Dexter 
V.  Gleason 


V.  Dooley 

V.  Hodge 

V.  Holbrook 

V.  Rising 

V.  Roberts 

V.  Wallace 

V.  Walk  ins 
Carradine  v.  O'Connor 

V.  Wilson 
Carraway  v.  Carraway 
Carriere  v.  Minturn 
Carrigon  v.  Drake 
Carroll  v.  Ballance 
V.  Deimel 
V.  Rossiter 
Carrow  v.  Headley 
Carson  v.  Cochran 

V.  Law 

Carter  ii.  Abshire 
V.  Bennett 
V.  Carter 
V.  Champion 
V.  Evans 
V.  Gunn 
V.  Hallahan 
V.  Hawkins 
V.  Holahan 
V.  Moses 
V.  Neal 

V.  New  Orleans 
V.  Portland 
V.  Rockett 
V.  Sims 
V.  Taylor 
V.  Tice 

V.  Van  Bokkelen 
V.  AValker 
V.  Williams 
Carter  County  Court  v.  Butler 

815 


1897  a 

1135 

220 

241,  262,  268,  275 

769 

551 

1590 

1322,  1443,  1773 

620 

465 

1606,  1606  a 

102  a,  113 

27,  719,  1333 

1443 

1051 

848 

730,  911,  1198,  1201, 

1210,  1483 

1670  a 

1859,  1895 

804 

316,  324 

488,  496,  1436 

314,  342 

26,  292 

292,  468 

489,  490,  552 

755 

646 

1624 

1383 

548 

400,  401 

219 

16,  848,  874 

1207 

959 

1421,  1654 

326 

226 


TABLE   OF   CASES. 


References  are  to  Sections. 


Caruthcrs  v.  Humphrey      36,  717,  889,  893 

V.  Hunt  244 

Carver  v.  Brady       1806,  1806  a,  1821 

V.  Jackson  744 

Gary  v.  Folsom  1621 

V.  Prentiss  938 

V.  Wheeler  1420,  1710 

V.  White  460,  461 

Caryl  v.  Williams        807,  1457,  1480,  1496 

Casady  v.  Bosler  1808 

Casborne  v.  Inglis  1067 

V.  Scarfe  6 

Case  V.  Bartholow  1439 

V.  Fant  870 

V.  Hcirgadine  517 

V.  McCabe  176,  188 

V.  O'Brien  742,  942 

V.  Peters  335 

Case  Maniif.  Co.  v.  Garver  431,  444 

Case  Threshing  Mach.  Co.  i-.  Mitchell  1621 

Casev,  in  re  1235 

Casey  v.  Biittolph  715,  849 

Cash  y.  Belcher  1099 

Cashman  v.  Henry  753,  758 

Casler  v.  Byers  616,  1072,  1606 

V.  Shipman  1678 

Cason  V.  Westfall  885  b 

Casoni  v.  Jerome  1492  a 

Cass  V.  Higenbotam  900 

Cassady  v.  Wallace  1772,  1825 

Cassel  V.  Cassel  13-34 

Casserly  v.  Witherbee         1095,  1108,  1882, 

1915 

Cassidy  v.  Caton  1179 

Cassilly  y.  Rhodes  1658 

Castle  V.  Ca.stle     841  a,  842,  902,  917,  1602 

V.  Noyes  1383 

Castleman  v.  Belt  1666 

Castro  V.  lilies  1575 

Catherwood  v.  Burrows  814,  834 

Catlelt  V.  Starr  281 

Catlin  V.  Bennatt  253 

V.  Fletcher  625 

V.  Glover  1923 

V.  Grissler  1449 

V.  Henton  11 

V.  Washburn  951 

Cattel  V.  Warwick  951 

Catterlin  v.  Armstrong         681,  1075,  1096, 

1118  a,  1127, 1193, 

1202,  1472 

Caudle  v.  Murphy  874  a,  877,  1922 

Caufman  v.  Sayre      1146,  1181,  1337,  1444, 

1547,  1557,  1617 

Caughman  v.  Smith  560 

Cauthorn  v.  Indianapolis  &  Vincennes 

K.  P.  Co.  1230 

Cavalli  V.  Allen  586 

Cavanaugh  v.  Peterson  457,  1359 

Cave  V.  Cave  566 

Cavin  v.  Middleton  547 

Cavis  V.  McClary  777,  1251 

Cawley  v.  Kelley  1490 

Cazenove  v.  Cutler  1085,  1132 

Cazet  V.  Field  616 

816 


Cazet  V.  Hubbell 
Cecil  V.  Dvnes 
V.  Hicks 
Center  v.  McQuesten 

V.  P.  &  M.  Bank 


1642,  1643 
1181, 1454, 1462 
1141 
758 
474,  554,  581, 
583,  584,  817 
Central  Bank   of   Frederick   v.  Cope- 
land  113,626,810 
Central  Gold  Mining  Co.  v.  Piatt  1828 
Central  Trust  Co.  v.  Kneeland  152 
V.  U.  S.  Rolling 

Stock  Co.  1618 

r.  Wabash,  &c.  Ry. 


Co. 

Cerf  V.  Ashley 
Cerney  v.  Pawlot 
Chadbourn  v.  Henderson 
Chadbourne  v.  Gilman 
V.  Rackliff 
Chadwick  v.  Clapp 

i\  Island  Beach  Co 
Chafee  v.  Fourth  Nat.  Bank 

V.  Franklin 
Chaffe  V.  Oliver 

V.  Whitfield 
V.  Wilson 
ChafFraix  v.  Packard 
Chaires  v.  Brady 
Chalubre  v.  Cortelyou 
Chalfin  V.  Malone, 
Chamberlain  v.  Barnes 
V.  Bell 
V.  Dempsey 


574,  670 

1374,  1442 

957,  1204 

1358,  1522 

1444 

1298 

167 

736,  1665 

62,  630  a 

1931, 1933 

874  a,  874  c 

1490 

644 

1615 

291 

1120 

598 

827 

489,  515,  521 

644,  1467,  1494, 

1600,  1605,  1612 

1258,  1261 

1440 


V.  Gardiner 

V.  Lyell 

V.  Meeder  889 

V.  N.  H.  F.  Ins.  Co.  408 

V.  Spargur  538 

V.  Thompson  22,  664 

Chamberlin  v.  Chamberlin  1055 

Chambers  v.  Bookman  113 

V.  Cox  1503 

V.  Goldvvin     281,  650,  1044,  1373, 

1525 

V.  Marks     . 

V.  Nicholson 

Chamblin  i\  Blair 

Champion  v.  Hinkle 

Champlin  v.  Foster 

V.  Laytin 

V.  Williams 

Champney  v.  Coope 


Chance  v.  McWhorter 
Chancellor  i'.  Bell 

V.  Donnell 
V.  Hoxsey 
V.  Traphagen 
Chandler  v.  Chandler 
V.  Cook 
V.  Dyer 
V.  McKinney 
V.  Simmons 
V.  Temple 


1179  a 

1420 

901 

1350,  1538,  1654 

1439,  1590 

970,  1492,  1506  a 

743 

848,  855,  887,  944, 

945 

460,  557 

67 

103 

67 

1350 

265 

1852 

537, 1048, 1069 


105 

103 

84 


TABLE   OF   CASES. 


References  are  to  Sections. 


Chandler  v.  White  987,  1848 

Chaney  v.  State  609 

Chapiu  V.  Billings  720,  1899,  1921 

V.  Cram  507 

V.  First  Universalist  Church       799 

V.  Vermont  &  Mass.  R.  R.  Co.    124 

V.  Walker  1482 

Chaplin  r.  Baker  750,1630 

Chapman  v.  Abrahams  117 

V.  Hunt  913 

V.  Jenkins  357,  382 

V.  Lester  731,  981,  1632 

V.  Miller  459 

V.  Mull  712,  713 

V.  Ogden  268 

V.  Porter  1114 

V.  Robertson  659,  661,  1496, 

1595 

r.  Smith  1116,1118 

V.  Turner  318 

V.  Veach  1658 

V.  Younger  1815 

Chapoton  i\  Creditors  629 

ChappeU's  Case  1906 

Chappell  V.  Allen  817,  984 

V.  Dann  1636 

V.  Rees  1401 

Chappie  V.  Mahon  1014 

Chard  v.  Holt  1406 

Charles  v.  Clagett  281 

y.  Dunbar  1121 

Charter  v.  Graham  458 

V.  Stevens  1857 

Charter  Oak  L.  Ins.  Co.  v.  Stephens      819, 

1198, 1574 
Chase  v.  Abbott  924,  927,  1396,  1420, 

1425 
V.  Box  911 

V.  Brown  1496 

V.  Ewing  677 

V.  First  Nat.  Bank  1097,  1179  b, 

1182  a,  1868 
V.  Gates  1261 

V.  Marston  1257,  1258 

V.  M' Don  aid  537 

V.  McLellan  1053,  1240,  1265 

V.  Palmer  790,  1120,  1239,  1339 

V.  Peck  16.3,  166,  241,  715,  1052, 

1093 
V.  Whittier  1176 

V.  Williams  1086 

V.  Wingate  4-33  a 

V.  Woodbury  1089,  1090,  1621, 

1624 
Chatham  r.  Bradford  517,  518 

Chaiincey  v.  Arnold  90 

Chavener  v.  Wood  606 

Chawner's  Will,  in  re  1766 

Chedel  v.  Millard  1086 

Cheek  i;.  Waldrum  1678 

Cheesebrough  v.  Millard  463,  874,  879, 

1924 

Cheever  v.  Fair  723,  1091,  1576 

V.  Perley  915,1196 

Chcllis  V.  Stearns  42,  675 

VOL.  n.  52 


Cheltenham  Imp.  Co.  v.  Whitehead    1606  !> 

Chelton  v.  Green  670, 696 

Cheney  y.  Campbell  1193,1207 

V.  Duniap  644 

V.  Gleason  624 

V.  Stone  1389 

y.White  177 

V.  Woodruff  398 

Cherry  v.  Bo  wen  251,  1039,  1358 

V.  Home  B.  &  L.  Asso.  1331 

V.  Monro  737,  1380 

Chesebro  v.  Powers  1588 

Chesley  v.  Chesley  1857,  1859 

Chester  v.  Greer  603 

V.  King  1402,  1414 

V.  Wheelwright  348 

Chesterman  v.  Gardner  586,  589,  1502 

Chestnutt  v.  Gann  1774 

Chetwood  y.  Coffin  .  1533 

Chew  V.  Barnet  155 

V.  Buchanan  1619,  1701  a 

V.  Hyman  1062,  1418,  1775 

Chewniug  v.  Proctor  678 

Chicago  V.  Witt  546,  547,  548 

Chicago  &  V.  R.  R.  Co.  v.  Fosdick 

1563,  1690 
Chicago,  B.  &  Q.  R.  R.  Co.  v.  Watson  261 
Chicago,  D.  &  V.  Ry.  Co.  v.  Loewen- 

thal  838 

Chicago  Lumber  Co.  v.  Ashworth  166 

Chicago,  M.  &  P.  Ry.  Co.  v.  Baker       681  a 
Chicago  Mill  Co.  v.  Scully  342,  1 106 

Chicago,  R.  I.  &  P.  R.  R.  v.  Kennedy 

552,  574, 1902,  1913 

Chick  V.  Rollins  915,  1194, 1195 

V.  Willetts  13,  30,71,  1207 

Chickering  v.  Failes  714, 1333 

V.  Fullerton  1442 

Child  V.  Morgan  1841,  1857 

Childress  y.Monette  665,  1322 

Childs  V.  Alexander  1502 

V.  Childs  1070,  1073,  1406,  1678 

V.  Clark  785 

V.  Dolan  681,  1127, 1741,  1905 

V.  Griswold  295 

V.  Hurd  670,  670  a 

V.  Stoddard  927  a,  971 

Chiles  V.  Couley  5.53 

V.  Wallace  697 

Chilton  V.  Braiden  225 

V.  Brooks  738,  742,  1740, 1785, 

1787,  1849  a,  1883,  1915 

Chilver  v.  Weston  1421 

Chinnery  v.  Blackman  670 

y.  Evans  1198 

Chipman  v.  Tucker  87,  616 

Chiswell  y.  Morris  1067 

Chittenden  v.  Gossnge  1226,  1335 

Chitwood  V.  Trimble         221,  226,  229,  232, 

235 
Choato  y.  Kimball  429,  447 

Cholmley  y.  Oxford  1108 

Cholmondeley  u.  Clinton      712,  1072,  1098, 
1158,  1192,  1194,  1401, 1409,  1417 
Chotcau  V.  Allen  1345 

817 


TABLE   OF   CASES. 


References  are  to  Sections. 


Choteau  v.  Jones 

V.  Thompson 
Chouteau  v.  Burlando 
Chowning  v-  Cox 
Chrismaii  v.  Hay 
Christ  Cluirch  v.  Mack 
Christian  i'.  Clark 

IK  Mortg.  Co. 

V.  Newberry 
Christie  r.  Hale 

V.  Herrick 


488, 495 

363,  383,  507,  934 

1204,  1212 

1060 

981 

1654 

230 

138 

924,  927  a,  929 

293,  337,  513,  605 

1373,  1374,  1386, 

1426 

942 

1194 

474 

153,  173,  528 

99 

558 

250, 332 

1500,  1501,  1503 

648,  649,  912,  1186 

557,  558 

217 

546 

1106 

769 

1290 

464 

1053,  1333 

834,  1487 

769, 770 

863,  1107 


Christner  v.  Brown 
Christophers  v.  Sparke 
Christy  v.  Burch 
r.  Dana 
Church  V.  Chapin 
V.  Church 
V.  Cole 
V.  Fisher 
V.  Maloy 
V.  Ruland 
V.  Smith 
Churcher  r.  Guernsey 
Churchill  v.  Btale 
V.  Hunt 
V.  Loring 
V.  Morse 
Chytraus  v.  Smith 
Cicotte  V.  Gagnier 
Cilley  V.  Fenton 

V.  Huse 

Cincinnati,  S.  &  C.  R.  E.  Co.  v.  Sloan    1516 
Cissna  v.  Haines  924,  929,  936,  1618, 

1621 

Citizens'  Bank  v.  Knapp  435,  453 

Citizens'  Mut.  L.  Asso.  v.  Webster  633 

Citizens'  Nat.  Bank  v.  Dayton        490,  924, 

1387,  1428,  1464 

V.  Johnson  121 

V.  Wert  874  b 

Citizens'  Sav.  Bank  v.  Bauer         1590, 1638 

V.  Foster  878 

Citizens'  S.  &  L.  Co.  v.  Uhler  638 

City  Bank  v.  McClellan  63,  834 

City  Council  v.  Ryan  967 

City  Five  Cents  Sav.  Bank  v.  Penn. 

F.  Ins.  Co. 
City  Nat.  Bank  App. 
Clabaugh  v.  Byerly 
Clader  v.  Thomas 
Claflin  V.  Houseman 

V.  Reese 
Clague  V.  Washburn 
Claiborne  v.  Holmes 
Clamorgan  v.  Lane 
Clapp  V.  Halliday 
Clarendon  v.  Barbara 

V.  Maxwell 
Clark  V.  Abbott 
V.  Bosworth 
r.  Brown 
V.  Bullard 
r.  Bush 
I'.  Butler 

818 


406,  413 

469,470,  471,  536 

469, 523 

504,  517 

1232 

941 

488 

458 

508 

744 

857 

1220,  1573,  1709 

1577 

586 

536 

574 

712 

468,  473,  487 


Clark  V.  Carnall 
V.  Clark 
V.  Clough 

I'.  Condit 
V.  Crosby 
V.  Daniels 
i\  Davis 
V.  Farrington 
V.  Finlon 

V.  Flint 
V.  Fontaiu 
V.  Fuller 
V.  Griffin 
V.  Harvey 
r.  Havens 
V.  Henry 

V.  Hobbs 
V.  Holland 
V.  Hyman 
I'.  Iglestrom 
V.  Jackson 
V.  Jenkins 
r.  Kraker 
V.  Landon 
V.  Laughlin 
V.  Long 
V.  Lyon 
i\  Mackin 
V.  McNeal 
V.  Manning 
V.  Munroe 
i\  Oman 
V.  Pease 
I'.  Potter 
r.  Prentice 
V.  Reyburn 
1321 

V.  Simmons 

V.  Smith 
r.  Stilson 
V.  Wilson 


r.  Woodruff 
Clarke  v.  Abingdon 
V.  Bancroft 
V.  Beck 
V.  Bosworth 
I'.  Crownshaw 
V.  Curtis 
V.  Forbes 
V.  Hobinson 

V.  The  Royal  Panopticon 
V.  White 
Clarke,  in  re 
Clarkson  v.  Creely 

I'.  Henderson 
V.  Read 
V.  Skidmore 
Clarksons  v.  Doddridge- 
Clary  ?;.  Owen 


1684 

789,  813,  848,849,  874  c 

711,  1054,  1144, 1171  a, 

1173 

251,  337,  1750 

1265,  1272 

679 

1506 

134 

250,  252,  274,  293,  643, 

1117, 1123 

460,  841 

981,  1090,  1631 

560 

1^797 

1782 

1442 

244,  251,  263,  309,  340, 

1039,  1045 

307 

574,  594 

70,  352 

956 

950 

581 

1857 

340 

955 

1099 

244,  250,  264 

479,  527,  541,  878,  967 

558 

1397 

468,  470,  472 

381 

1297 

1144,  1158 

1439 

11,453,  664,688,  702. 

,  1396,  1401,  1563,  1565, 

1586 

1709/;,  1873,  1874, 

1915 

414,  1124,  1127,  1132 

1607,  1857,  1923 

409,  420,  421,  1774, 

1902 

244,1060 

1593 

346,  1511,  1590 

589 

586 

429 

670,  771 

625 

1920 

1766 

458 

354 

1825 

650 

1643 

1687 

813 

439 


TABLE   OF   CASES. 


References  are  to  Sections. 


Clason  V.  Corley 

V.  Shepherd 
Clawson  17.  Munson 

V.  Kiley 
Clay  V.  Banks 

V.  Hildebrand 
i\  Sharpe 
V.  Willis 
i".  "Wren 


669,  771,  1516,  1659, 

1666 

608 

635,  1606 

61-1 

1331 

1473 

1901 

1695 

80,  668 


Clay  F.  &  M.  Ins.  Co.  r.  Manuf.  Co.      408 
Clayton  l:  Ellis  1051  c,  1619 

Clayton's  Case  908 

Clearwater  v.  Rose  67,  813 

Cleaveland  v.  Boston  Five  Cents  Sav. 

Bank  655 

V.  Clark  1081 

Cleavenger  i-.  Beatli  351,  1469 

Cleaver  v.  Burcky  644,  745 

V.  Green"  1821,  1915,  1922 

V.  Mathews  1496,  1860 

Clement  v.  Bartlett  456 

V.  Bennett  244,  720 

V.  Clement  335 

V.  Shipley  1659 

Clements  v.  Lacy  83  a 

V.  Robinson       .  1659 

demons  t'.  Polder  511,  513 

r.  Harrison  1204 

Cleveland  v.  Boerum  1147,  1411, 1438 

r.  Booth  1378,1459 

V.  Clark  1081 

r.  Cohrs  804,  805,  817 

V.  Harrison  1204 

r.  Martin  2 1 8,  229,  942 

i\  Shannon  465 

V.  Southard  748 

Cleveland  Ins.  Co.  v.  Reed  129,  1147, 

1192,  1195 

Clevinger  v.  Miller  874  a 

i:  Ross  586 

Cliff  V.  Wadsworth  902,  1088 

Clift  V.  White  848,  921 

Clifton  V.  Foster  1232,  1235 

?;.  Livor  1331 

Climie  f.  Wood  441,448 

Cline  r.  Inlow  1406,  1412 

Clinton  v.  Hope  Ins.  Co.    .  418 

V.  Westbrook  22 

Clinton  County  I'.  Cox  1202,1207 

Clinton  Nat.  Bank  r.  Mauwarring  665 

Clore  V.  Lambert  435,  436 

CIos  V.  Boppe  870 

Close  V.  Phipps  903,  1085.  1801,  1819 

Clough  V.  Seay  '     353,  1.335 

Clowes  V.  Dickenson  1092,  1621,  1701 

Clute  17.  Emigrant  Sav.  Bank  874c 

17.  Emmerich  875 

V.  Robison  511,842,844 

Coad  V.  Hume  Cattle  Co.  659  a,  1182a 

Coari  v.  Oiscn  589 

Coates  V.  Woodworth  282,  293 

Cobb  r.  Bord  1743 

r.  D.iy  266,  304,  324,  330,  335, 

1549 


Cobb  1-.  Dyer             736,  874,  877,  966.  969, 

970,971,977 

17.  Lucas  63 

V.  Thornton  1709 

Coburn  v.  Anderson  267 

Cochran  v.  Flint  436 

V.  Fogler  1666 

V.  Goodell  1283,  1296 

17.  Utt  66 

V.  Wimberly  219 

Cochrane  v.  Price  299,  335 

Cock  V.  Bailey  736 

Cockburn  v.  Thompson  1367 

Cockell  V.  Bacon  1215 

Cockes  V.  Sherman  1396 

Cockey  17.  Cole  1740 

V.  Milne  488,  610 

Cockrill  V.  Bane  679 

V.  Johnson  1231 

Coddington  i'.  Bay  460 

Codrington  v.  Parker  1 525 

Cody  17.  Bean  1589 

Coe  V.  Beckwith  1385 

V.  Col.,  P.  &  Ind.  R.  R.  Co. 

124,  149,  452,  575 

V.  Manseau  586 

V.  McBrown  154 

V.  N.  J.  Midland  Rv.  Co.  67,  681  a 

877 

17.  Peacock  156 

i\  Wheeler  658 

I'.  Winters  538 

Coffey  V.  Hunt  670,  702,  774 

Coffin  V.  Adams         758,  761  a,  761  h,  761  c, 

17.  Cooper  1648 

V  Loring  75,  300,  1282 

V.  Parker  733,  1072,  1089 

V.  Ray  465,  559 

Coffing  V.  Taylor  79 

Coffman  v.  Bank  626 

V.  Scoviile  1504,  1791 

Cogan  V.  Cook  253 

Cogbiil,  m  re  731 

Coggill  V.  Milburn  Land  Co.                     693 

Coggs  r.  Bernard  893 

Coggswell  17.  Griffith  560 

17.  Warren  664 

Cogswell  V.  Stout  530,  722,  723 

Cohen  v.  Mitchell  1145 

Cohn  V.  Hoffman  473,  873,  1061,  1081 

V.  Ward  622 

Cohoes  Co.  i;.  Goss  1751,1785,1787, 

1822 

Coiron  ?7.  Miilaudoii  709 

Coit  V.  Fitch  950,  1215 

Coker  v.  Pearsall  777 

V.  Whitlock  676,  684 

Colby  V.  Cato  767 

V.  Crocker  1632 

V.  Place  983 

w.  Poor  1248,1254,1285 

w.  Ruwlcy  1680 

Colcord  V.  Bettinson  1849  a 

Coldcleugh  V.  Johnson  233,  1196,  1204, 

1211,  1211  (J 

819 


TABLE   OF   CASES. 


References  are  to  Sections. 


Cole  V.  Albevs 

376 

V.  Bansemer 

644 

V.  Blake 

1088 

V.  Bolard 

264,312,  324 

V.  Cole 

757,  763 

V.  Conner 

1444 

V.  Edy;erly 

85.5 

V.  Germania  F. 

Ins. 

Co. 

406 

17.  Lee 

614 

V.  Malcolm 

792,  878 

V.  Miller 

1673 

V.  Moffit 

1751,  1822 

V.  Raymond 

679 

V.  Sackett 

924 

V.  Savage 

1813 

V.  Stewart  428,  433,  687 

Cole  Co.  v.  Madden  1675 

Colegrave  v.  Dias  Santos  433  a 

Colehour  v.  State  Sav.  Inst.  681  a,  847, 

1487 

Coleman  v.  Barklew  574,  591,  593 

V.  Billings  495 

V.  Galbreath  378 

V.  Howell  917 

V.  Hunt  1396,  1434 

r.  Smith  117,460,500,686 

V.  Stearns  Manuf.  Co.      436,  446, 

447 

V.  Van  Rensselaer  114,  677, 

807,  1225,  1457 

V.  Whitney  393 

V.  Witherspoon  681,  1490 

Coles  V.  Appleby  865,  945,  1625 

V.  Berryhill  463,  474 

V.  Coles  666 

V.  Forrest  1397,  1418 

V.  Withers        220,  226,  907,  924,  926, 

1204 

V.  Yorks  1668 

Colesbury  v.  Dart  129 

Colgan  V.  McNamara  1836,  1843,  1844 

Colgin  V.  Henley  750 

Colgrove  v.  Tallman  742 

Collamer  v.  Langdon  700,  926 

Collar  V.  Harrison  991,  1607,  1925 

CoUerd  v.  Huson  607,  822,  1701  a 

Collier  v.  Ervin  1472,  1590 

V.  Faulk  367 

V.  Whipple  1640,  1672,  1675, 

1676 

Collins  V.  Adams  877 

V.  Blantern  618,  619 

V.  Carlisle  374,  1453 

V.  Hopkins  1786,  1792 

V.  Riggs  1075 

V.  Rowe  735,  748 

V.  Standish  1924 

V.  Stocking  848,  870,  906,  917 

V.  Tillou  289 

V.  Torry         664,  666,  701,  867,  915, 

1195 

V.  Wassell  113 

Collins,  in  re  1721 

Collins's  Petition  1710 

Colman  v.  Duke  of  St.  Albans       697,  1120 

820 


Colman  v.  Packard 

V.  Post 
Colomer  v.  Morgan 
Colquhoun  v.  Atkinsons 
Colquitt  V.  Thomas 
Colsell  V.  Budd 
Colt  V.  McConnell 
Colton  V.  Camp 

V.  Colton 

V.  Smith 
Columbia  Bank  v.  Jacobs 
Columbia  Co.  v.  King 


80,  668,  1289 

1489 

511 

537 

557 

916 

612 

1709  a 

871 

703,  706 

514 

653 


Columbian  Building  Asso.  v.  Crump 

899,  902 

Columbian  Ins.  Co.  v.  Lawrence  401 

Columbus  Buggy  Co.  i;.  Graves  465 

Colvin  u.  Buckle  1187 

Colwell  V.  Hamilton  1355 

V.  Warner  1057,  1569 

V.  Woods  244,  277 

Colyer  v.  Colver  863 

Combs  V.  Goldsworthy  672,  1204,  1211 

Comegys  v.  Clarke  113 

V.  Davidson  1506  a 

Comer  v.  Bray  1377  a 

V.  Sheehan  1876  a 

Comley  i'.  Hendricks  1440 

Commercial,  &c.  Asso.  v.  Parker  1322 

Commercial  &  Sav.  Bank  v.  Corbett      1526 

Commercial  Bank  v.  Cunningham  365, 

377,  379,  382 

V.  Reckless  1454 

V.  Slater  1414 

V.  W.  R.  Bank  1621 

Commercial  Ex.  Bank  w.  McLeod  351, 

613 

Commercial  Ins.  Co.  v.  Spankneble        422 

Commonwealth  i\  Councils  842 

V.  Gould  919 

V.  Ragsdale  1663 

17.  Smith  124 

V.  Wilmington  &  N.  R. 

P.  Co.  972 

Comstock  V.  Comstock  1439 

V.  Drohan     741, 1223,  1713,  1721 

i;.  Hitt  740,748,751.758 

V.  Michael  1123,  1137,  1747 

V.  Scales  150,  151 

V.  Smith  754,  867 

V.  Stewart  281 

Comyns  v.  Comyns  1044 

Conant  v.  Riseborough  293 

Conard  V.  Atlantic  Ins.  Co.  11,368 

Conaway  v.  Carjjenter  1498 

Concklin  v.  Coddiugton  1602 

Concord  Bank  v.  Bellis  106 

Concord  Union  Mut.  F.  Ins.  Co.  v. 

Woodbury  408,  409,  420,  421,  1240, 

1273 

Condit  V.  Baldwin  642 

V.  Niagara  F.  Ins.  Co. 

V.  Ticheuor  308 

V.  Wilson  467,  546,  548,  557 

Condon  !7.  Maynard  1175,1915 

Cone  u.  Combs  1516,1521 


TABLE   OF   CASES. 


References  are  to  Sections. 


Cone  V.  Niagara  F.  Ins.  Co. 

411,  420 

V.  Paute 

1516,  1520 

Coney  v.  Sanders 

1792 

Conger  v.  Ring 

1636 

Couihe  V.  Fales 

735 

Conklin  v.  Bowman              1464, 

1503,  1609 

V.  Conklin 

897 

Conkling  v.  Secor  Co. 

744 

Conlee  v.  McDowell 

586,  589 

Conn  V.  Tonner 

478 

Connecticut  v.  Bradish 

559 

V.  Jackson 

650,  1139 

Conn.  Mut.  L.  Ins-  Co.  v.  Bulte     680,  1080 

V.  Crawford       1069 

V.  Cushman       1051 

r.  Jones  1215, 

1220,  1221,  1423 

V.  Mayer  742  a 

V.  Scammon        407, 

410,  910 

V.  Talbot    473,  479, 

957,  1004 

r.  Tyler    741,  1709, 

1715 

Connelly  r.  Dickson  1526,  1.531  a 

Conner  v.  Banks  226,  229 

V.  Chase  317,  330 

^  V.  Smith  1496 

V.  Whitmore  700,  703 

r.  Williams  117 

Conners  v.  Holland  5.52,  1792 

Connolly  v.  Belt  1857,  1862 

V.  Giddings  '  244 

V.  Hammond  1876,  1882,  1922 

Connor  v.  Atwood  264,  332 

V.  Bellamout  660 

V.  Eddy  ^68 

Conover  v.  Brown  750 

r.  Grover  113,414,1536 

V.  Hobart  634,  736,  739,  745, 

1494 

V.  Mut.  Ins.  Co.  422 

V.  Sealy  705,  1498 

V.  Von  Mater       538,  608,  642, 643 

Conrad  v.  Gibbon  634,  1606  a 

V.  Harrison  1621 

V.  MuUison  1442 

V.  Starr  487 

Constant  v.  Am.  Bap.  &c.  Soc.       460,  487, 

562,  564,  1473 

V.  University  460 

Continental  Ins.  Co.  v.  Ilulman  408 

Converse  v.  Bank  1929,  1936 

V.  Blumrich  548,  552,  579 

V.  Clay  1613 

r.  Cook  740,752,1569 

V.  Michigan  Dairy  Co.     817,  1439 

V.  Porter  517 

V.  Searls  789 

V.  Ware  Sav.  Bank  1090 

Conway  v.  Alexander      258,  259,  262,  265, 

272 

V.  Sherman  1335 

r.  Wilson  110,113 

Conwell  V.  Clifford  612,  1490,  1503 


Conwell  V.  Evill 

V.  McCowan 
Conyers  v.  Mericles 
Cooch  V.  Gerry 
Coogan  V.  Burling  Mills 
Cook  V.  Barnes 

V.  Bartholomew 

V.  Basley 

V.  Clark 

V.  Colyer 

V.  Cooper 

V.  Dawson 

V.  De  la  Guerra 

V.  Farnham 

V.  Finkler 

V.  Fowler 

V.  Gudger 

V.  Guerra 

V.  Hall 

V.  Hilliard 

V.  Holbrook 

V.  Johnson 

V.  Kraft 

V.  Mancius 

V.  McFarland 


294,  335 

501,  881 

1464 

24,  664,  701 

65 

620 

346,  388 

1853,  1929,  1940 

73 

297 

436 

1766 

1482,  1483 

1648 

1144 

1141 

310 

773 

505 

1902 

629 

777 

358,  1134 

1048 

1335 


V.  Parham        458,  460,  461,  670,  809, 

1196 

V.  Patterson  1806,  1808 

V.  Stale  609 

V.  Stone  525 

V.  Travis  527,  541,  557,  599 

V.  Wiles  1667 

Cooke  V.  Brown  1708 

V.  Cooper        47,  715,  808,  812,  1636, 

1678 

V.  Crawford  1787 

V.  Pennington  1591 

V.  Watson  127,  .528 

Cookes  V.  Culbertson  .306,  1117,  1204 

Cool  V.  Higgins  1646 

Cooley  V.  Harris  842 

V.  Hobart  121,  611,  1454 

Coolidge  V.  Smith  738,  7.53 

Coombe,  ex  parte  183 

Coombs  V.  Beaumont  441 

V.  Carr  1069,  1095,  1396 

V.  Jenkins  766 

V.  Warreu  713 

Cooper  V.  Adams  436 

r.  Bigly  66,  523,  530,  1621 

V.  Cole  697 

V.  Davis  684 

D.  Foss  758,1637,1713 

V.  Harvey  429,  436,  444,  445 

y.  Hornsby  1723,  1864,  1876  « 

V.  Jackson  680 

V.  Longhlin  1397 

V.  Martin  1395,  1425 

V.  Newland  804,  805,  1376 

V.  Skeel  295 

V.  Smith  841,  842,  1457 

v.  Ulmann  821,822,1701 

V.  Whitney  340 

Coopers  v.  Wolf  ••'''■2 

Coon.  Smith  697,1663 

821 


TABLE    OF   CASES. 


References  are  to  Sections. 


Coor  V.  Spicer  616 

Cope  V.  Alden  657 

V.  Romevue  446 

V.  Wheeler       C34,  657,  658,  745,  1940 

Copeland  v.  Copelaud  538 

V.  Mercantile  Ins.  Co.  130 

V.  Yoakum  244,  1101 

Copelin  v.  Shiiler  504 

Copis  V.  Middleton  882 

Copleston  v.  Boxwill  272 

Copperthwait  2\  Dummer  1222 

Coppin  V.  Fernyhough  578 

V.  Gray  1172 

('oppring  i\  Cooke  1121 

Corbett  v.  Howell  679 

V.  Rice  1348 

V.  Waterman     741,  742  a,  748,  752, 

758 
V.  Woodward        620,  629,  838,  841 
Corbin  r.  Reed  630 

V.  Sullivan  574 

Corbit  V.  Smith  295,  335 

Corbitt  V.  Clenny  574 

Corcoran  v.  Doll  1141 

Cord  V.  Hirsch  1402,  140-1,  1406,  1410, 

1608 

V.  Southwell  1618,  1683 

Corder  i;.  Morgan  1792,1901 

CordevioUe  t'.  Dawson  511 

Cordova  v.  Hood  545,  574,  576 

Cordis  V.  Hargrave  752 

Corey  v.  Alderman  971 

Cork  V.  Russell  1436 

Corles  V.  Lashly  1815 

Corliss  I'.  McLagin  447 

Cormerais  v.  Genella  1324,  1720, 

•      1725, 1773 

Cornelius  y.  Halsey  1456,1457 

Cornell  i-.  Corbin  1492 

V.  Hall  258,  262,  279 

i;.  Hichens  1.34,616,814,834, 

1487 

V.  Newkirk  1922 

V.  Prescott  741,  551,  755,  768 

V.  WoodruflF  713,  1719  a 

CornExch.  Ins.  Co.  v.  Babcock       109,  HI 

Corning  v.  Baxter  1467 

V.  Ludlum  663 

V.  Murray  525,  535 

V.  Smith"  1413,  1439,  1440, 

1445,  1589 

Cornish  v.  Bryan  842,  847 

V.  Frees  470,  679 

Cornog  V.  Cornog  24 

V.  Fuller  479 

Corpman  v.  Baccastow  253,  515,  1755 

Corrothers  v.  Harris  1915. 

Cortleyeu  v.  Hathaway         1516,  1520,  1533 

Corwin  v.  Benham  1646 

V.  Collett  951 

Cory  V.  Eyre  542 

Cosby  V.  Buchanan     244,  245,  258,  279,  286 

Costello  V.  Meade  987 

Coster,  in  re  878,  953,  961 

Coster  V.  Bank  458,  534 

822 


Coster  y.  Brown  1441,  1509 

V.  Griswold  847 

V.  Monroe  Manuf.  Co.  1500 

Costigan  v.  Hastier  776 

Cotheal  V.  Blydenburgh  660 

Gotten  V.  Blocker  665 

Cotterell  v.  Long  163,  250,  311 

V.  Purchase  243,  271,  322,  328 

Cottinghain  v.  Springer  1229 

Cottman  v.  Martin  198 

Cotton,  ex  parte  441 

Cotton  V.  Carlisle  18,  665 

V.  Graham  612 

V.  McKee  246 

Cottrell  V.  Adams  787,  817 

Couch  V.  Stevens  926,  940,  1270 

Coudert  v.  Coudert  877 

Couger  V.  Lancaster  677 

Coughlin  V.  Gray  680 

Coutter  V.  Bower  1452 

V.  Herrod  1642 

V.  Lumpkin  630  a 

Council  Bluffs  Lodge  v.  Billups  575 

Coursen  v.  Caufield  1505 

Courtney,  iti  re  184 

Courtney  v.  Carr  29 

V.  Scott  165 

Courtenay  t>.  Williams  917 

Couse  V.  Boyles  1500 

Coutant  V.  Servoss     104,  129,  3.53,  722,  981 

Cover  V.  Black  462,  464 

Covey  I'.  Pittsburgh,  Fort  Wayne  & 

Chicago  R.  R.  Co.  452 

Cowan  V.  Green  458 

Coward  v.  Culver  466 

Cowardin  v.  Anderson  464,  468 

Cowden's  Estate  1621 

Cowdrey  v.  Coit  1502 

V.  Galveston  R.  R.  Co.  1535 

Cowdrey  i'.  Day  1040 

Cowell  V.  Buckelew  1584,  1717 

Cowen  V.  Arnold  1659 

V.  Loomis  586,  979 

Cowie  V.  Fisher  915 

Cowing  V.  Rogers  336,  1549 

Cowles  V.  Hardin  526 

V.  Marble  69,  893,  1012,  1070 

V.Marks  116,117 

V.  Raguet  619,  626 

r.  AVoodruff  1482,  1493 

Cowley  v.  Shelby  1469 

Cox  V.  Carson  471 

V.  Champneys  1519 

V.  Cutter      '  964 

V.  Douglas  1493 

V.  Esteb  489 

V.  Garst  866 

V.  Hoxie  744,  1079 

V.  Ins.  Co.  642  a 

V.  Jones  586 

i;.  Kille  1183a 

V.  Ledward  848,  917,  957 

V.  Palmer  95 

V.  Ratcliffe  294 

V.  Smith  650,  1606 


TABLE   OF   CASES. 


References  are  to  Sections. 


C'ox  V.  Wayt 
V.  Wheeler 

V.  Wightman 

V.  Wood 
Coxe  V.  Halsted 
Coy  V.  Downie 
Coyle  V.  Davis 

V.  Wilkins 


495 

901  a,  1751,1860,  1871, 

1938 

619 

116 

1874 

1503 

335,  727,  982 

1144,  1145,  1192,  1210, 

1211,  1211a,  1215 

Craddoek  v.  Am.  Mortg.  Co.  1876 

Craft  V.  Bullard  1052 

V.  Merrill  715 

V.  Phillips  814 

Ci-afts  V.  Aspinwall  1621 

V.  Crafts  71,  351,  357,  1063 

V.  Dougherty  1861 

Craig  V.  Parkis  1432 

V.  Tappin  368,  374,  376 

Craigin  v.  Lovell  1496 

Crain  v.  McGoon  886,  892,  894 

t'.  Paine  1204 

Cramer  r.  Benton  598 

V.  Lepper  651,  745,  1494 

r.  Watson  1069,1322 

Crane  v.  Aultman-Taylor  Co.         848,  1134 

V.  Bonnell  308,  324 

V.  Brigham  429 

r.  Buchanan  271,  224,  324 

V.  Crane  500 

V.  Decamp  308 

V.  Deming  70,  344,  367,  368,  370 

V.  Evans  964 

V.  Grueuewald  964  a 

t'.  Hanks  1569 

V.  March         813,  818,  819,  842,  1229 

V.  Price  641 

V.  Stiger  1637 

y.  Turner         136,476,481,527,528, 

541,  679,  842 

V.  Ward  76 

Cranston  v.  Crane  1771  a,  1782,  1798, 

1861,  1890,  1891,  1894, 1913 

Crassen  v.  Swoveland       244,  253,  266,  544, 

600 

Craven  v.  Bradley  1414 

Craver  ?;.  Wilson  612  a,  613 

(Crawford  v.  Bonner  65 

V.Edwards     742  a,  744,  752,  754, 

755,  1408 

V.  Hazelrigg  942,  1204,  1694 

r.  Jarrett  318 

V.  Kirksey  627 

V.  Osmun  1111 

V.  Spencer  460 

V.  Taylor  295,  1144,  1146, 

1152, 1192 

V.  Tuller  1668 

(^raythorne  v.  Swinburne  882 

Creath  V.  Creath  1694 

(Jree  v.  Lord  1094 

Creesy  v.  Willis  758,  761  c 

Creighton  ?;  Ilershfield  1720 

V.  Paine  1663 

V.  Planters'  &  M.  Bank  1663 


Crenshaw  v.  Seigfried 
V.  Thackston 


1615,  1775,  1871 

741,  1405,  1294, 

1625 

Cressinger  v.  Dessenburg  616 

Cresson  v.  Stout  444 

Cressey  v.  Parks  1838 

Crews  V.  Pendleton  697,  1658 

f.  Tavlor  .504,519 

V.  Threadgill  266,  275,  279,  286, 

328,  329,  1095 

Crippen  v.  Chappel       874,  874  a,  874  c,  877 

V.  Morrison  669 

Cripps  V.  Jee  284 

Crisp,  ex  parte  1068 

Crittenden  v.  Johnson  679 

V.  Rogers  1244,  1269 

Crittendon  u.  Brainard  U45,  1192 

Crocker  v.  Lowenthal  84,  1439,  1687, 

1780 

V.  Robertson  1735 

V.  Thompson  913 

U.Whitney  134 

Croft  V.  Bunster  84,  788,  817,  834,  842, 

1485,  1486,  1487 

y.  Powell  1765 

Crogan  v.  Minor  1440 

Croghan  v.  Spence  1440 

Cromwell  v.  Bank  of  Pittsburg  1484 

V.  Brooklyn  F.  Ins.  Co.  400 

V.  County  of  Sac       74,841,  1141 

V.  MacLean  1473 

Cronin  r.  Hazeltine  1251,1285 

Cronise  v.  Clark  105 

Crook  V.Glenn  1195 

Crooke  v.  O'Higgins  1403 

Crooker  v.  Frazier  1229 

V.  Holmes  1204 

V.  Jewell  796,  915 

Crooks  V.  Kennett  113 

Cropper  v.  Mellersh  1397 

Crosby  v.  Allyn  706 

V.  Brown  son  813 

V.  Chase  856 

V.  Dowd  1462 

V.  Elkader  Lodge  1051  c 

V.  Farmers'  Bank  1621 

V.  Harlow  "75 

V.  Huston  1769 

V.  Kiest  1600,  1612 

V.  Leavitt  317,  889 

V.  Roub  814,  834 

V.  Tanner  1492  b 

V.  Taylor  856 

V.  Vleet  515 

V.  Wadsworth  697 

Cross  V.Allen  113,114,1198 

V.  Burns  1215 

V.  Fombey  463 

V.  Gannett  953 

V.  Hepner  266 

V.  Knox  1637 

V.  Marston  433 

V.  Robinson  22,  68,  664,  682,  889 

V.  Stahlman  984 

V,  State  Bank  90 

823 


TABLE   OF  CASES. 


References  are  to  Sections. 


Crossen  v.  Swordland 
Crossfield,  ex  parte 
Crossmore  v.  Page 
Crouch  V.  Meyer 
Crouse  v.  Holman 
Crow  V.  Conant 

V.  Tinsley 

V.  Vance 
Crowder  v.  Heed 
Crowe  V.  Lewin 
Crowell  V.  Currier 
V.  Hospital 


597 

181 

1182 

979 

1459, 1699 

919 

665 

813,  817,  820,  1207,  1425 

618 

754 

755,  761  a,  763 

744,  751,  755,  761  a, 

763,768 

1709 

627 

297  a 


Crowley  v.  Harader 

Crowninshield  v.  Kittridge 

Crozier  v.  Ragan 

Crugan  v.  Minor  1440 

Cruger  v.  Cruger  109 

r.  Daniel  1413,1593 

Cruikshank  v.  Duffin  1766 

Crumbaugh  v.  Smock  176 

Cruml)ly  v.  Bardon  990 

Crumlish  v.  Eailroad'Co.  548 

Crumpton  v.  Baldwin  1672 

Crutcher  v.  Hord  1800 

V.  Muir  297 

Crutchfield  v.  Coke  1337,  1711 

V.  Haynes  1880 

Cubbedge  v.  Napier  657 

Cubberly  v.  Wine  1577 

IK  Yager  752,  768 

Cucullu  V.  Hernandez  456 

Cuilerier  v.  Brunelle  1743 

Culbertson  v.  Lennon  1809 

V.  Young  1911 

Cullen  V.  Carey  300 

Cullum  V.  Batre  1416 

V.  Branch  Bank  881,  924,  926 

V.  Erwin  817,  822,  1701 

Cullwicky.  Swindell  441 

Culph  V.  Phillips  1465 

Culver  V.  Badger  752 

y.  Bigelow  641,650 

V.  Harper  1693 

r.  McKeown  1342,1652 

V.  Pullman  643 

V.  Rogers  1324 

V.  Sisson  677,  1225 

Cumberland  v.  Codrington  736,  751 

Cumberland  Coal  Co.  v.  Parish  842 

Cumming  v.  Cumming  1621 

Cummingsy.  Black  65 

V.  Cummings  706 

V.  Howard  1179  6 

V.  Martin  1484 

r.  Norris  1811 

V.  Oglesby  229,  235 

V.  Sharpe  112 

Cummins  v.  Cassily  90 

V.  Fletcher  1083 

V.  Wire  744,  1493 

Cundiff  ?;.  Brokaw  1182,1415 

Cuney  y.  Dupree  316 

Cunningham  v.  Brown  544,  586 

V.  Cassidy  1857 

824 


Cunningham  i'.  Hawkins 
V.  Hedrick 
v,  Pattee 
Cupples  V.  Galiigan 
Currie  v.  Bittenbinder 

V.  Cowles 
Currier  v.  Gale 
Curry  v.  Hill 
Curtis  V.  Browuell 

V.  Buckley 

V.  Drought 

V.  Engel 

V.  Flinn 

V.  Goodenow 


288,1146 

235 

589,  593 

893,  894 

1603 

1496 

703,  889,892 

1813,  1857,  1859 

103 

174 

964 

109 

70,  343 

1471 


V.  Gooding      1404,  1406,  1420,  1464, 

1589 

V.Hitchcock  1351,1411 

V.  Leavitt  62,  124 

V.  Lyman  515,  518 

V.  Mimdy  544,  546,  547  * 

V.  Perry  917 

V.  Renueker  1198 

V.  Root  137,  468,  470,  471,  472 

V.  Tyler  752,  755,  760,  881,  883, 

1432,  1433,  1711,  1713 

Curtiss  V.  Bush  1502 

V.  Hazen  1326 

r.  Sheldon  271,1123 

V.  Tripp  986 

Curyea  v.  Berry  526,  1674 

Cusliiug  V.  Ayer  1240 

V.  Hurd  549,  665 

I'.  Thompson  421 

Cushman  v.  Luther  350 

V.  Stone  1789,  1838 

Cuthbert  V.  Haley  646 

Cutler  V.  Dickinson  244 

V.  Goold  Co.  900 

V.  Haven  816,  962 

V.  Steele  379 

V.  Tuttle  106 

Cutter  V.  Davenport  797 

I'.  Jones  1395 

Cutts  V.  York  Manuf.  Co.      139,  1170, 

1247,  1250,  1265,  1266, 1267 


D. 


Dabney  v.  Green 
Dadmun  v.  Lamson 
Daggett  V.  Mendon 
V.  Rankin 
Daggs  V.  Ewell 
Dailey  v.  Abbott 
V.  Kastell 
V.  Kingon 
Dale  V.  BuhIi 
V.  M'Evers 

Dallas  V.  Floyd 
Dalmer  v.  Dashwood 

Dalton  V.  Hayter 
V.  Smith 


358, 


318 

665,  703,  789 

1107,  1561 

163,  168, 1689 

595,  1207 

1115,  1118 

574 

1580 

1334 

714,  1080,  1134, 

1683 

1154 

516,  1519,  1523, 

1524 

1059 

870  a,  142f, 


TABLE   OF  CASES. 


References  are  to  Sections. 


Daly  V.  Burchell  1404,  1407 

V.  :\Iaitlan(l  359,  635,  1606 

Damariu  v.  Huron  Iron  Co.  629 

Dameron  v.  Eskridge  1785,  1787,  1789 

Damni  v.  Danira  1089 

Damon  v.  Deeves  1921 

Dana  r.  Binney  924 

V.  Coombs  104 

V.  P'anington  1822,  1852,  1874 

V.  Newball  557 

Danbury  v.  Robinson  559,  827,  1604, 

1605 

Danforth  v.  Charles  1606 

V.  Coleman  1228,  1719 

V.  Roberts  1054,  1265 

Dan  Hartog  v.  Tibbits  1478 

Daniel  v.  Adams  1863 

y.  Coker  1114,1116,1123  a, 

11236 

V.  Hester  1473 

V.  Hodges  584 

y.  Leitch  1647 

V.  Skipwith  1414 

V.  Sorrells  474 

Daniels  v.  Alvord  289,  1060 

V.  Davison  586,  587,  589 

V.  Densmore  990 

V.  Ei^enlord  393 

V.  Lowery  277,  279 

V.  Moses  1434 

V.  Mowry  1158,  1245 

Danner  Land  Co.  v.  Ins.  Co.                     328 

Danzeisen's  Appeal  250,  332 

Darcy  y.  Blake  1527 

Dargan  v.  McSween  736,  749 

Dargin  v.  Beeker  490,  579 

Darling  v.  Chapman  891,  1307 

V.Harmon  342  6,1137 

V.  Osborne  1502 

V.  Wooster  1174 

Darlington  v.  EfFey  1414 

Darrosv  i;.  ScuUin  881,1719 

V.  St.  George  1794 

Darst  V.  Bates           474,  608,  644,  881,  929, 

936 

V.  Gale  374,  497,  838,  944 

V.  Murphy  293,  324,  335 

Dart  t).  McAdaiii  378,1498 

Darvin  I'.  Hatfield  1107 

Dary  v.  Kane  1070 

Dashwood  y.  Bithazey  1572 

Datesman's  Appeal  1355 

Daub  V.  Englebach  757 

Daubenspeck  v.  Piatt  255,  .324,  328,  597, 

600 

Dauchv  i:  Bonnet  1069,  1087 

DaughdiiU  v.  Swcenev  1095,  1806 

Daugheity  v.  Deardorf  1414,  1420 

Daun  V.  Brewery  Co.  365 

Davenport  i^.  Bartlett  1120 

V.  Ledger  413 

V.  N.  E.  Mut.  F.  Ins.  Co.        399 

r.  Shan  IS  431,436 

V.  Sovil  98 

V.  Turpin  1412,  1425 


Davey  v.  Durant        1801, 

1821,  1863,  1871. 

1875,  1883 

Davidson  v.  Allen 

1701 

V.  Cooper 

90 

V.  King 

615 

V.  Lanier 

117 

Davies  r.  Austen 

842,  844 

V.  N.  Y.  Concert  Co 

1383 

V.  Williams 

1388 

Davis's  Appeal 

749 

Davis  V.  Alvord 

487,  505,  1590 

r.  Anderson 

26 

V.  Barr 

842 

V.  Barrett 

857 

V.  Battine 

939 

V.  Bean              11.34, 

1137,  1296,  1501 

V.  Bechstein 

612,  842 

V.  Bilsland 

487,  505 

V.  Brewster 

263,  324 

V.  Calloway 

763 

V.  Chapman 

1653 

V.  Citizens'  Bank 

1670 

V.  Clark 

1506 

V.  Clay 

250 

V.  Conn.  Mut.  Life  Ins.  Co.         1411, 

1654 

V.  Converse 

1410,  1434 

V.  Cook 

1479 

V.  Cox 

1462,  1464 

V.  Davis 

136 

V.  Demming            2 

65,  266,  319,  328. 

329 

V.  Dendy 

1132 

V.  Dowling 

1572 

V.  Dresback 

1053 

V.  Duffie 

1075,  1100,  1111 

V.  Eastham 

297 

V.  Fargo 

911 

V.  Flagg 

1485 

V.  Gaines 

874 

V.  German  Am.  Ins 

Co.                   413 

V.  Gray 

1535 

V.  Greve 

834 

V.  Hamilton 

220,  1229 

V.  Hardy 

1404 

V.  Hemenway 

266 

v.  Hemingway 

1383 

V.  He.ss 

1849,  1865,  1869 

V.  Holmes 

1106,  1345,  1549 

V.  Hopkins 

268,  288  a,  293 

V.  Jenkins 

83  <( 

V.  Jewett 

532 

V.  Lane 

1793 

V.  Langsdale 

1077,  13.34,  1699 

•    V.  Lassiter 

1114,  Ills 

V.  Lutkiewiez 

461,  474 

i'.  Marlborough 

1523,  1524,  1537 

V.  Mavnard 

936 

V.  Newcomb 

1531  a 

V.  Nolan 

554 

V.  Ownsby 

464, 467 

V.  Pierce 

848 

V.  Quiiicy  Mut.  Ins 

Co.                    412 

V.  Rider 

728 

•            V.  Rodgers 

1 257 

825 

TABLE   OF    CASES. 


References  are  to  Sections. 


Davis  V.  Rogers 

V.  Roosevelt 
V.  Rupe 
V.  Spencer 
V.  Statts 
V.  Stonestreet 
V.  Strathmore 
?'.  Teays 
V.  Thomas 
V.  Thompson 
V.  Van  Wyck 


732 

874 

1051 

917 

1709  6 

258,  275,  294,  329 

571 

9 

258,  264,  275,  1043 

1296,  1313 

332, 341 


V.  Wetherell     1063,  1064,  1065,  1067 
V.  Winn  878,  1070,  1073,  1137 

Davisou  t».  De  Freest  1502 

Dawes  v.  Cammus  1621,  1628 

Dawkins  v.  Patterson  1876 

Daws  V.  Craig  605 

Dawson  v.  Danbury  Bank  597,  599,  1439, 

1441 

V.  Drake        1114,  1121,  1123,  1670 

V.  Egger  1745 

V.  Hay  den  662,  1921 

V.  Hoyle  1145 

r.  Thorpe  871 

Day,  in  re  1535 

Day  17.  Baldwin  1192 

V.  Bergen  1351 

r.  Clark  540,  557 

r.  Cole  1070 

V.  Ciishnian  1333 

c.  Goodbar  627 

V.  Gudgeon  1604 

V.  Mooney  848,  871 

V.  Patterson  1621 

V.  Perkins  439,  441,  446,  1466 

V.  Seely  103 

V.  Strong  981 

V.  Town  of  New  Lots  1683 

Davton  v.  Dayton         959,  1070,  1388,  1559 

V.  Dusenbury  1504,  1698 

I'.  Melick  1506 

V.  Moore  642 

V.  Rice  680 

Deal  V.  Palmer  539 

Dean  v.  Anderson  555 

V.  Apjjlegarth  1 1 79  l>,  1 1 82  a 

V.  Coddington  1467 

V.  De  Lezardi  531 

V.  Long  574 

V.  Nelson  1800 

r.  Phillips  1694 

v.  Ridgeway  1176 

V.  Robertson  503 

V.  Toppin  905 

V.  Walker        741,  744,  748,  758,  760, 

762 

Dcane  v.  Hutchinson  456,  457,  479 

Dearborn  v.  Dearborn  389,  1289 

V.  Taylor  808 

Deare  v.  Carr  953,  1229 

Dearmau  v.  Trimniier  834,  836.  1204 

Dearnaley  v.  Chase  1853,  1902 

Deas  V.  Thome  1233 

Deason  r.  Taylor  547,  574,  576 

Dcavitt  1-.  Juderine  1092,  1621' 

826 


De  Bouchout  v.  Goldsmid 
De  Bruhl  v.  Maas 
De  Butts  V.  Bacon 
De  Camp  v.  Crane 
De  Cazara  v.  Orena 


129 

83  a,  269,  279 

1493 

250 

1204 


Decker  v.  Boice 
V.  Clarke 
V.  Leonard 
V.  Patton 
V.  Wilson 
De  Cottes  v.  Jeffers 
Dederick  v.  Barber 


482,  535,  608,  1751 

478 

244,  808 

1106,  1107 

627,  1121 

930,  1434 

1117,  1431  a 


Dedrick  v.  Den  Bleyker  742 

Deering  v.  Boyle  112 

V.  Wiuchelsea  874  a 

Deeter  v.  Crossley  990 

Deetgen  c.  Richter  586,  589 

De  Forest  v.  Farley  1351,  1610 

V.  Hough  920 

De  France  v.  De  France  312,  327,  330 

De  Grant  v.  Graham  1567 

Dc  Greiff  r.  Wilson  1370 

De  Groot  ?;.  McCotter  1179 

De  Haven  v.  Dandell  1654 

V.   Musselman  1624 

V.  Williams  959 

Deininger  v.  McConnel  534 

Deisner  v.  Simpson  609 

Deitrich  r.  Lang  1462 

De  Jarnette  v.  De  Giverville  1792,  1800 

Dela  V.  Stan  wood  1124,  1240 

Delabere  v.  Norwood  1439 

Debibigarre  v.  Bush  1351 

Delahav  v.  Clement  27 

'  V.  McConnel  1661 

Delaire  v.  Keenan  165 

Delaucv  t'.  Stearns  460,482,611 

Deland"  y.  Mershon  1226,1434 

Delane  v.  Moore  458,  474 

Delano  v.  Bennett  808 

V.  Smith       1175,  1192,  1211,  1214(i 

V.  Wilde  665,  1587 

Delaplaine  v.  Hitchcock  1229 

V.  Lewis  1397,  1402,  1404, 

1407 

De  Lashmutt  v.  Sellwood  1436 

De  Laureal  v.  Kemper  817,  961 

Delavergne  v.  Norris  1504 

Delaware  &  H.  Canal  Co.  v.  Bonnell 

7^6,  870 
Delaware  Bank  v.  Jnrvis  1426 

Delaware,  L.  &  W.  R.  R.  Co.  v.  Oxford 

Iron  Co.  444,  447 

Delaware,  L.  &  W.  R.  R.  Co.  v.  Scran- 
ton  1350 
De  Leon  v.  Higuera              60,  65,  166,  1406 
Delespine  v.  Campbell      1215,  1427,  1701  a 
De  Leuw  I'.  Neely  1597 
De  Lisle  v.  Herbs                               848,  868 
Demarest  v.  Berry                           1121,  1458 
V.  Van  Denberg                      642  6 
i;.  Wvnkoop       113,114,557,559, 
1144,  1151,  1158,  1195.  1751, 
1785,  1897 
De  Martin  v.  Phclau  7 1 1 


TABLE   OF   CASES. 


References  are  to  Sections. 


Deming  v.  Coinings 


1077,  1^43,  1258, 

1266,  1269 

V.  State  019 

Demond  v.  Crovy  1 7 1 .5 

V.  State  619 

De  Mott  V.  Benson  346 

Dernott  v.  Taper  Ware  M'f'g  Co.  883 

Dempscy  v.  Bush  1687 

Dempster  v.  West  1922 

Den  V.  Baldwin  683 

V.  Dimon  973 

V.  Eiehman  467 

V.  Roberts  458 

V.  Stockton  702 

V.  Vanness  848,  1305 

V.  Wade  456 

V.  Watkins  458 

V.Wright  715,716 

Denby  v.  Mell<,^rew  18,  664,  1377 

Dendel  v.  Sutton  1423 

Dendy  v.  Waite  1891 

Deugenhart  v.  Cracraft  495 

Dennerlein  v.  Dennerleiu  1646 

Dennett  v.  Codman  1106,  1108 

De  Nicholls  v.  Saunders  773 

Denning  v.  Smith  1672 

Dennis  v.  Burritt  523 

V.  Hemingway  1223,  1342 

v.  Tomlinsou  711,1096 

Dennison  v.  Allen  1355 

Denniston  v.  Potts  1420 

Denny  v.  Ashley  1716 

V.  Dana  110 

V.  Graeter  1334,  1577 

Denston  v.  Morris  1502 

Denton  v.  Cole  817,  874 

V.Nanny  1067,1420,1694 

V.Nat.  Bank  1102,  1551,  1629 

V.  White  597 

Denver,  B.  &  M.  Co.  v.  McAllister      1726, 

1773 
Denzler  v.  O'Keefe  848,  857 

Depau  V.  Humphreys  659 

Depew  V.  Dewey  1669,  1674 

De  Peyster  v.  Ferrers  1387 

V.  Hasbrouck  97 

Derby  Bank  v.  Landon  950,  1567 

Deroin  v.  Jennings  305 

De  Puyter  v.  St.  Peter's  Church    589,  1400 
De  Saussure  v.  BoUraann  1436 

Dcsloge  V.  Hanger  279 

Des  Moines  Nat.  Bank  v.  Harding  90 

Desot  V.  Ross  874  b 

Despard  v.  Walbridge  309 

De  St.  Ronies  v.  Blanc  1008 

Detillin  y.  Gale  1602 

Detroit  v.  Board  of  Assessors  636 

Detroit  Ins.  Co.  v.  Aspinall  877 

V.  Renze  1342,1638 

Detroit  Sav.  Bank  v.  Trucsdail     875,  1086 
I  )etweiler  v.  Breckenkamp  1 1 82 

V.  Holderbaum  1409,  1414 

Dcuster  v.  McCamus        562,  722,  723,  982, 

1631 
Devajncs  V.  Robinson  129 


De  Vendal  v.  Malone 
De  Vendell  v.  Doe 
Devens  v.  Bower 
Devereaux  v.  Fairbanks 
Devereux  v.  Taft 
Devin  v.  Eagleson 
Devlin  v.  Collier 


458 

466 

1273,  1287,  1294 

950 

848,  871 

1080 

43,  808 

1807  a 

644 

261,  263,  268 

1283 

1599 

530,  723 

771 

1670 

1288 

1427 

488 

842 


Devore  v.  Woodruff 
Dewey  v.  Brown 

V.  Brownell 

V.  IngersoU 

V.  Latson 

V.  Linscott 

V.  Van  Deuseu 

Dewing  v.  Scribner 

Dewitt  V.  Moulton 

De  Witt  V.  Van  Sickle 

De  Wolf  V.  Capital  City  Ins.  Co.  420 

f.  Johnson,  660,745,1494 

V.  Murphy  1933,  1934,  1935 

V.  Sprague  Manuf.  Co.         62,  65, 

630  a,  1445,  1769 

V.  Strader  293,  337 

Dexter  v.  Arnold       1099,  1100,  1105,  1116, 

1124,  1126,  1144,  1158,  1171 

V.  Harris  872 

V.  Long  1473 

V.  Shepard     1838, 1873, 1874,  1879, 

1886,  1892 

Dey  V.  Dunham  511,548 

De  Yampert  v.  Brown  966 

Deyermand  v.  Chamberlin  738 

Dial  V.  Gary  960,  1389 

V.  Reynolds  1439,  1440 

Diasv.  Merle  1097,1100 

Dibrell  V.  Carlisle  118 

Dick  V.  Balch  525 

V.  Franklin  F.  Ins.  Co.  397,  409, 

420 

V.  Mawry  817 

V.  Moon  881 

V.  Truly  726 

Dickason  v.  Dawson  715 

V.  Eby  226 

V.  Williams  736,  752,  870 

Dicker  v.  Angerstein  1900 

Dickerman  v.  Burgess  1333 

V.  Lust  1064,  1427,  1441 

Dickerson  v.  Bowers  466,  506 

V.  Hayes  1743,  1813 

V.  Powell  1331 

V.  Small  1840 

V.  Tillinghast  460 

V.  Uhl  1439 

Dickey  v.  Henairc  465 

V.  Lyon  589 

V.  Permanent  Land  Co.  907 

V.  Thompson  1620,  1626,  1627 

Dickinson  v.  Dickinson  391,  394,  395 

V.  Lamoille  jPo.  N.  Bank       1436 

V.  McLane  83  a 

f.  Shee  _      1088 

Dickson  v.  Chorn  731,  981 

827 


TABLE   OF   CASES. 


References  are  to  Sections. 


Diedricks  v.  Stronach 
Diefeudorf  v.  House 
Dietrich  v.  Lang 
Dietrick  v.  Bayhi 
Digby  V.  Jones 
Diggle  V.  Boulden 
Dignian  v.  McCollum 
Dikeman  v.  Puckhafer 
Dilger  v.  Palmer 
Dill  V.  Bowen 

V.  Sattei'field 

V.  Vincent 


1321 

1674 

1462 

1606 

323,  339,  556,  189S 

1562 

529 

518,  553 

1632 

105 

1789 

1665 


Dillaye  v.  Commercial  Bank  542 

Dillman  v.  Bank  1693 

Dillon  V.  Brown  800 

V.  Byrne  927  a 

Dills  V.  Jasper  1637,  1639,  1648 

Dime  Sav.  Bank  v.  Crook  1483 

Dimick  v.  Grand  Isl.  Bank.  Co.    1347, 1599 

Dimon  v.  Bridges  1481 

V.  Dimon  813 

V.  Dunn  524,  1481 

Dingley  v.  Bank  221,  222 

Dingman  v.  McCollum  574 

V.  Randall  927 

Dings  V.  Purshall  574,  874,  894,  1064, 

1813  a 

Dinsmore  v.  Racine  &  M.  R.  R.  Co.        157 

V.  Savage  1095,  1112,  1504 

Dircks  v.  Logsdon  848,  873 

Dishmore  v.  Jones  547 

Disque  v.  Wright  488,  515 

Distilled  Spirits  562 

Dix  V.  Van  Wyck  644 

Dixfield  V.  Newton  808 

Dixon  V.  Caldwell  542 

V.  Clayville  1701  a 

V.  Cuyler  1331,  1414 

V.  Ewart  1793 

V.  Hill  .    555,  556 

V.  Hunter  479,  814 

V.  Parker  284 

Doan  V.  Holly  1710 

Dobbin  v.  He\vett  657 

Dobbins  v.  Parker  351 

Dobbs  r.  Niebuhr  1616 

Dobson  V.  Land  409,  414,  420,  1135 

V.  Racey  1881 

Doctor  V.  Smith  1439 

Dodd  V.  Bartholomew  162 

V.  Parker  456,  539 

Dodds  V.  Snvder  1621,  1622,  1632 

Dodge  V.  Allis  1600,  1668 

V.  Brewer  900,  1053,  1088,  1916 

V.  Crandall  1513 

V.  Ereedman's  Sav.  &  T.  Co.      1329, 

1709 

V.  Fuller  1086,  1441 

V.  Kennedy  1055  a 

V.  Kinzv  113 

V.  Potter      505,  508,  518,  563,  740  a 

V.  Silverthorn  136,  176,  736 

V.  Tulleys  1606,  1923  a 

Dodson  V.  Lomax  98 

Doe  V.  Robinson  1771  a 

828 


Doe  V.  Vallejo 

V.  Williams 
Doherty  v.  Stimmel 
Dohm  V.  Haskin 
Dolan  V.  Kehr 
Dolbear  i'.  Norduft 
Dole  V.  Thurlow 
Doll  V.  Hollenbeck 
Dollahite  v.  Orne 


1698,  1464,  1575 

703 

559 

1742, 1906 

943 

1787 

467 

1493 

229 


Dollar  Sav.  Bank  v.  Burns  736,  865 

DoUins  I'.  Lindsey  1526 

Dolman  v.  Cook        626,  660,  663,  736,  745, 

1493,  1498 
Domville  v.  Berrington  1636 

Donahue  v.  Chase  899,  1123 

V.  Hubbard  1929 

V.  Mills  539 

Donald  v.  Beals  560 

Donaldson  v.  Wilson  964 

Donley  v.  Havs  817,  821,  822,  1621, 

1701  a 

Donlin  v.  Bradley  972 

Donnan  v.  Intelligencer  Pub.  Co.  65 

Donnelly  v.  Rusch  1425 

V.  Simonton  37,  983 

Donnels  v.  Edwards  135,  704 

Donnington  v.  Meeker  634,  647,  832 

Donohue  v.  Chase  1853 

Doody  V.  Pierce  886,  904,  1100,  1104 

Dooley  v.  Potter  952,  1070,  1074,  1 134. 

1290,  1306,  1309 

r.'Va.  F.  Lis.  Co.  1233 

V.  Wolcott  544,  586 

Doolin  r.  Ward  1677 

Doolittle  V.  Cook  460,  523,  530,  594 

V.  Lewis        960,  1767,  1775,  1785, 

1786,  1897 

V.  Naylor  760 

Dorkray  v.  Noble  787,808,  896,  1088 

Dorr  v.  Dudderar  144,  433,  684,  688 

V.  Leach  1305 

V.  Peters  748,  751 

Dorrell  y.  Johnson  1273 

Dorsch'y.  Rosen thall  1469 

Dorsey  v.  Campbell  1663 

V.  Dorsey  1340,  1800 

V.  Gassaway  907 

V.  Hall  136 

Dorsheimer  v.  Rorback  1414 

Doss  V.  Ditmars.  822,  1699,  1700,  1701 

Doswell  i\  Adler  627 

V.  Buchanan  476,  528 

Doten  y.  Hair  1251,1276,1285 

Doton  V.  Russell  22,  664,  889 

Dotterer  v.  Freeman  634 

Doty  V.  Whittleslev  1569 

V.  Wilder       '  1903 

Doub  V.  Barnes  644 

Doubleday  v.  Kre.ss  791 

Dougald  V.  Caprou  1066 

Dougherty  v.  Kercheval  674 

V.  McColgan     72,  257,  279,  299, 

1127 

Doughty  V.  Owen  429,  446 

V.  Van  Horn  400 


TABLE    OF   CASES. 


References  are  to  Sections. 


Douglas  v.  Gould 

136 

Draude  v.  Rohrer  Manuf.  Co. 

491,  523 

V.  Patrick 

1088 

Drayton  v.  Marshall 

1194,  1414 

V.  Shumway 

145 

Drcsbach  v.  Stein 

1506 

V.  Soutter 

1414 

Dresser  v.  Construction  Co. 

788 

Douglass's  Appeal 

1935 

Drew  V.  Carroll 

65 

Douglass  V.  Bishop              1072,  1395,  1405,  | 

V.  Harmau 

1100 

1409,  1680 

V.  Kirkhana 

1347 

V.  Cline 

31,452,  1516 

V.  Lockett 

881,  883 

v.  Culverwell 

275 

V.  Power 

1143 

V.  Durin 

700,  787,  809 

V.  Rust 

848 

V.  McCrackin 

583 

Drexel  v.  Miller 

1355 

V.  Peele 

525,  534,  535 

Drexler  v.   Tyrrell 

619 

V.  Reynolds 

367 

Drey  v.  Doyle 

547 

V.  Satterlee 

9.59 

Dreyf  uss  v.  Giles 

1222 

V.  Thomas 

1502 

Driggs  V.  Simson 

974 

V.  Wells 

755,  763,  764 

Driuan  v.  Nichols 

1826 

V.  Woodworth 

1052 

Driver  v.  Hudspeth 

217,  233 

Douthit  V.  Hipp 

1395 

Drummond  v.  St.  Albans 

1120 

Dove  V.  Dove 

1663 

Drummoud  v.  Richards 

1225 

Dover  v.  Kennerly 

1873,  1903,  1912 

V.  Sant 

1155 

Dow  V.  Chamberlin 

244,  1321 

Drury  v.  Clark           1404,  1410 

1412,  1473 

V.  Moor 

1270 

V.  Foster 

83,  90,  500 

V.  Railroad  Co. 

670 

V.  Henderson 

1193 

V.  Updike 

1606 

V.  Holden 

740 

Dowden  v.  Wilson 

1469 

V.  Morse 

812,  1300 

Dowe  V.  Scliutt 

641 

V.  Treraont  Imp.  Co. 

748,  750, 

Dowling  V.  Hudson 

1526 

766, 769 

Downard  v.  Groff 

697,  780,  1658 

V.  Wolfe 

651 

Downer  v.  Button 

817 

Dryden  y.  Stephens              1830 

,  1895,  1915 

V.  Clement 

1278 

Drysdale  v.  Mace 

578 

I'.  Fox 

848,  878 

Dubois's  Appeal 

800 

V.  Miller 

874  c,  897,  967 

Dubois  V.  Schaffer 

970 

V.  Wilson 

869 

Dubose  V.  Young 

517 

Downes  v.  Grazebrook 

1876,  1878,  1883 

Duck  V.  Wilson 

1218 

V.  Hopkins 

1876 

Ducker  v.  Belt 

1439 

Downey  v.  Tharp 

843 

Duclaud  V.  Rosseau 

32 

Downing  v.  Blair 

18 

Duclos  V.  Walton 

271 

V.  Le  Due 

1443,  1465 

Dudley  v.  Bergen 

970,  1498 

V.  Palmateer 

1222,  1337,  1563, 

V.  Cadwell 

22,  810,813 

1711 

V.  Collier 

134  a 

V.  Woodstock  Iron  Co.    330,  335 

V.  Congregation 

1709  a 

Downs  V.  Hopkins 

1114 

V.  Hurst                          429,  446,  447 

V.  Sooy 

1195 

Duesterberg  v.  Swartzel 

1334 

Dows  V.  Congdon 

1076 

Duff's  Appeal 

670  fif,  708 

Doyle  V.  Coburn 

1286 

Duffy  V.  Calvert 

1790 

V.  Howard 

1829 

V.  Ins.  Co. 

114 

V.  Lord 

142 

V.  McGuiness           848,  858,  868,  869 

V.  Mellen 

65,  672,  703 

Dufphey  v.  Frenaye 

494,  495 

V.  Peerless  Petroleum  Co.              528 

Dugan  V.  Lewis 

661 

V.  Stevens 

523,  586 

V.  Lyman 

964, 994  a 

V.  Teas 

.546,  552 

V.  Trisler 

628 

17.  Wade 

466,  557 

Dugdale  v.  Robertson 

1178 

i;  .White 

.345,  365 

Duggan  V.  Colorado  Mort.  Co. 

125 

Dozier  v.  Mitchell       034, 

1122,  1123,  1126, 

Dulic,  Succession  of 

1006 

1128,  1134, 1876 

Duke  V.  Jones 

513 

Drake  r.  Bray 

1629 

V.  Reed 

715 

V.  Crowell 

584 

V.  Strickland 

151 

V.  Paige 

136 

V.  Turner               218,  22 

7,  235,  1074, 

V.  Root 

21 

1449 

Drane  v.  Gunter 

1774 

Dulin  V.  Hunter 

843 

Draper  v.  Bryson 

464 

Duinell  V.  Terstegge 

1454 

V.  Charter  Oak  F 

Ins.  Co.           399 

1  Dunbar  i'.  Starkcy 

6«55 

V.  Jack.son 

135 

Duncan  v.  Cobb 

1193 

V.  Mann 

1215,  1227 

!                  V.  Dodd 

1640 

V.  Rice 

964 

'                 V.  Drury 

829 

848 

TABLE   OF   CASES. 


References  are  to  Sections. 


Duncan  v.  Finn 

V.  Gilbert 
V.  Helm 
V.  Hodges 
V.  Johnson 
V.  Louisville 
V.  Miller 
V.  Smith 
Duncomhe  v.  Hansley 
Duntias  v.  Bowler 


748 

615 

656,  657 

90 

555 

229,  822,  834,  839, 

379,  464,  489,  611 

848,  870 

1098,  1414 

823 


Dundee  Harbor  v.  Dougall  1203 

Dungan  v.  Am.  L.  Ins.  &  T.  Co.  458 

Dunham  v.  Cincinnati,  &c.  Ry.  Co. 

152,  154,452,  1859 

V.  Cudlipp  641 

V.  Day  548,  574,  580 

V.  Isett  160 

V.  Jackson  1107 

V.  Minard  915 

Dunklee  v.  Adams  395 

V.  Crane  487 

Dunkley  v.  Van  Buren  72,  950,  1709  a, 

1711 

Dunlapt;.  Hedges  1521,  1524 

V.  Shauklin  226 

V.  Wilson  1061,  1395 

y.  Wiseman  651,652,1141 

V.  Wright  1861 

Dunlop  V.  Avery  400 

Dunman  v.  Coleman  167 

Dunn  V.  Dunn  844  a 

r.  Fish  982,1857,1858 

V.  Herbs  .1675  a 

V.  Olney  1504 

V.  Raley  168 

V.  Rodgers  748,  1333 

V.  Seymour  842 

Dunuing  v.  Finson  720 

V.  Leaviit  746,  754 

V.  McDonald  1832,  1843 

r.  Ocean  Nat.  Bank       169.5,1931 

Dunphy  v.  Riddle  870 

Dunshee  v.  Parmelee  924 

Dun  Stan  v.  Patterson  863 

Dunton  v.  Sharpe  774,  1862,  1880 

Dun  well  v.  Bid  well  462,  463 

Duran  v.  Ayer  1141 

Durant  v.  Crowell        547,  1464,  1516,  1521 

Durden  u.  Whetstone  1864,  1876 

Durfee  v.  Knowles  943 

Durgin  v.  Busfield  824 

Durham  v.  Bischof  763,  764 

D.Craig  726,  833a,  1472 

Durkee  v.  Nat.  Bank  461 

V.  Stringham  136,  176 

Durley  v.  Davis  1051 

Durling  v.  Hamnias  705 

Durm  V.  Fish  982 

Durrett  y.  Whiting  1586 

Duryce  v.  Linsheimer  1505 

Dusenbury  v.  Hulburt  471,  501,  536 

Dutch  V.  i3ovd  66 

V.  Merritt  889 

V.  N.  E.  Mut.  F.  Ins.  Co.  422 

V.  Warschauer  20,  589,  591,  674 

830 


Dutcher  v.  Hobbv  874 

Dutro  V.  Kennedy  436,  4.53,  1654,  1657 

Dutton  V.  Aurora  636 

r.  Ives  485,834,842,848,956 

V.  McRevnolds  464,  465,  594 

Duty  V.  Graham"  1207,  1214 

Duval's  Appeal  129 

Duval  V.  Covenhoven  495 

V.  McLoskey         352,  664,  804,  1228, 

1322,  1396,  1420 

r.  P.  &M.  Bank  712 

Duvall  !\  Speed  1648 

Dwen  V.  Blake  172,  262,  266,  293,  335, 

337 

Dwenger  v.  Branigan  472 

Dwight  V.  Phillips     1667,  1751,  1893,  1905 

V.  Webster  76,  1471 

Dwinelt'.  Perley  787,817 

Dye  D.Mann  881,1188,1472 

Dyer  v.  Clark  123,  569,  1063,  1064 

r.  Homer  629 

V.  Shurtleff         1106,  1821,  1844,  1878 

V.  Toothaker  889 

Dyett  V.  Pendleton  1502 

Dyson  v.  Simmons  456,  458,  522 

Dzialvnski  r.  Bank  113 


E. 


Eacho  V.  Cosby  353 

Eagle  Beneficial  Society's  Appeal  901 

Eagle  Fire  Ins.  Co.  v.  Canimet  1401 

1-.  Lent  1439,  1440, 

1445,  1589 

V.  Pell    929,  1080,  1134 

Eagle  Mills  Co.  v.  Monteith  128 

Eames  v.  Hardin  335 

Earl  1-.  Clute  616 

V.  David  1223 

Early  v.  Burtis  439 

Earnest  v.  Hoskins  842 

East  V.  Pugh  557 

Eastburn  v.  Kirk  1603 

Easter  v.  Severin  65,  99 

East  India  Co.  v.  Atkvns  1039,  1042 

East  Tex.  F.  Ins.  Co.  v.  Clarke  426 

Eastmau  v.  Batchelder  388,  392 

V.  Foster     387,  436,  726,  822,  881. 

1204,  1701a 

V.  Thayer  713,  1095,  1349 

V.  Turman  1434 

Easton  v.  German  Am.  Bank  1880 

V.  Montgomery  712 

V.  Pickersgill  '  1597,  1649 

Eaton  1-.  Boissonnault  74,  1141 

V.  Copeland  991 

r.  Dewey  113  a 

r.  Eaton  1012 

V.  Green  244,  300,  325 

V.  Jaques       .  12,  785 

r.Nason  114 

1-.  Simonds  666,1067,1132 

V.  Tallmadge  680 

V.  Truesdail  1 1  74 


TABLE   OF   CASES. 


References  are  to  Sections. 


Eaton  V.  White 
V.  Wliiling 

Eaves  v.  Estcs 
Eht'i't  V.  Gcrding 
Ecfles  V.  Timmons 
Eccleston  v.  t  lipsham 
Eck  V.  Hatcher 

V.  Sweiinenson 
Eckel  V.  Eckel 
Eckersou  v.  Vollmer 
Eckert  v.  McBee 


138 

62,  244,  271,  664, 

701,  938,  1767 

431, 436 

878 

1646 

356 

547 

1134 

1512 

1420 

260,  265,  267 


Economy  B.  Asso.  v.  Ilungerbuckkr       910 

Eddy  V.  Hawkeye  Co.  422 

V.  Sniiih  1935 

V.  Traver  879,  881 

Edgar  v.  Edgar  1742 

Edgelly.  Hagens  626 

V.  Stanford  805,  1295,  1361 

Edgerton  v.  McRea  1099 

V.  Young  817,  820,  848,  870, 

1512, 1567 

Edgington  v.  Hefner  984 

Edinburgh  Mort.  Co.  v.  Latham            874  c 

Edier  v.  Hnsche  742 

Edmunds  i'.  Leavell  500 

V.  Mut.  Safety  F.  Ins.  Co,         426, 

492 

Edmondton  I'.  WeLsh  1636 

p:drington  v.  Harper  244,  258,  260 

Edsell  V.  Buchanan  1 1 66, 1 1 73 

Edson  r.  Munsell  1193 

Edwards  v.  Barwise  508,  523,  571,  572 

V.  Bodine  1500,  1502 

V.  Bowden  626 

V.  Davenport  874  a 

V.  Dwight  360 

i\  Farmers'  F.  Ins.  &  L.  Co.     074 

893 

V.  Hall  328 

V.  Haverstick  283 

V.  McKernan  460,  476 

r.  Martin  1177 

i;.  Sanders  1636 

v.  Taliafero  102 

V.  Thompson  586,  587,  1512 

V.  Thohtcnson  743 

V.Trumbull  187,513 

V.  Wall  318,335 

V.  Woodbury  669 

V.  Wray        '  702 

Edwards'  Estate,  re  1043 

Effinger  v.  Hall  548,  552,  586 

Kge  V.  Watts  906 

Egerlon  v.  Jones  310 

Eggeman  v.  Harrow  628,  967 

Eggleston  v.  Watson  489 

Ehle  V.  Brown  405,  467,  586.  590,  1412 

Ehleringer  V.  Moriarty  1652 

Klirgott  V.  Forgotston  043 

Eichelberger  v.  Gilt  220 

V.  Harrison  1340 

Eiland  r.  Radford  324 

Eiseman  r.  Gailaglier  305,  339,  .548,  552 

Eitel  r.  Bracken  031,  645 


Eilelgeorge  > .  Mut.  Bldg.  Asso.  1174, 

1177/; 

Ekings  V.  Murray  1663 

Elder  V.  Derby  679 

t'.  Jones  100 

V.  Rouse  678,  1225 

V.  Spinks  1473 

Eldredge  v.  Jenkins  285 

Eld  ridge  v.  Pierce  731 

V.  Post  557 

V.  Smith  161 

Eleventh  Ward  Sav.  Bank.  v.  Hav        1669, 

1670,  1682,  1689 

Elfe  (.-.  Cole  26 

Elias  V.  Vedugo  1579 

Eliot  V.  Hiinrod  124 

Eliot  Five  Cents  Savings  Bankw. 

Commercial  Union  Ass.  Co.                 406 

Elkins  I'.  Edwards  1204 

Ellenbosen  v.  Griffey     635,  639,  1323,  1883 

Ellerborsf,  Hi  ?e  1235,1926 

EUeit  V.  Butt  151 

Ellicott  I'.  Nichols  1198 

Elliot  V.  Patton  1099 

V.  Sleeper  924,  932 

Elliott  V.  Blair  924 

V.  Deason  351,  847 

V.  Gilchrist  969 

V.  Maxwell  275,  310 

y.  Pell  1589 

I'.  Sackett  73s 

I'.  Wood  .340,  646,  1751,  1827, 

1828,  1863,  1882,1883,  1898 

Ellis  ?-.  Am.  Mortg.  Co.  ii3 

V.  Baker  1484 

t'.  Craig  1351 

c.  Drake  1257,  1258,  1260 

V.  Griffiths  llOSu 

V.  Higgins  298 

V.  Horrman  548 

I'.  Hussey  45 

p.  Johnson  '              741, 983 

f.  Kenyon  114 

c.  Lam  me  1699,  170-J 

V.  Leek  1545,  1501,  15G:i 

V.  Lindley  907 

r.  Martin  1188 

V.  Mason  906,  909  // 

I'.  Messervie  678,  842 

V.  Roscoe  1701  a 

V.  Sisson  838,  1488 

V.  Southwell  1687 

t;.  State  Ins.  Co.  422 

V.  Young  591 

Ellison  V.  Daniels  42,  664,  808 

V.  Smyih  684 

Ellithorp  V.  Dewing  676 

Ells  i:  Sims  66 

Ellsworth  V.  Lockwood  792,  874,  882, 

1004, 1087,  1380, 1617, 

1683,  1858,  1900 

V.  Mitchell  9.30 

Elmendorf  i\  Lockwood  1421 

Elmer  r.  Loper  1130,  1132,1140 

('.  Welch  709 

831 


TABLE   OF   CASES. 


References  are  to  Sections. 


Elmore  t'.  Higcins 
Elphick  V.  Hotfman 
Elston  V.  Charaberlain 
Elwell  V.  Shaw 
Elv  V.  Bush 


1335 

1492 

267,  326 

130 

1198 


V.  Elv  420.  936,  1215,  1219 

V.  McGuive  702 

V.  McNight  842 

V.  Perriue  1622,  1646  o. 

V.  Scofield  479,  607,  957 

V.  Stannard  84,  879 

i;.  Tiupin  1123 

r.  Wilcox  488,  498,  518,  540,  550, 

558, 591 

Emanuel  v.  Hunt  817 

Emanuel  College  i'.  Evans  6 

Emeric  v.  Tarns  1462 

Emerson  v.  Atkinson  1065,  1064,  1070, 

1093,  1095 

V.  Atwater  301 

V.  European  Rv.  Co.  153 

V.  Gilman        ""  991 

V.  Sansome  1658 

Emery  v.  Gordon  961 

V.  Owings  346 

V.  Piscataqna  Ins.  Co.  405 

Emigrant  Sav.  Bank  v.  Clule        874  c,  876, 

^  877 

V.  Goldman  1439, 

1445,  1589,  1589  a 

Emiev  V.  Mount  1712 

Emmett  r.  Yandes  1718 

Emmons  v.  Gille  1500 

V.  Hinderer  684,  693 

V.  Murrav  586,  598 

V.  Van  Zee  1922,  1923  a 

Emory  v.  Keighan  1197,  1203,  1207, 

1208,  1897 
Encking  V.  Simmons  1793,1911 

Endel  v.  Walls  250 

England  v.  Codrington  284 

Engle  V.  Haines  1625 

V.  Hall  899,  900,  989 

r.  Underhill  1223,1351 

Engelman  Trans.  Co.  v.  Longwell        1122, 

1123 

English  V.  Aldrich  1473 

r.  Carney  822,1182,1701a 

V.  Ennis  612 

V.  Key  774 

i;.  Lane  286 

V.  McElroy  185 

V.  Ozburn  1331 

V.  Register  1377 

V.  lioche  65 

V.Russell  217 

V.  "Waples  540,  555 

Englund  v.  Lewis  1324 

Ennis  v.  Harmony  F.  Ins.  Co.  407,  408 

Ennor  v.  Thompson         293,  325,  326,  1046 

I'^nochs  I'.  Miller  1771  a 

Enos  r.  Cook  481,773 

V.  Sutherland  244,  251,  341,  1099 

Enright  y.  Hubbard  1583 

Ensign  v.  Colburn  693 

832 


Ensminger  v.  Ensminger  295,  335 

Enston  v.  Friday  355,  934 

Ensworth  v.  Griffiths  262 

V.  King  502 

V.  Lambert  1396 

Epley  V.  Wiiherow  551 

Equitable  L.  Asso.  Soc.  v.  Bostwick 

748,  751 
Equitable  L.  Assur.  Soc.  v.  Olyphant 

1606  b 
Equitable  L.  Ins.  Co.  v.  Gleason  1444, 

1632 

V.  Slyc  487 

V.  Stevens  1223, 

1351,  1709  a,  1721 

Equitable  Mort.  Co.  v.  Loury  596 

Equitable  Trust  Co.  v.  Christ  429 

V.  Fisher      1122,  1774, 

1906,  1911 

Ereanbrack  v.  Rich  1457 

Erdall  ;;.  Atvvood  627 

Erickson  v.  Rafferty         ■  27,  490,  1236 

Erliuger  v.  Boul  1621 

Erskine  r.  Townsend  16,  244,  300,  702,  886, 

892,  1244,  1262,  1310 

Erwin  v.  Acker  877 

V.  Blanks  1067 

V.  Curtis  309,  335 

V.  Ferguson  1382,  1414 

V.  Hill  118 

i:  Lancaster  742 

V.  Lewis  540 

V.  Lowry  113 

V.  Shuey  81,  538,  539 

Esch  V.  Home  Ins.  Co.  425 

Escher  v.  Simmons  1577,  1619 

Eslava  v.  Crampton      642,  1516,  1533,  1808 

V.  Le  Petre  647,  652,  1420 

Eslow  V.  Mitchell  893 

Espin  V.  Pemberton  565,  566,  571 

Essex  Sav.  Bank  v.  F.  Ins.  Co.  422,  425 

Essley  i-.  Sloan  744,  1095,  1098 

Estabrook  v.  Smith  735 

Esterly  v.  Purdy  346 

Estes  v.  Gunter  627 

Estevez  v.  Purdy  642 

Estudillo  V.  Meyerstein  618 

Estv  V.  Baker  142 

Etheridge  v.  Vernoy  1388,  1421 

V.  Wisner  335 

Etna  Life  Ins.  Co.  v.  Corn  870 

Etny re  1-.  Daniel  74,1141 

Etzler  i:  Evans  967 

Eubanks  I'.  Leveridge  1193,  1197 

European  Bank,  in  re  566 

Evans  v.  Atkins  1335 

V.  Beaver  662 

V.  Elliot  777 

i".  Ellis  842 

V.  English  1671 

V.  Enloe  220 

V.  Feeny  237 

1-.  Fields  1630  a 

V.  Halleck  877 

V.  Huffman  915 


TABLE   OF   CASES. 


References  are  to  Sections. 


Evans  r.  Jones 

1065,  1097 

v.  Judkins 

1088 

V.  Kimball 

848 

17.  McGlasson 

464 

V.  McLiicas                 1439,  1502,  1504 

V.  Merriken 

11 

V.  Meylert 

1355 

V.  Nealis 

557 

V.  Xorris 

390 

V.  Pence 

460,  610,  611 

V.  Pike 

1047 

■V.  Khea 

876 

V.  Roberts 

697 

r.  Templeton 

'      526 

V.  White 

84 

Evansville  Gas.  Co.  v.  State 

936, 1621 

Eveland  v.  Wheeler 

974 

Evenson  v.  Bates 

351,374 

Everest  v.  Ferris 

808 

Everit  v.  Strong 

800 

Everman  r.  Robb 

151 

Eversole  v.  MauU 

841 

Everson  ?■.  Eddy' 

629 

i\  Johnson 

1612,  1838 

V.  McMuUen 

666,  866,  877 

Everts  v.  Agnes 

555 

Evertson  v.  Booth 

817 

V.  Central  Bank 

874  c 

V.  Ogden 

981 

Ewart  V.  Irwin 

1179, 1355 

V.  Walling                244 

250,  273,  293 

Ewell  V.  Daggs 

1214  b 

Ewer  V.  Hobbs 

35,  705 

Ewing  V.  Arthur 

822, 1701 

V.  Slielton 

990 

Excelsior  F.  Ins.  Co.  v.  Royal  Ins.  Co. 

397,  419,  420 
Exchange  Bank  v.  Rice  761  a 

Exley  V.  Berryhill  634,  646 

Exton  V.  Scott  247 

Ex-Mission  Land  Co.  v.  Flash  1674 

Eylay  v.  Eylay  597 

Eyre  v.  Burmester  967 

Eystei-  v.  Gaff         21,  71,  llSl,  1231,  1232, 
1233,1411,  1434 
V.  Hatheway  626 

Ezzel  r.  Watson  1876,1922 


Tackier  v.  Worth 

Factors  &  Trader's  Ins.  Co.  v. 


Faesi  v.  Goetz 
Fair  v.  Brown 

I'.  Stevenot 
Fairhank  i-.  Cudworth 
Fairbanks  i'.  Isham 
Fairchild  v.  Lynch 
Fairfax  v.  Hopkins 

V.  Montagne 
Fairfield  v.  McArthur 
Fairis  v.  Walker 
Fairman  v.  Farmer 
VOL.  II.  53 


586, 


1663 
Murphy 

848,  857 

1710 

680 

588,  591,  600 

684 

1454 

748,  752 

1873 

1166 

1303,  1807 

435 

1219 


Fairman  v.  Peck  1855,  1859,  1921 

Falconer's  Succession  517 

Fales  V.  Gibbs  1290 

Fsflis  r.  Conway  F.  Ins.  Co.  252,  399, 

1046 

Falkner  i-.  Campbell  Press,  &c.  Co.        670 

V.  Equitable  Society  1864 

r.  Folsom  1584 

Fall  V.  Elkins  705 

V.  Evans  1570 

Fall  River  Sav.  Bank  c.  Sullivan  1903 

Fallass  v.  Pierce  518,  540 

Fallon  1-.  Butler  1717 

Fanning  v.  Dunham  1493 

Fant  V.  Fant  824 

V.  Kerr  1735 

Farebrother  v.  Wo;lehouse  884 

Fargason  v.  Edrington  459,  460,  461, 

557,  594 

Fargo  V.  Ames  120 

Farguson  v.  Johnston  627 

Faringer  v.  Ramsay  299 

Farley  v.  Cleveland  760 

I'.  Eller  1734 

V.  Goocher  29,  282,  342  c 

Farlin  v.  Sook  1658 

Farlow  v.  W^eildon  1 640 

Farmer  v.  Curtis  1102,  1402,  1414 

V.  Gross        267,  269,  273,  277,  288, 

325 

Farmers'  &  D.  Ins.  Co.  v.  German  Ins. 

Co.  966 

Farmers'  Bank  ;;.  Clarke  1634 

V.  Douglass  782 

V.  Mut.  Asso.  Soc.         785, 

924 

V.  Quick  1641,  1670 

Farmers'  F.  Ins.  &  L.  Co.  v.  Edwards 

889,  1093 
Farmers'  L.  &  T.  Co.  v.  Bankers'  & 

M.  Tel.  Co.  1651 

Farmers'  L.  &  T.  Co.  v.  Gary  160 

Farmers'  L.  &  T.  Co.  v.  Commercial 

Bank  101,  155,  156 

Farmers'  L.  &  T.  Co.  v.  Curtis        136,  353 
Farmers' L.  &  T.  Co.  I'.  Dickson  1412 

Farmers'  L.  &  T.  Co.  v.  Erie  Ry.  Co.  1442  a 
Farmers'  L.  &  T.  Co.  v.  Fisher  155 

Farmers'  L.  &  T.  Co.  r.  Hendrickson'    452 
Farmers'  L.  &  T.  Co.  i:  Hughes  1774 

Farmers'  L.  &  T.  Co.  v.  Maltby     528,  541, 
555,  586,  1621 
Farmers'  L.  &  T.  Co.  v.  Millard  1708 

Farmers'  L.  &  T.  Co.  v.  Postal  Tel.  Co. 

1444 
Farmers'  L.  &  T.  Co.  v.  Reid  1511 

Farmers'  L.  &  T.  Co.  v.  St.  Jo.  &  D. 

Rv.  Co.  452 

Farmers'  L.  &  T.  Co.  v.  Street  Car  Co. 

1440 
Farmers'  L.  &  T.  Co.  v.  New  Rochelle 

R.  R.  Co.  1436  a 

Farmers'  L.  &  T.  Co.  v.  Walworth  957 

Farmers'  &  M.  Bank  r.  Bronson  1440 

Farmers'  &  M.  Bank  r.  Drury  502 

833 


TABLE   OF   CASES. 


References  are  to  Sections. 


Farmers'  &  M.  Bank  v.  Kimmel  1493 

Farmers'  &  M.  Bank  v.  Luther  1618 

Farmers'  Nat.  Bank  v.  Fletcher       584,  585, 

834 

Farmers'  Nat.  Bank  v.  Eamsussen         1606 

Farnham  v.  Mallory  1709  b 

Farnsworth  v.  Boardman  769,  1866 

V.  Boston  681  a 

Farniim  v.  Burnett  364,  613,  1466 

V.  Metcalf  1055 

Farr  v.  Doxtaler  384 

Farrand  v.  Caton  627 

Farrant  r.  Lovel  1116 

Farrar  v.  ChaufFetete  444 

V.  Fessenden  1243 

V.  Payne  524,  1876,  1897,  1922 

Farrell  v.  Bean  299 

V.  Lewis  804,  817,  878 

V.  Parlier  1333,  1545,  1561 

Farringer  v.  Ramsay  335 

Farrington  v.  Woodward  560 

Farrior  v.  Security  Co.  134  a,  659 

Farris  v.  Houston  1115,  1116 

Farrow  v.  Commonwealtli  Ins.  Co.  408 

V.  Parlier  1333,  1545,  ly61 

Farwell  v.  Cotting  866 

V.  Murphy  1048,  1395 

V.  Sturdivaut  1085 

Fash  V.  Ravesies  467 

Fasholt  V.  Rued  593 

Fassett  v.  Mulock  817,  848,  956,  1621 

V.  Smith        365,  374,  382,  547,  966, 

967 

Faulkener  v.  Daniel  1525 

Faulkner  v.  Brockenbrough  55 

V.  Uverturf  1465 

Faulks  r.  Dimock  850 

Faure  v.  Winans  358,  414,  1080,  1135, 

1596,  1597,  1683 

Faurot  v.  Neff  874  a 

Fausel  u.  Schabel  1189 

Fawkner  v.  Scottish-Am.  Mort.  Co.         113 

Faxon  v.  Folvey  623 

Faxton  v.  Faxon  1189 

Fay  V.  Brewer  687,  702 

V.  Cheney  664,  702,  1248 

V.  Fay  874  a 

V.  Lovejoy  1493 

V.  Muzzey  433  a 

V.  Valentine  551,  603,  1049,  1070, 

1088,  1253,  1262,  1273 

Fears  v.  Albea  874,  874  a,  ■^11,  'ill  a 

Featherston  v.  McDonell  104 

Febeiger  v.  Graighead  665 

Fechet  v.  Drake  447 

Fechheimer  v.  Baum  1605 

Feder  v.  Abrahams  460 

Fee  V.  Cobine  279 

I'.  Swingly  39o,  702,  715 

Feigley  v.  Feigley  584 

Feirbough  v.  Masterson  586 

Feldman  v.  Beier  906,  908,  932 

V.  Gamble  613,  620,  622,  629, 

907 

Fell  y.  Brown  1075,1102,1402,1414 

834 


Fellowes  v.  Clay 
Fellowes  I'.  Dow 
Felton  V.  Bissel 
V.  Brooks 
V.  Farniin 
V.  Le  Breton 
i\  Smith 
Felts'  Appeal 
Fenner  v.  Tucker 
Fenuo  v.  Say  re 
Fen  ton  v.  Lord 

V.  Torrey 
Fenwick  v.  Reed 
Fergus  v.  Wilmarth 

V.  Woodworth 
Ferguson  v.  Ferguson 
V.  Glassford 
V.  Kimball 
V.  Miller 
V.  Popp 
V.  Smith 
V.  Soden 
V.  Wagner 
Fern  v.  Leuthold 
Ferrand  v.  Clay 
Ferras  v.  Cherry 
Ferris  v.  Crawford 
V.  Ferris 
V.  Hard 
V.  Hendrickson 
V.  Quimby 
V.  Smith 
V.  Wilcox 
Ferry  v.  Krueger 
V.  Mcckert 
Fery  v.  Pfeifter 
P'esmire  v.  Shannon 
Fessenden  i;.  Taft 
Fessler's  Appeal 
Fetes  i:  O'Laughlin 
Fetrow  v.  Merriwether 
Fetter  v.  Cirode 
Fewell  V.  Kessler 
Fiacre  v.  Chapman 
Fickes  v.  Ersick 
Fidelity  Co.  v.  Miller 


1193 

1088 

1174 

417 

1442 

1636,  1880,  1882 

229 

312 

1840,  1845,  18.52,  1912 

173,  644 

768,  953 

•   1909 

1153 

410 

1653,  1662,  1669 

1351,  1591 

479,  966 

1621,  1776 

242,  609 

893 

1420 

U.3,  646,  1105,  1808 

1088 

1414 

1911 

542 

644,  744,  751,  1380 

76, 1185 

1141,  1490 

814 

444 

515 

244,  339 

1498 

817 

586,  589 

959 

366,  646,  662 

172,  312,  374,  556 

344 

1175 

380 

943 

878,  1897  a 

1333,  1355 

1225 

1383 


V.  Mobile  St.  Ry.  Co. 
V.  Shenandoah  Val.  R. 

R.  Co.     128.168,578, 

957,  958,  966 

Fiedler  v.  Carpenter  1293 

i\  Darrin  266,  309,  339,  639 

Field  V.  Anderson  1469  a 

V.  Gooding        1741,  1888,  1892,  1904 

V.  Hawxhurst  1457,  1690 

V.  Holland  906,  907,  1683  a 

V.  Swan  777 

V.  Wilson  1192,  1195 

Fielder  v.  Varner  99,  1493,  1706,  1936 

Fields  V.  Helms  251,  103!L  1813  a 

V.  Sherrill  881,943 

Fievel  v.  Zuber  874  a,  877,  1204 

Fifield  u.  Sperry  1248 

Figart  v.  Haldermau  741,  744,  1629 

Figley  v.  Bradshaw  612  a 


TABLE   OF   CASES. 


References  are  to  Sections. 


Filmore  v.  Rcithman 
Finch  V.  Adams 

V.  Beal 

V.  Browu 


552 

263 

586 

1140 


V.  Houphton    919,  1521,  1522,1531  a 

V.  Magill  1408 

V.  Newnham  1062 

V.  Wiuchelsea  464 

Findlay  v.  Hosnier  950 

Findley  v.  Armstrong  217,  220 

Finlayson  i\  Lipscomb  1512 

Finley  v.  Bank  1609 

V.  Simpson  752,  761  a 

V.  Thayer  665,  954 

Finlon  v.  Ch\rk  664 

Finnagan  v.  Mancliestcr  1444 

Firebaiigh  v.  Ward  463 

Fire  Ins.  Co.  v.  Felrath  408 

Firemen's  Ins.  Co.  v.  Bay  113 

V.  Wilkinson     929,  942 

Firestone  v.  Klick  1619 

V.  State  1698 

First  Nat.  Bank  v.  Adam  166 

V.  Ashmead  241,  244, 

248,291,324,331,342  c 

v.  Bell  Mi n.  Co.  1746, 

1764, 1773,  1838 

V.  Bruce  83  c 

V.  Byard  380 

17.  Caldwell  186 

V.  Davis  652  a 

V.  Elmore       1.34,  431,  445, 

870 

i;.  Essex         863,  870,  873 

V.  Gage  1516 

V.  Garlingliouse  111 

V.  Gough  27,  98 

V.  Hayzlett  464 

V.  Holt  1606 

V.  Honeyman  842 

y.  Kreig        41,244,342  c, 

974, 1769 

V.  Maxfield  134 

V.  Mining  Co.    1764,  1773 

V.  New  Milford  560 

V.  Peck  76,  1183 

V.  Salem  Flour  Co.     1441 

V.  Schussler  758,  827 

V.  Schween  135 

V.  Sheafer  478 

V.  Stiles  844  a 

Fish  V.  Fish  701 

V.  French  841 

V.  Gordon  867 

V.  Hay  ward  742,  1190 

V.  N.  Y.  Taper  Co.  97,  447 

Fisher's  Appeal  124,288 

Fisher  v.  Cowles  481 ,  495,  820,  956  a, 

957,  1439,  1440 

V.  Dillon  878 

V.  Dixon  441,  451 

V.  Green  265,  1733 

V.  Holden  900 

V.  Lodge     .  964 

V.  Meister  612 


Fisher  v.  Milmine  501,  682,  1176 

i;.  Mossman  1204,1214 

V.  Otis  367,  659,  814,  817,  834, 

836,  904,  1487 

V.  Shaw  1267 

V.  Wiiham  312 

Fishwick  v.  Lowe  1401 

Fisk  V.  Duncan  1355 

V.  Stevens         741,  755,  761  b,  763,  764 

V.  Stewart  272,  331,  1146 

Fiske  V.  Fiske  391,  1310 

V.  McGregory  861 

u.  Tolman  738,  749,  769 

Fitch  V.  Boyer  99,  526 

V.  Coit  1567 

V.  Cot  heal  114,  865 

V.  Lewiston  Steam  Mill  Co.    124, 130 

V.  Pinckard  27,  1229 

V.  Remer  657,  659 

V.  Wetherbee  1733 

V.  Willard  1922 

Fitchburg  Manuf.  Co.  v.  Melven      771,  774 

Fitchburg  Sav.  Bank  v.  Amazon  Ins. 

Co.  406 

Fithian  v.  Corwin  870 

V.  Monks  1345 

Fitts  V.  Davis  470 

Fitzgerald  v.  Barker  460,  744,  758 

V.  Beebe  19 

V.  Fauconberg  562 

V.  Forristal  1333 

V.  Goff  501 

Fitzhugh  V.  Maxwell  236 

V.  McPherson  652,  1391 

V.  Smith  172 

Fitzpatrick  v.  Fitzpatrick  1840,  1843 

Fitzsimmons  v.  Baum  639 

Flachs  V.  Kelly  878 

Fladland  v.  Delaplaine  57 

Flagg  V.  Flagg  668,  702,  792 

r.  Geltmacher  741,  758,  876,  879 

I'.  Investment  Co.  1710 

I'.  Mann  168,241,244,257,262, 

265,  266,  272,  285,300,  325,  353, 

546,  5,55,  587,  588,  589 

V.  Munger               ■  764 

V.  Thurber  751 

Flake  i'.  Nuse  894 

Flanagan  v.  Cushman  469 

V.  Westcott  676,  936 

Flanders  v.  Doyle  744,  746 

V.  Grcely  137 

V.  Hall  1108 

t\  Lamphear  388,  389,  391,  668 

V.  O'Brien  99 

V.  Thomas  1940 

Flannary  r.  Utley  874  c 

Fleishhaucr  v.  Doellncr  741,  1597,  1719a 

Fleming  v.  Burgin  539 

V.  Gorhani  83  a 

V.  Parry  984 

I'.  Siiton  1352,  1552,  1711 

V.  Soutter  1577 

Fleschiier  v.  Snm])tcr  458,  459,  495 

Fletcher  v.  Carpenter  702,  804,  805 

835 


TABLE   OF   CASES. 


References  are  to  Sections. 


Pletcher  v.  Carj       1253,  1258,  1273,  1276, 

1287 

V.  Chamberlin  702 

t'.  Daugherty    352,  1179  a,  1182  a, 

1 1 83  a 

V.  Holmes         28,  U21,  1715,  1720 

r.  Hutchinson    ■  1323,  1413,  1719  a 

V.  Kelly  1606 

V.  Noithcross  269 

Fliess  V.  Buckley        1688,  1690,  1695,  1717 

mint  V.  Clinton  Co.  1780 

V.  Sheldon  244,  272,  300 

iFlint  &  P.  M.  Ky.  Co.  v.  Auditor 

Gen.  36,  62 

Florence  Land  Co.  v.  Warren  1322 

Florence  S.  M.  Co.  v.  Zeigler  556 

JFlournoy  v.  Harper  1439 

Flower  v.  Corni.sh  630 

V.  Elwood  913,  924,  926,  929, 

980,  1789,  1799,1939 

V.  O'Brannon  345 

Flowers  v.  Barker  1439 

V.  Wilkes  517 

Floyd  Co.  V.  Morrison  622,  631,  682 

Floyd  V.  Harding  464,  466 

J?lynn  v.  Bourneuf  1897  a 

V.  Flynn  610,  612 

V.Lee  1211 

r.  Powers  104,116 

JFlynt  V.  Hubbard  679 

Fobes  V.  Cantfield  651 

J'ocke  V.  Weishuhu  877,  924 

Joerst  V.  Masonic  Hall  Asso.  1185 

Fogsd  V.  Pirro  715,  1070,  1074,  1128, 

1160 
_Fogarty  v.  Sawyer        20,  1725,  1769,  1773, 

1861,  1889 
Fogg  V.  Middlesex  Mut.  F.  Ins.  Co.       406, 

413  a,  427 

V.  Rogers  226 

Foley  V.  Greene  626 

V.  Howard  84,  501 

V.  Kirk  282 

V.  Rose  822 

Follansbee  v.  Johnson  758 

Follett  V.  Heath  •  350 

Folsom  V.  Belknap  Co.  Ins.  Co.  422 

V.  Cragen  609 

Foltz  V.  Wert  464 

Fond  du  Lac  Co.  v.  Haskins  1432 

Foote  V.  Gooch  428,  429,  436 

V.  Hanibrick  94 

V.  Hartford  Ins.  Co.  423 

V.  Lathrop  1420 

V.  Sprague  635,1477,1606a 

Forbes  v.  McCoy  379,  1472 

V.  Moffatt  848,  870 

V.  San  Rafael  Turnpike  Co.        127 

Force  v.  Elizabeth  650,  651,  652 

Ford  r.  Ager  1208 

V.  Burks  942 

V.Cobb  431,436  a,  445 

V.  Daniels  99 

V.  David  760 

V.  Hancock  639 

836 


Ford  V.  Heely 

1810 

V.  Irwin 

261,  326 

V.  James 

515 

V.  Marcall 

597 

V.  Olden 

340, 711, 1876 

V.  Russell 

1744 

V.  Smith 

1513 

V.  Steele 

719 

V.  Sutherlin 

150 

V.  White 

539 

Fordham  r.  Wallis 

1173 

Forepaugh  v.  Appold 

464,  538 

Forest  v.  Jackson 

586:  1144 

Forest  Oil  Co.'s  Appeal 

885  6 

Forgy  V.  Merryman 

744 

Forrer  u.  Kloke 

1439 

Forrester  v.  Moore 

1912 

V.  Scoville 

1912 

Forstall  i'.  Blanchard 

907 

Forstall's  Succession 

817 

Forster  v.  Hoggart 

1810,  1824 

V.  Mellen 

889 

V.  Thompson 

1172 

Forston  v.  Caldwell 

1359 

Forsyth  v.  Freer 

374,  378 

V.  Rowell 

1229 

Fort  V.  Burch            479, 

482,  538,  554,  559, 

1653 

V.  Roush  1681 

Fort  Dodge  Bldg.  Asso.  v.  Scott  874  d 

Fort  Scott  V.  Schulenberg  1207 

Fortier  v.  Darst  838 

Fortman  v.  Goepper  435,  445 

Fortune  v.  Watkins  474 

Forwood  r.  Dehoney  229,  230 

Fosdick  r.  Barr  465,  474,  504 

r.  Gooding  1292 

17.  Risk  1229 

V.  Schall  160 

Foss  V.  Hildreth  1310 

Foster's  Appeal  123,  458,  469 

Foster  v.  Atwater  748,  769 

V.  Reals  791 

V.  Beardslev  Scythe  Co.  503 

r.  Boston    '       "  1547  a,  1782 

V.  Carson  791 

V.  Equitable  Mut.  F.  Ins.  Co. 

413  a,  421,  427 
r.  Goodrich  1816,1820 

V.  Harvey  1572 

r.  Hickox  1420,  1421 

V.  Hodgson  1173 

V.  Hughes  1147 

V.  Johnson        135,  1210,  1395,  1439. 
1441 
V.  Paine  924,  957 

V.  Potter  1929 

V.  Prentiss  438 

V.  Reynolds  374,  376,  1804 

V.  Stallworth  552 

V.  Strong  574,  838 

V.  Union  Bank  1620 

V.  Van  Reed  397,  409,  412,  418, 

420 
V.  Wightman  744,  1303,  1707 


TABLE   OF   CASES. 


References  are  to  Sections. 


Fouch  V.  Wilson  81 

Fouche  V.  Delk  947 

U.Swain  517,870,1095 
Fountain  v.  Schulcnberg,  &c.  Lumber 

Co.  281 

Fourth  Nat.  Bank's  Appeal      1701  a,  1706 

Foushee  v.  Grigsby  487 

Fowle  V.  Merrill  1853 

Fowler  v.  Adams  320,  335 

V.  Barksdale  1628 

V.  Bush  926 

V.  Equitable  Trust  Co.         633,  634, 

635,  642,  642  a,  657,  1923  a 

V.  Fay  740,  748 

V.  Hart  99 

V.  Johnson      1459,  1707,  1859,  1937 

V.Lilly  1406 

V.  Scully  134 

Fowley  v.  Palmer  409,  414,  420,  1135 

Fox  u.  Blossom  1145,1214  a 

V.  Fraser  62,  170,  294 

V.  Hall  464,  467 

V.  Heffner  332 

V.  Lipe  634,  715 

V.  Mackreth  1878 

V.  Pratt  1693 

r.  Thibault  519 

V.  Willis  710 

V.  Wray  820 

Fraim  v.  Frederick  555 

Fraker  v.  Houck  1161  a 

Frames.  Bell  1334 

Francis  v.  Church  1676 

V.  Parks  1107 

V.Porter  28,1187,1188 

Francisco  v.  Sheltou  755 

Francklyn  f.  Feru  1069 

Frank  v.  Davis  1709  a,  1709  b 

V.  Harrington  697 

V.  Pickle  1220.  1225 

Frankland  v.  Moulton  433,  445,  446 

Franklin  v.  Ayer  248,  291 

V.  Cannon  504,  517,  924 

V.  Gorham  356,  1072 

V.  Greene  1875 

V.  Kurtz  1606 

V.  Osgood  1790 

V.  Thurston  1334 

V.  Twogood  682,  834 

r.  Van  Cott  1685,  1686 

Franklin  Ins.  Co.  v.  Martin  408 

Franklin  Sav.  Bank  v.  Miller  IGG 

Franklin  Sav.  Inst.  v.  Central  Mutual 

F.  Ins.  Co.  406,  413 

Franklyn  v.  Ilayward  848,  856,  1371, 

Franse  v.  Arm  buster  1514 

Franz  v.  Orton  342  c,  589 

Fraser  v.  Bean  1193,  1204,  1414 

V.  Pendlebury  903,  1085 

Frash  v.  Glcndy  981 

Frasher  v.  Ingham  1646  a 

Fratt  V.  Whitticr  429 

Fray  v.  Drew  1059 

F razee  v.  Inslee  605 


Frazier  v.  Crafts 

467 

V.  Hendren 

226 

V.  Keller 

1805,  1813  a 

V.  Miles 

1406 

Frear  v.  Drinker 

915,  1355 

Frederick  v.  Devol 

438 

V.  Ewrig 

1051 

V.  Williams 

1151 

Freeby  v.  Tupper 

1229 

Freedman's  Sav.  &  Trust  Co.  v.  Dodge 

1709 

Freedman's  Sav.  &  Trust  Co.  v.  Shep- 

herd 

670,  1520,  1521 

Freeland  v.  Freeland 

1296, 1297,  1309 

Freeman  v.  Atwood 

1263 

V.  Auld     378,  575,  740,  744,  1491, 

1494 

V.  Baldwin 

244 

V.  M'Gaw 

808,  859 

V.  Munus 

1681 

V.  Paul 

870 

V.  Peay 

84,  501 

V.  Schroeder 

501,  608,  1688 

V.  Scofield 

1382,  1383 

V.  Wilson 

113,  118,  275,  279, 

303,  324 

Freeman's  Bank  i-.  Vose 

69 

Freer  v.  Lake 

265 

Freeson  v.  Bissell 

237* 

Freiberg  v.  Majiale 

364,  372,  517 

Freichnecht  v.  Meyer 

1128 

Freison  v.  Bates  College 

1296 

Frelinghuyseu  v.  Colden 

1516,  1663,  1664 

French  v.  Baron 

1132 

V.  Burns 

289,  340 

V.  Case 

393 

V.  De  Bou 

966  a 

V.  Griffin 

98,  1190,  1464 

V.  Kennedy 

1139 

V.  Lovejoy 

120 

V.  Loyal  Co. 

546,  574,  583 

V.  Lyon 

289 

V.  New 

1477 

V.  Snell 

1807  b 

V.  Stnrdivant 

244,  265,  275 

V.  Turner 

817,  831,  1427 

V.  Williams 

318 

Frey  v.  Campbell 

244,  1124 

V.  Clifford 

460 

V.  Drahos 

435 

V.  Vanderlioof 

861,  865 

Frey  tag  v.  Hoeland 

335, 1116 

Prick's  Appeal 

281 

Frick  Co.  v.  Ketels 

1632 

Frickee  v.  Douner 

112,  114,  626 

Fridley  v.  Bowen 

924 

Friedley  v.  Hamilton 

243,  244,  253,  312, 

513 

Friemansdorf  v.  Watertown  Ins.  Co.       408 

Frierson  v.  Blanton 

79,  670,  681,  1758, 

1773 

Frieze  ;•.  Chapin 

1805,  1807,  1811 

Friezen  v.  Allemania  F. 

In.s.  Co.              422 

Frink  v.  Adams 

308,  339 

V.  Branch      349,  927,  932,  1456,  1594 

837 


TABLE   OF   CASES. 


References  are  to  Sections. 


Prink  i\  Hampden  Ins.  Co. 

V.  Le  Roy 

V.  Murphy 

V.  Roe 

V.  Thompson 
Frisbey  v.  Thayer 
Frisbie  v.  Batenian 
V.  Fogarty 
Frische  v.  Kramer 


408 

20,  715,  1152 

1074 

1658 

1751,  1904 

14 

1520 

1653 

673,  874,  1395,  1654, 

1678 

Fritz  V.  Simpson  1088 

Frizzle  v.  Dearth  1541 

Frost  V.  Beekman      488,  495,  515,  517,  531 

y.  Bevins  1617 

V.  Frost  1409 

V.  Koon      982,  1439,  1440,  1473,  1589 

V.  Peacock  1691 

V.  Shaw  676,  745 

V.  Yonkers  Sav.  Bank    608,  792,  873, 

894,  900,  1064,  1087 

Frostburg  Mat.  Build.  Asso.  v.  Brace     494 

Frostburg  Mut.  Build.  Asso.  v.   Low- 

dermilk  1740,  1785,  1787 

Frothingham  v.  March  1838 

V.  McKusick  689 

Fry's  Appeal  1935 

Fry  V.  Hamner  117,  874  c 

V.  Ins.  Co.  1618 

»  V.  Martin  456,  539 

V.  Russell  893 

V.  Shehee  560 

V.  Street  1915 

Fryar  v.  Fr3'ar  1937 

Fryatt  v.  Sullivan  Co,  446 

Frve  V.  Bank  of  III.  364,  368,  372,  955 

Fryer  v.  Rockefeller      488,  499,  1457,  1645, 


Fuchs  V.  Devlin 
Fuhrman  v.  Loudon 
Fulford  V.  Keerl 
Fullam  V.  Stearns 
Fuller  V.  Benett 

V.  Bradley 

V.  Brown 

V.  Cunningham 

V.  Eastman 

V.  Eddy 

V.  Geesen 

V.  Hilton 

V.  Hodgdon 

V.  Hollis 

V.  Hunt 

V.  Langum 

V.  O'Neil 

V.  Parrish 

V.  Pratt 

V.  Russell 

V.  Scribner 
Fulthorpe  v.  Foster 
Fulton  V.  Johnson 
V,  Levy 

V.  Moore 
Fulton  Bank  v.  N.  Y. 
Funk  V.  Eggleston 

V.  McReynold 


1646 

1442  n 

496 

745 

435, 442 

560,  561,  562,  564 

706 

1600 

508,  517 

1296,  1306,  1309 

702 

1351,  1653 

584 

680 

874  a 

177,  736 

1929 

1861 

301 

244 

1262 

1411 

11.53 

1771  a,  1830,  1895 

1347 

1613 

Canal  Co.      566,  570 

1821 

606,  880,  1699 


Funk  V.  McReynolds 

1911 

V.  Paul 

460 

Funkhouser  v.  Lay 

557 

Furbish  v.  Sears 

390, 1287 

Furbush  v.  Goodwin 

42,  702,  808,  946 

Furguson  v.  Coward 

1902 

Furlong  v.  Cox 

413 

V.  Randall 

1105 

Furman  v.  Meeker 

1506 

Furnas  v.  Durgin     752,  768,  769,  770,  1263 


G. 


11,  817 

.'  784 


Gabbert  v.  Schwartz 

V.  Wallace 
Gabbey  v.  Forgeus 
Gable's  Appeal 
Gaffw.  Harding 
GafFney  v.  Hicks 
Gaiford  v.  Proskauer 

V.  Stearns 
Gage  ?'.  Board  of  Directors 

V.  Brewster         936,  1075,  1084, 
748 


748,  752,  757 


460 


V.  Jenkinson 
V.  Lewis 
V.  McGregor 
V.  Parry 
V.  Perry 
V.  Stafford 
Gahn  v.  Niemcewicz 
Gaines  v.  Allen 

V.  Brockerhoff 
V.  Walker 
Gair  v.  Tuttle 
Gaither  r.  Clarke 
Galbreath  v.  Drought 

V.  Estes 
Gale  V.  Battin 
V.  Gould 
V.  Morris 
V.  Parks 
r.  Ward 
Gallagher  v.  Egan 

V.  Galletley 
V.  Giddings 
Galland  v.  Jackman 
Galhiiian  v.  Cunningham 
Gallatin  Co.  i'.  Beattie 
Galliher  v.  Davidson 
Galloway  v.  Litchfield 
Gallup  V.  Jackson 
Galpin  v.  Abbott 

V.  Page 
Gait  V.  Jackson 
Galveston  R.  R.  Co.  v.  Cowdrey     152, 
452,  608, 
Galway  v.  Fullerton 
V.  Malchow 
Gamble  v.  Caldwell 

V.  Horr 
Gambril  v.  Doe 
Gammon  ik  Hodges 
Gamut  V.  Gregg 
Ganceart  v.  Henry 


723,  1621, 


114 
1781, 

1396, 

1889, 1929, 

244,  299,  639 


99,  166,  186,  542,  549 

435 
1603 


342  c, 


265 


134  a,  1879, 


1060, 


834 

817 

626 

113 

817 

,  769 

1496 

,  833 

1440 

1113 

,  750 

769 

1624 

627 

1440 

1374 

,  942 

1882 

332 

1436 

1940 

,  644 

1658 

583 

808 

614 

,  574 

1659 

,  444 

1604 

465 

1108 

548 

1465 

39  a 

1116 

990 

917 

,  494 

1587 

,  268 

154, 

1385 

817 

464 

1891 

1654 

635 

526 

1546 

1094 


838 


TABLE   OF   CASES. 


References  are  to  Sections. 


Gans  V.  Thieme 

V.  Williams 
Gantt  V.  Grindall 
Gantz  V.  Toles 
Garanflo  v.  Cooley 
Gavber  v.  Heury 
Garden  v.  Ingram 


874,  874  a,  ^11,  878 

117 

1808 

1620,  1742,  1838,  1888 

1658 

365 

409 


Gardiner  v.  Gerrish 

r.  Schermerhorn 
V.  Woodmansee 

Gardner  v.  Armstrong 
V.  Astor 
V.  Barnes 
V.  Brown 
V.  Case 
V.  Diederichs 
V.  Emerson 


825 

1673 

74 

1903 

848,  855 

1929,  1934 

619,  1397 

113,  1492 

356,  607,  1699 

361,  532,  730 


V.  Finley 
V.  Gardner 
V.  Heartt 
r.  James 
V.  Lansing 
V.  Maxwell 
V.  Moore 
V.  Ogdcn 
V.  Terry 
V.  Webber 
V.  Weston 
Garforth  v.  Bradley 
Gargan  v.  Grimes 
Garland  v.  Richeson 
V.  Sperling 
V.  Watson 
Garlick  v.  Jackson 
Garlock  v.  Geortner 


144,  428,  436,  1657 

109 

454,  695,  696 

913,  943,  944 

1436 

834 

82,  494 

1878 

1192,  1204,  1815 

379 

295, 335 

892,  1215 

1051 

813 

264 

1116,  1876 

1108  a 

913 


Gatewood  ;;.  Gatewood 

Gault  V.  McGrath 
Gausen  r.  Tomlinson 
Gautzcrt  v.  Hoge 
Gay  V.  Davis 

V.  Hamilton 

V.  Ilassam 
Gayle  v.  Fatile 
V.  Wilson 
Gayle,  Succession  of 
Gaylord  v.  Knapp 

V.  La  Fayette 
Gaynor  v.  Blewett 


Gavtes  r.  Franklin  Savings  Bank 


874,  874  a,  877, 

1067,  1086 

382,  930 

534 

761  a 

1606 

248,277,  288 

1198 

1500,  1740 

736,  740,  748,  855 

456 

1225 

1587 

1516,  1536 


Garnsev  v.  Rogers    735,  751,  756,  757,  763, 
^  '  764 

Gair  V.  Bright  1603 

Garretson  v.  Cole  1663 

Garrett  v.  Lyle  5S6 

V.  Moss  1677 

t'.  Piickett  575,1373,137  7 

Garrison  v.  Hay  don  510 

Garritee  r.  Popplein  1670 

Garroch  v.  Sherman  807 

Garstone  v.  Edwards  1640 

Garth  v.  Cotton  685 

V.  Ward  1411 

Garton  v.  Bank  1383 

Garwood  v.  Garwood  465 

Garyu.  Miiy  1204 

Gaskell  v.  Durdin  1373,1411 

u.  Yiquesncy  1113,1118a, 

1123rt 

Gaskill  r.  Sine  1620,1621,1631 

V.  Wales  874  a,  874  c 

Ga.ssen  r.  Hendrick  460 

Gassenlieimer  v.  Moulton  665 

Gassert  f.  Black  1464,1496 

t'.  Bogk        1  6,  247  (I,  248,  258,  262, 

263,  265,  267,  269,  270,  277, 

279,  304  a,  326,  343 

Gaston  v.  White  235 

Gates  w.  Adams  1361 

V.  Sutherland  282 


Gazley  v.  Herring 
Geary  v.  City  of  Kansas 

V.  Porter 
Gedye  i-.  Matson 
Geib  r.  Reynolds 
Gelpcke  v.  Dubuque 
Gelston  v.  Burr 

V.  Thompson 
General  Ins.  Co.  v.  U.  S.  Ins.  Co 
Genthuer  v.  Fagan 
Gentis  v.  Blasco 
George  v.  Andrews 

V.  Arthur 

V.  Baker 

V.  Cooper 

V.  Hart 

V.  Kent 


1397 

324,  335 

493 

627 

883,  1432 

924,  927,  971 

653,  1141 

669 

1119 

476 

1492 

1338 

739,  741,  742 

1751,  1838 

796, 1251,  1285 

473,  566 

1335, 1336 


524,  544,  552,  573,  574, 

575,  1092,  1621 

I'.  Lndlow  1308,1469  a 

V.  W^ood  523,  530,  723,  1074, 

1090,  1621,  1631 

George's  Creek  Co.  v.  Detmold  34,  667 

Georgia  Home  Ins.  Co.  v.  Kinnier  425 

Georgia  Railroad  Co.  v.  Pendleton         1606 

V.  Walker  1395, 

1620,  1678,  1679 

Gerald  v.  Gerald  166,  627,  1663 

Gerard  v.  Baker  964 

Gerber  v.  Sharp  881,  1699,  1700 

Gerdine  v.  Menage  736,  746,  768,  876, 

877,  879,  966 

Gere  v.  Gushing  487 

German-Am.  Bank  v.  Agricultural  Ins. 

Co. 
German-Am.  Deposit  Co.  v.  Dietz 
German-Am.  Seminary  v.  Saenger 
German  Bank  v.  Stumpf 
German  Ins.  Co.  v.  Davenport 
I!.  Nichols 
V.  Smelker 
German  Nat.  Bank  v.  Barbara 
German  Sav.  Soc.  v.  Fisher  _ 
Germania  Bldg.  Asso.  i'.  Neill 
Germantown  Ins.  Co.  u.  Dhein 
Gernier  v.  Ensign 
Gerrish  v.  Black 


V.  Mason 
Gerry  v.  Post 
Gervvig  v.  Sitterly 


426 
1636 

665 
1838 
1512 
1439 

411 
1323 
1222 

9.50 
1464 
1640 
1105,  1106,  1112,  1122, 
1133, 1247 
720, 1256 
1585 

885 

839 


TABLE  OF   CASES. 


References  are  to  Sections. 


917 

1647 

162,  163,  168,  171 

487 

1487 

68 

679,  1180,  1876,  1891, 

1922 

536 

1790 

258,  316,329 

679 

574 

1248,  1258 

1879 

848,866,  1063,  1067, 


Gescheidt  v.  Drier 
Gest  V.  Flock 

V.  Packwood 
Getchell  v.  Allen 
Getzlaff  V.  Seliger 
Geyer  v.  Girard 
Gibbons  v.  Hoag 

Gibbs  V.  Grant 
V-  Marsh 
V.  Penny 
V.  Thayer 
Gibert  v.  Peteler 
Gibson  v.  Bailey 
V.  Barber 
t'.  Crehore 

1090,  1133,  1139,  1140,1420 

V.  Eller  274 

V.Farley  771 

V.  Green  924 

i;.  Hough  26,513,665 

V.  Jones  1822,  1830 

V.  Keyes  458 

V.  McCormick  982 

V.  Miln  957 

V.  Seymour  343,  513 

V.  Taylor  391 

V.  Warden  1231 

Giddings  v.  Crosby  1359 

V.  Sears  627 

V.  Seevers  403 

V.  Seward  964 

Gies  u.  Green  1709  a 

Giffard  v.  Hort  1401 

GifFord  v.  Benefit  Society  754 

V.  Corrigan  752,  758,  762,  763, 

764 

V.  Workman  1403 

Gihon  I'.  Belleville  Co.  1439 

Gilbert,  Matter  of  1374 

Gilbert  v.  Anthony  90 

V.  Averill  525,  740 

V.  Cooley  812,  1678,  1902 

V.  Deshon  339 

V.  Dupree  117 

V.  Gilbert  874  c 

V.  Haire  7i3,  1621,  1670 

r.  Holmes  617,618 

V.  Husmau  1335 

V.  Maggord  1333,  1420 

V.  Penn  136 

r.  Priest  1232 

V.  Sanderson  763 

V.  Shaw  1186 

V.  Thayer  848,  870  a 

V.  Wiman  384,  1472 

Gilchrist,  m  re  1821 

Gilchrist  v.  Beswick  279,  319,  325,  328, 

329 

V.  Gough  458,  460,  461,  515, 

518 

V.  Patterson    .  19 

Giles  V.  Baremore  915,  1195 

V.  Hartis  893 

V.  Lewis  1328 

840 


Giles  V,  Lyon 
Gilkerson  v.  Connor 
Gill  V.  Bradley 
V.  Clark 
V.  Hardin 
V.  Henry 
V.  Pinney 
V.  Truelsen 
Gillespie  v.  Lovell 
V.  Moon 
V.  Rogers 
V.  Smith 
Gillelt  V.  Balconi 

V.  Eaton 
Gillette  v.  Ballard 
V.  Smith 


1092 

172 

1444 

168 

5S6,  597,  711 

630 

70,  352,  509 

1457 

1336 

490,  1464 

504,  517 

1859 

697,  1174,  1471,  1658 

57,  716,  1654,  1678 

643 

1204,  1215 


Gilliam  v.  McCormack 
Gillig  V.  Maass 
Gillis  I'.  Martin 
Gillum  V.  Collier 
Gillmour  v.  Ford 
Gilman  v.  Brown 
V.  Hidden 


728 

481,  608,  851 

271,  1128 

83  a 

1591 

217 

1258 


V.  111.  &  Miss.  Tel.  Co.      670,  1215 

V.  Moody  70,  606,  607  a 

r.  Wills  675,697,702,1116, 

1120 

Gilmer  v.  Wallace  1813  a 

Gilmore  v.  Bissell  651 

i^.  Ferguson  1606  a 

Gilson  V.  Gilson         135,  166,  39.3,  794,  958, 

1283 

V.  Whitney  1569 

Gimbel  v.  Pignero  1772 

V.  Stolte  708 

Ginn  v.  New  Eng.  Sec.  Co.  642 

Giraldin  v.  Howard  1549 

Girard  Life  Ins.  &  T.  Co.  v.  Stewart       757 

Girardin  v.  Lampe  479,  495,  540 

Gittings  V.  Nelson  150 

Givan  v.  Doe  787 

Given  v.  Marr  848,  855 

Givens  v.  M'Calmot  1116 

Gjcrness  v.  Mathews  713 

Ghicius  V.  Fagel  1717 

Gladden  v.  Mortgage  Co.  1618 

Gladding  v.  Warner  1140 

Glading  u.  Frick  504,517 

Gladwyn  v.  Hitchmau  1174,  1177 

Glass  y.  Ellison  11,664 

V.  Hulbert  300,  322 

V.Warwick  112 

Glasscott  V.  Day  1088 

Gleason  v.  Burke  639 

V.  Hamilton  1492  a 

V.  Kinney  1590 

V.  Sprav  83  a 

V.  Wright  924 

Gleaton  v.  Gibson  1512 

Gleises  v.  Maignan  1381 

Glendenning  v.  Bell  467,  586,  589 

V.  Johnston  247 

Glendy  r.  Lanuing  981 

Glenn  y.  Clark  105,106 

V.  Whiyjple  1500,  1502 


TABLE   OF   CASES. 


References  are  to  Sections. 


Glidden  v.  Andrews  1072,  1442 

V.  Hunt  .  436,  557,  559,  841 

Glides.  Dwyer  1383,1671 

Glisson  V.  Hill  310 

Globe  Ins.  Co.  v.  Lansing  1228,  1709  a 

Globe  Marble  Mills  Co.  v.  Quinn     441,  774 


Glover  V.  Benjamin 
v.  Hale 
V.  Hembree 
V.  Payn 
Glynn  v.  Home  Bld'j^ 
Goar  V.  McCanless 
Gocbenour  v.  Mowry 
Goddard  v.  Coe 

V.  Prentice 
V.  Sawyer 

V.  Selden 
Godoffroy  v.  Caldwell 
Godfrey  v.  Watson 
Godfroy  v.  Stocke 
Goebel  v.  Iffla 
Goenen  v.  Schroeder 


Goff  V.  Eamsey 
V.  Rogers 
Goins  V.  Allen 
Golcher  v.  Brisbin 
Goldbeck's  Appeal 
Goklfrank  v.  Young 
Goldsmid  v.  Stonehewer 
Goldsmith  v.  Bank 
V.  Brown 
V.  Osborne 


Goldtree  v.  McAllister 
Goltra  V.  Green 
Goninan  v.  Stephenson 
Gooch  V.  Botts 

V.  Vaughan 
Goodale  v.  Wheeler 
Goodall  V.  Boardman 

V.  Mopley 
Goodall's  Case 
Goodbar  v.  Dunn 
Goode  V.  Comfort 

V.  Cummings 

V.  Job 
Goodell  ?;.  Harrington 
Goodenough  v.  McCoid 
Goodcnow  r.  Curtis 
V.  Ewer 


1712 

1862 

1804, 1805, 1811 

262,  265,  275,  279 

Asso.  296 

822 

679,  1712 

69,  242 

466 

352,  365,  380,  661, 

662 

1567 

842 

1132, 1137 

1745 

1439,  1589 

930,  932,  1051, 

1511 

597 

627 

586 

1193, 1850, 1904 

1070 

1204 

1397 

843 

1713 

1095,  1614,  1672, 

1866,  1876,  1921 

1444 

1587 


1134,  1549 
1803,  1813 
1854 
1191, 1632 
1378,  1435 
6 
489 
1859,  1866 
1335 
1170 
1638 
463 
95 
20,  9.53,  1404,  1543, 
1558,  1589,  1679 
113 
353,  368,  1469 
1 536 
453,  455,  695 
1710 
1176,  1181 
258,  264,  280 
684 
99,  168,  744 
1048,  1057,  1395, 
1396,  1558 
Goodrich  v.  Comniissiouers  681  a 


Goodgion  v.  Vaughn 
Goodhue  v.  Berrien 
V.  Daniels 
Gooding  v.  Shea 
Goodlett  V.  Investment  Co. 
Goodman  v.  C.  &  C.  K.  K.  Co 

V.  Gricrson 

V.  Kine 

V.  IJandall 

V.  White 


1813,  1820 

62 

634, 652  a 

1223 

85,  501 

9 

586 

547,  548 

870,  1496 

501 

135,  664,  702, 

704,  958 

1642 

1658 

237 

1144,1195 

865,  947 

848,  870 

74, 1141 

365,  371 

639, 1116 

1334 


Goodrich  v.  Foster 

V.  Milwaukee 

V.  Reynolds 

V.  White 
Goodsell  V.  Stinson 
Good-title  v.  No-title 
Goodwin  v.  Cloudman 

V.  Dean 

V.  Keney 

V.  Owen 

r.  Richardson 

V.  Simouson 
V.  Smith 
Goodwine  v.  Morey 
Goodwyn  r.  Baldwin 
Goodyear  v.  Goodyear 
Gopaldoss  V.  Seochand 
Gordillo  v.  Weguelin 
Gordon  v.  Graham 
V.  Hobart 
V.  Lee 

i'.  Lewis  1124,1129,1139,1244 

V.  Mass.  F.  &  M.  Ins.  Co.  398 

V.  Mulhare  814,  962 

V.  Preston  129,  134,  348 

V.  Rixey  221,  479 

V.  Saunders  1643 

V.  Ware  Sav.  Bank  410,  910 

Gore  V.  Jenness  144,  689 

V.  Lewis  633,  643,  1300 

V.  Stackpoele  1401 

V.  Townsend  114 

Goree  v.  Clements  326,  330 

Gorham  v.  Arnold  36 

V.  Farson  713,  894,  1545 

V.  Meacham  84,  101  a 

V.  Summers    ,  515 

Goring  V.  Shreve  1229,  1698 

Gormley  v.  Bunyan  358 

Gorton  v.  Paine  1663 

Goss  17.  Pilgrim  1359 

V.  Singleton  1790 

Gossin  V.  Brown  881 

Gossom  V.  Donaldson  583,  1672 

Gossum  V.  Gossura  297,  329 

Gothainer  r.  Grigg  281 

Gotham  v.  Gotham  528 

Gothard  v.  Flynu  185 

Gott  r.  Powell  1587 

Gottschalk  v.  Neal  814 

Gould  V.  Day  864 

V.  Holland  Purchase  Ins.  Co.        426 

V.  Lamb  '*" 

V.  Libby  1670,  1671,  1676, 1680 

V.  Marsh  817,  834 

V.  Mortimer  1668,  1669 

r.  Newman  787,789,817,1281 

i;.  Tancred  "                  1140 

Gould  r.  Wheeler  1425,1442 

^.  White  915,1269 

Goulding  V.  Punster  268,  842,  945 

Gourdin  v.  Commander  ''0 

Gouvcrueur  v.  Lynch  586,  593,  1624 

V.  Titus     ,  490 

841 


TABLE   OF   CASES. 


References  are  to  Sections. 


Gowan  v.  Jones 

1637 

V.  Smith 

468 

Gower  v.  Carter 

1606  a 

V.  Doheney 

467 

V.  Howe 

813, 

1377,  1427 

V.  Winchester 

1048, 

1146,  1160, 
1207,  1425 

Grable  v.  McCulloh 

28 

Grace  v.  Hunt 

1444 

V.  Mercer 

665 

?;.  Wade 

467 

V.  Whitehead 

104 

Gracey  v.  Myers 

1621 

Grady  v.  O'Reilly 

877,  881 

Gr£eme  v.  Ciillen 

428 

1778, 1790 

Grafton  Bank  v.  Doe 

729 

Graff,  in  re 

885  6 

Graffam  v.  Burgess 

1915 

V.  Pierce 

1897  a 

Graham  v.  Anderson 

500,  1921 

V.  Berryraan 

1464 

V.  Bleakie 

1449, 

1575, 1587, 

1643,  1644,  1646.  1648 
r.  Carter  1414,1418 

V.  Fireman's  Ins.  Co.  406 

V.  Fitts  1837 

V.  Fountain  956 

V.  Graham  294,  339 

V.  Holt  90 

V.  Jones  1701  a 

V.  King  1467,  1862 

V.  Linden  893,  894,  1088 

V.  McCampbell  173 

V.  Myers  110 

V.  Nat.  Bank  134 

V.  Nesmith  586 

V.  Newman  817 

V.  Stevens  317 

V.  Stewart  1462 

V.  Vining  1214 

Grain  v.  Aldrich  1385 

Grand  Forks  Nat.  Bank  v.  Elevator 

Co.  151 

Grand  Order  of  0.  F.  v.  Merklin  639 

Grandin  v.  Anderson  524 

Granger  v.  Crouch  607 

Granger's  Asso.  v.  Clark  1606 

Grant  v.  Bissett  525 

V.  Burr  20,  1203,  1207,  1725, 

1769 

V.  Dodge  468,  470,  473 

V.  Duane  1055,  1059,  1069,  1399 

V.  Fowler  1144 

V.  Gal  way  1284,  1293 

V.  Insurance  Co.  670 

U.Ludlow  874,  883a,  1187 

V.  Parsons  1087,  1436 

V.  Phoenix  Ins.  Co.    1516,  1521,  1600 

u.  Tallman  1506 

V.  U.  S.  Bank  537,  1082 

V.  Vandercook  1475 

Grantham  v.  Hawley  150 

V.  Lucas  1516 

Grapcngether  r.  Fejervary    822,  1678,  1700 

Crassly  t:  Reinback  838 

842 


Grattan  v.  Wiggins  822, 1074,  1146,  1181, 

1388,  1459,  1509,  1577,  1700, 

1701  a,  1702 

Grave  v.  Bunch  1629 

Graves  v.  Braden  666 

v.  Campbell  626 

r.  Fritz  1638 

i;.  Hampden  F.  Ins.  Co.      409,1136 

V.  Hydraulic  Co.  127 

Gray  v.  Barton  613 

V.  Brignardello  1587,  1662 

V.  Briscoe  1141 

V.  Case  681  u 

V.  Federal  Bank  1342 

r.  Franks  679 

V.  Givens  1211 

V.  Havemeyer  1606 

V.  Helm  373 

V.  Jenks  719,  889 

r.  Nelson  870,1118 

V.  Patton  463 

V.  Schenck  828 

V.  Shaw  1854,  1857,  1859 

V.  Shelby            258,  263,  265,  274,  275 

V.  Smith  136 

V.  Stiver  66 

V.  Van  Blarcom  642 

V.  Veirs  1614 

Graydon  v.  Church  881 

Great  Falls  Co.  v.  Worster     42,  594,  675  a, 

699 

Green  v.  xVrnold  706 

V.  Betts  229,  236 

V.  Butler  711,  977,  1046 

V.  Corson  1669  « 

y.  Crockett  1552,1573 
V.  Cross              950,1144,  1146,  1241, 
1249,  1269,  1278,  1825 

V.  Currier  848 

V.  Davis  1243 

V.  Dixon  1048,  1074,  1105, 
1128,  1395,  1406,  1412 

V.  Drinker  488 

V.  Englemann  1807 

v.  Fry  917 

V.  Garrington  517,  518 

V.  Gaston  1773 

V.  Green  556 

V.  Harris  1094 

V.  Halt  813,  817,  837 

V.  Houston  177,  744 

V.  Kemp  644,  702 

y.  Lamb  1132 

V.  Marble  1372 

?^  Mizelle  1193 

V.  Morgan  546 

r.  Nicholls  1173 

v.  Pettingill  1241,1254 

V.  Phillips  444 

r.  Kamage  725,1621 

V.  Rick  583 

r.  Scranage  114,1492 

V.  Sherrod  310 

V.  Slavter  578,  584 

V.  Stobo  1051  r 


TABLE   OF  CASES. 


References  are  to  Sections. 


Green  v.  Storm  917 

t;.  Tanner  1081 

V.  Tantum  627 

V.  Turner  295,  736,  1146,  1152, 

1159, 1207 

i;.  Wescott       1111,1128,1139,1140 

V.  Witherspoon  489 

V.  Wjnn  1068 

Greenbaum  v.  Austrian  872 

Greene  v.  Conant  84 

V.  Cook  218 

V.  Deal  534 

V.  Doane  1069,  1334 

V.  Harris  1094 

V.  Tvler  644,  912,  1493 

V.  Warnick  534,  844  a,  845 

Greenemeyer  v.  Deppe  1545 

Greenleaf  v.  Edes  464 

V.  Queen  1790 

Greenman  v.  Pattison  1181 

Gi'eeno  v.  Barnard  473 

Greenpoint  Sugar  Co.  v.  Whitin  124 

Greensdale  v.  Dare  604 

Greenwell  r.  Heritage  879,  1897  a 

Greenwood  v.  Jenswold  520 

V.  Murdock  142 

Greer  v.  Chester  877 

V.  Higgins  544,  586 

17,  Turner  664,892,899,1114, 

1120, 1123 

Gregg  u.Hight  1805,1811 

Gregory  r.  Campbell  1467,  1616 

V.  Clarke  1849 

V.  Gregory  39 

V.  Hartlev  769,  1472 

V.  Keating  1439 

r.  Marks  351,1179,1228 

V.  Perkins  513 

V.  Purdue  1616 

V.  Kosenkrans  697,  1658 

V.  Savage  553 

V.  Thomas      874  c,  924,  927  a,  929 

Greig  i\  Smith  113,906 

Greiner  v.  Greiner  614 

Greither  r.  Alexander  736,744,1494 

Grellet  v.  Heilshorn  456,  511,  513,  848 

Gresham  y.  Tlosenkrans  697,  1658 

V.  Ware  848,  1629,  1630 

Grcsewold  v.  Marshan  1624 

Grether  r.  Clark  1202.1211 

Greve  v.  Coflin  808 

Greville  I'.  Fleming  1519 

Grevr.  Grev  913 

Gribljen  r.  Maxwell  1807/- 

(jriiler  v.  Driver  639 

Gridley  v.  Barnes  1207 

Griesl)aum  v.  Bauni  1545 

Griffin  v.  Burtnttt  370 

V.  Cranston  353 

V.  Griffin  186,  662 

V.  Johnson  102 

V.  Lovell  889 

V.  Marine  Co.    1 46,  1863,1874,1 876, 

1 883 

V.  N.  J.  Oil  Co.  372,  374,  1493 


Griffin  v.  Reis 

V.  Sheffield 
V.  Thompson 

Griffith  V.  Griffith 
V.  Hadley 
V.  Robertson 

Griffiths,  re 

Grigby  v.  Cox 

Grigg  V.  Banks 


1619 
493 
1709  « 
571 
1672,  1675 
824 
381 
107 
664, 1080 


Griggs  V.  Detroit  &  M.  Ry.  Co.  921 

Griggsby  v.  Hair  1701 

Grimbail  v.  Mastin  610 

Grimes  v.  Doe  702 

V.  Kimball     465,  913,  926,  966,  967, 

969,  1295,  1299 

V.  Rose  151 

Grimstone  v.  Carter  511,  586,  587 

Grinir's  Appeal  885  « 

Grissler  v.  Powers  1485,  1491 

Griswold  V.  Barker  1489 

r.  Fowler  1617,1858 

V.  Griswold  974 

I'.  Mather  22,  1569 

I'.  Miller  1411 

V.  Taylor  1606  a 

Grob  V.  Cushman  1333 

Groce  v.  Jenkins  750 

Grocers'  Bank  v.  Neet  844  a 

V.  Peufield  461 

Groesbeck  v.  Mattison  727,  743 

Groff  r.  Morehouse  1751 

V.  National  Bank  1343 

V.  Ramsey  586 

Gronfier  v.  Minturu  1606  a 

Grooms  v.  Rust  316 

Gross  V.  Jancsok  1910 

V.  McKee  624 

Gro.svenor  v.  Atlantic  F.  Ins.  Co.  406, 

407,  408 

v.  Dav       1223,1351,1678,1751 

Groton  Sav.  Bank  v.  Batty      .339,  597,  601 

Grove  r.  Miles  218,228 

V.  Todd  495 

V.  Znmhro  495 

Grove  Build.  Asso.  v.  Parsons  574 

G rover  i-.  Five  866,  889 

V.  Fox  1048,  1742,  1857,  189.5, 

1906 

V.  Hale  1898 

V.  Thatcher  811,  848,  868,  981 

Grow  V.  Garlock  1351 

Growuing  v.  Behn  493 

Grubhs  V.  Wy.sors  230,  232 

Grubcr  v.  Bnker  339 

Grugeon  v.  Gerrard  1113,  14.50,  1799 

Grassy  »•.  Schneider  896,  901 

Guarantee  Deposit  Co.  v.  Jenkins  1617 

V.  Powell  1355 

Gubbings  v.  Harjier  248 

Guckian  r.  Uiley  877 

Gudgert'.  B;unes  233,  1148 

CJueriii  v.  Dniiforth  1331 

(iiierui^ev  v.  Kendall  736,  738 

'   *•.  Wilson,  428,  433 

Guesnard  v.  Soulie  lOOS 

843 


TABLE   OF   CASES. 


References  are  to  Sections. 


Guest  V.  B}ington 

1335, 

1511 

Haescig  v.  Brown 

788, 

804,  813,  962 

Guggenheimer  r.  Geiszler 

634,  642 

,  643 

Haffley  v.  Maier 

20,  1395 

V.  Say  re 

1439 

Hafter  v.  Strange 

597 

Guild  V.  Butler 

742 

Hagan  v.  Parsons 

1200,  1207 

Guinu  V.  Locke 

315 

,  332 

V.  Walker 

1439, 1609 

V.  Spurgin 

468 

Hag 

\r  V.  Brainerd 

54,  136,  687 

Guion  r.  Knapp                573, 

722,  723 

982, 

Hag 

3r  V.  Blake 

653 

1621, 

1631 

V.  Specfc 

523 

Guiteau  v.  Wisely 

465 

Hagerman  v.  Ohio  Bui 

Id.  Asso.       638,  835 

Gulley  V.  Macy 

513 

V.  Sutton 

113, 

814,  817,  834, 

V.  Thurston 

463 

964 

Gum  V.  Equitable  Trust  Co. 

591 

Hag 

'•erson  v.  Phillips 

1808 

Gundormau  v.  Gunnison 

176 

Haggerty  v.  Allaire  W 

orks 

649 

Gunel  V.  Cue 

384 

V.  Byrne 

8 

■0,  1483,  1656 

Gunn's  Appeal 

244 

V.  McCanna 

969 

Gunn  V.  Brantley 

1144 

Hagthorp  v.  Hook 

271,  1173 

V.  Jones 

352 

Hag 

Lie  V.  Jackson 

1439,  1575 

V.  Wades 

15S8 

V.  West  Hobok 

3n 

707 

Gunnell  v.  Cockerill 

1913 

Hah 

1  V.  Behrman 

1620,  1621 

Gunnison  v.  Gregg 

644, 

1493 

V.  Pin  dell 

1829 

Gunst  V.  Pelham 

768 

Haile  v.  Nichols 

744 

Gunter  v.  Gunter 

857 

Haines  v.  Beach 

1064,  1396 

V.  Jones 

1880 

V.  O'Couner 

332 

Gushee  v.  Union  Knife  Co. 

1573 

r.  Pohlmann 

964,  964  a 

Gustav.  Adolpli.  Asso.  v.  Kralz          1 

777  b, 

V.  Taylor 

1676 

1831 

V.  Thomson 

246 

248,  262,  355 

Guthrie  v.  Jones 

441 

Hail 

stou  V.  Ward 

1825 

V.  Kahle 

244.  3K 

,  691 

Hale 

ane  v.  Sweet 

1709  /; 

V.  Sorrell 

1099 

Hale 

enbv  V.  Spofforth 

129 

Gutzeit  V.  Peunie 

1404 

Halderman  v.  Woodward 

1225 

Guy  V.  Carriere 

473 

Hale 

r.  Baker 

217,  224 

V.  Du  Uprey 

970 

V.  Clauson 

1637 

r.  Franklin                    1141,1324, 

1467 

V.  Frost 

160 

V.  Ide 

1521, 

1522 

V.  Gouverneur 

76 

Gwathnaeys  v.  Ragland 

607, 

1699 

V.  Hale 

652 

Gwinn  i'.  Simes 

623 

V.  Mechanics'  Ins 

.Co. 

406,  413  a 

V.  Whitaker 

907 

V.  Morgan 

987 

Gwynn  v.  Gwynu 

113 

V.  Omaha  Nat.  Bank 

461 

V.  Turner 

520 

V.  Pack  ■ 

1174,  1197 

Gyles  V.  Hall                    892, 

897,  899, 

1088 

?».  Pat  ton 

897,1185 

Haley  v.  Bagley 

98 

V.  Hammersley 

450 

H. 

Hali 

V.  Young 
ng  V.  Eddy 

1262 
177 

Haake,  in  re 

372 

Hall 

V.  Arnold 

710 

Haaren  v.  Lyons 

1426 

V.  Arnott        288, 

324,  3 

25,  326,  342  c, 

Haas  V.  Chicago  Build.  Soc. 

1521, 

1526 

1145, 1324 

r.  Nanert 

335 

V.  Bamber 

1351,  1458 

Habenicht  v.  Rawls 

113 

V.  Bell 

716,  1305 

Habersham  v.  Bond 

1687 

V.  Bliss          1793 

a,  1883 

a,  1892,  1897 

Hackenhull  v.  Westbrook 

1331 

V.  Byrne 

1333 

Hackett  v.  Buck 

665 

V.  Click 

229 

V.  Callender 

462,  467 

V.  Conn.  Mut.  L. 

Ins.  Co.                1800 

V.  Keynolds 

186 

V.  Corcoran 

623 

V.  Snow 

1516, 

1531 

V.  Crouse 

368,  375,376 

Hackinth  r.  Daniron 

586 

V.  Cushnian 

726, 

801,  881,  1825 

Haden  v.  Buddcnsick 

610 

V.  Denckla 

1144 

Hadtield  v.  Bartlett 

1801 

V.  Edwards 

530, 

722,  7i3, 1631 

Hadley  v.  Cha]3in 

920, 

1469 

V.  Erwiu 

1485 

V.  Hadley 

702 

1303 

V.  Gale 

15(13 

V.  Houghton 

1244 

V.  Gardner 

1112 

V.  Nash 

219,  229 

V.  Gould 

358,  1395 

V.  N.  H.  F.  Ins.  Co. 

408 

V.  Hall 

163,  5 

56, 1395, 1439 

V.  Stewart 

1128 

V.  Harrington 

865 

Iladlock  V.  Bnlfinch 

924 

V.  Heydou 

627 

844 

TABLE   OF   CASES. 


References  are  to  Sections. 


Hall  V.  Hopkins 
V.  Hiiggins 
V.  Hurd 
V.  Klepzig 
V.  Lance 
V.  Leonard 
V.  Livingston 
V.  McDuff 
V.  Mobile  &  M. 

V.  Morgan 

r.  Nelson 
V.  Patterson 
V.  Savill 
V.  Shannon 
V.  Smith 
V.  Southwick 
V.  Sullivan  Ry 
V.  Surtees 
V.  Tay 
V.  Towne 
V.  Tufts 
V.  Tunnell 
V.  Van  Cleve 
r.  Waller 
V.  Way 
V.  Westcott 
V.  Yoell 

Halleck  v.  Guy 
V.  Moss 

Hallesy  v.  Jackson 

L'allman  v.  Hallman 

Halo  V.  Schick 

Halloway  v.  Platner 

Halpin  v.  Ins.  Co. 

Halsey  ;;.  Martin 
V.  Reed 


Halstead  v.  Bank 

r.  Lake  Co. 
Halsted  v.  Halsted 
Hamar  v.  Mcdsker 
Hambrick  v.  Jones 

V.  Mortg.  Co. 
V.  Russell 
Hambright  v.  Brockinan 
Hamet  v.  Dundass 
Hamilton  v.  Browning 
V.  Dobbs 
V.  Halpin 
V.  Huntley 


678 
1406 
990 
1414 
27,  664,  716 
63 
290,  346,  548 
183,  523 
Ry.  Co.  162,  220, 

221,  229,  670,  738 
748,  1090,  1091,  1620, 
1632 
1406,  1410,  1442 
500 
29,  265,  513 
526 
573 
945 
Co.  1443, 1547  a 

1194 
352,  365,  367  a 
1876 
352 
24,  508,  665,  667 
244 
292 
769 
1123  a,  1124 
1408 
1613 
1179  b 
1144 
1632 
250,  280 
489 
899,  901,  981 
255 
752,  755,  760,  878,  879, 
1380,  1625,  1711,  1713 
476,  530 


Hamlin  v.  Rogers 
Hammel  v.  Ins.  Co. 
Hamnierslcy  v.  Knowlys 
Hammond  v.  Barker 


1606 
408 
906 
874  c,  877,  966  a, 
967 
827 
244,315,  1159 
964  a,  1404,  1477 
351 
,  970 
761 
552, 589 
822, 1701  a 
68,  765,  824 
736, 744 
848,  860,  1369,  1439 
293,  335,  341,  1207 
65 
1895 
401 
.  141 


1462,  1464 

1688 

99 

949 

1893 

1384,  1440 

1849 

325 

804 

1066,  1086 

1782 

435,  439 

Jefierson  1353 

V.  Lubukee  826,  1674,  1787, 

1789,  1855,  1876,  1898,  1899, 

1922 

V.  Nutt  574,  579 

V.  Quimby  924,  936 

V.  Railway  Co.  1606 

V.  Royse  1621 

V.  State  1654 

V.  Van  Rensselaer  1141 

Hamilton  Build.  A.sso.  v.  Reynolds         360 

Hamlin  v.  Bevans  584 

V.  Parsons  143  ' 


I'.  Lewis 
Hammonds  v.  Hopkins 
Hammons  v.  Bigelow 
Hampden  Cotton  Mills  v.  Payson 
Hampton  v.  Nicholson 

V.  Phipps 
Hanbury  v.  Litchfield 
Hancock's  Appeal 
Hancock  v.  Carlton 
r.  Fleming 
I'.  Hancock 
V.  Harper 
r.  Watson 
V.  Why  bark 
Hancox  v.  Fishing  Ins.  Co. 
Hand  v.  Armstrong 
V.  Kennedy 
?.•.  Savannah  &  Charleston  R 

Co. 
V.  Startup 
Handy  v.  Commercial  Bank 

V.  Sibley 
Hauford  v.  Blessing 
V.  Fitch 
V.  Robertson 
Hanger  v.  State 
Hankins  v.  Rockford  Ins.  Co. 
Hankinson  v.  Barbour 
Hanks  v.  Greenvvade 
Hanlon  v.  Doherty 
Hanly  v.  Morse 
Hann  v.  De  Kater 
Hanna  v.  Shields 
V.  Wilson 
Hannah  v.  Carrin_ 
V.  Davis 
V.  Dorrell 
Hannan  v.  Ilannan 
H.innay  v.  Thompson 
Hannon  v.  Hilliard 
H annum  v.  Wallace 


R. 


473 
609 
934 

1592 
261,  262,  266,  277 

1150 


non 


1591 

1698 

422 

548,  552 

1337 

294,848,  871,  873,  876 

586,  589 

634 

1503 

924,  1204 

1790 

1114,  1549,  1807  a 

1619 

612,  1296,  1297 

316 

1462 

889 

Hanover  i\  Ins.  Co.  v.  Connor  422 

Hansard  v.  Hardy        827,  1166,  1169,  1566 
Hansford  v.  Holdam 
Hanson,  ex  parte 
Hanson  v.  l3unton 
V.  Preston 
Hapgood  V.  Blood 

V.  Marlowe 
Harang  v.  Plattsmier 
Harbach  v.  Colvin 
Harbcrt's  Case 
Harbison  v.  Houghton 

V.  Lemon 
Hardesty  v.  Jones 
Hardin  v.  Boyd 
V.  Frames 

V.  Hardin  50,  771 

V.  Harrington 
V.  Hyde 

845 


1374,  1475 

1496 

1459 

1099 

35,  687,  694 

116 

525 

964 

1621 

273,  1499 

244,  294 

842 

218,  881. 

331,  833 

772,  1.522 

556, 559 

575, 744,  1494 


TABLE   OF   CASES. 


References  are  to  Sections. 


Hardin  v.  Iowa  Ry.  &c.  Co.  682 

Harding  v.  Allen  458 

V.  Bank  90 

i\  Davies  1088 

V.  l)es  Moines  Nat.  Bank  94 

V.  Durand  1207 

V.  Harding  1642 

V.  Mill  River  Manuf.  Co.        1175, 

1187 

V.  Pingey  1095 

V.  Strong  66 

Hards  v.  Barton  1590 

V.  Conn.  Mut.  L,  Ins.  Co.  134  a, 

1411,    1586 

Hard  wick  v.  Bassett  1606  a,  1923  b 

Hardy  v.  Harbin  546 

V.  McClellan  1526 

V.  Miller  1606 

V.  Nelson  68 

V.  Reeves  1168 

Hargadine  v.  Henderson  630  a 

Hargreaves  v.  Rothwell  562,  564 

Harkey  v.  Cain  G5 

Harkins  v.  Forsyth  1218,  1563,  1586 

Harkrader  v.  Leiby  46 

Harlan  v.  Harlan  436,  444,  610 

V.  Miirrell  1454 

V.  Smith  1454,  1586 

Harland  v.  Bankers',  &c.  Tel.  Co.  1377 

Harlem  Coop.  BUlg  Asso.  v.  Quian    1434  a 

Harlem  Sav.  Bank  v.  Mickelsburgh         743 

Harlow  v.  Mister  1383 

V.  Thomas  735 

Harman  v.  Barhvdt  821 

V.  May '  287 

Harmer  v.  Priestly  890,  1113 

Harmon  v.  Magee  1 1 8,  900 

V.  Mycr  502 

V.  Short  38 

Harmony  Build.  Asso.  v.  Berger  429 

Harms  v.  Palmer  1051  c,  1577 

Haruickell  r.  Orndorff         1786,  1787,  1915 

Harnsberger  v.  Yancey  874 

Harp  V.  Calahan  20.  1207 

Harper's  Appeal     250,  312,  332,  374,  1117, 

1123  a,  1127,  1128,  1129 

Harper  r.  Barsh  494,1593 

i;.  Ely  27,653,716,1080,1111, 

"1123  a,  1132,  1134,  1135,  1137, 

1141, 1182  a,  1800, 1876 

V.  Hopkins  523 

V.  Tapley  510 

Harral  v.  Gray  464 

V.  Leverty  586 

Harralson  v.  Barrett  1594 

Harrill  v.  Stapletou  1116,1117 

Harrington  v.  Allen  525,  539,  557,  559 

V.  Christie  1175 

V.  Fitchburg  F.  Ins.  Co.       407, 

408 

V.  Former  168,  492 

V.  Slade  583,  1201 

V.  Upton  627 

Harris,  in  re  1838 

Harris  v.  Arnold  586,  588,  1632 

846 


[   453,  684 

987 

626 

1861 

817,  957,  966 

1659 

1658 

607,  1435 

446,  687 

906,  943,  1425,  1436, 

1442 

892,  893,  895,  901 

60 

218 

113,  842 

1597 

1334,  1577 

1876  a 

1194,  1207,  1297 

897,  1215 

991 

1204 


Harris  v.  Bannon 
V.  Boone 
V.  Carmody 
V.  Cailm 
V.  Cook 
V.  Foster 
V.  Frink 
V.  Harlan 
V.  Haynes 
V.  Hooper 

V.  Jex 
V.  Jones 
V.  King 
V.  MctJaslan 
I'.  McCrossen 
V.  Makepeace 
V.  Miller 
V.  Mills 
V.  Miilock 
V.  Swanson 
I'.  Vaughn 

Harrison  v.  Annapolis,  &c.  R.  R.  Co.    1740 

V.  Bank  335 

V.  Bisland  874  a,  877 

V.  Boring  547 

V.  Bray  1813 

V.  Biirlingame  964,  964  a 

V.  Cachelin  524 

t'.  Colton  623 

V.  Eldridge  973 

V.  Forth  557,  559,  573 

V.  Guerin  722,  1631 

■     V.  Harrison  1608 

t'.  Hollins  1154 

V.  Jackson  121 

V.  Johnson  913 

(•.  McMurrav  504,  526 

V.  N.  J.  R.  R.  &  T.  Co.     593,  913, 

927,  967 

V.  Phillips  Academy         244,  245, 

252,  514,  977 

V  Pike  1515 

U.Roberts  711,712,1876 

V.  Simons  1584,  1«08 

V.  Stewart  106 

V.  Styres  663 

V.  Wade  521 

r.  Wyse  1114,1118 

Harrold  v.  Simonds  504 

V.  Westbrook  112 

Harrow  v.  Johnson  728 

Harshaw  v.  McKesson  1580 

Harshey  v.  Blackmarr  95 

Hart  f.  Bovt  1196 

V.  Cai'frey  456 

V.  Carpenter  1502 

V.  Chalker  344,  513 

V.Chase  848,879,1118 

V.  Eastern  Union  Ry.  Co.  1225 

V.  Eppstein  265,  266,  277 

V.  Farmers'  &  M.  Bank  462,  466, 

514, 538 

f.  Giles  138  a 

v.  Goldsmith  1095,1105,1300 


TABLE   OF   CASES. 


References  are  to  Sections. 


Hart  V.  Hart 
V.  Lindsay 
V.  llespess 
V.  Sheldon 
V.  Ten  Eyck 
V.  Wi no-art 


97 

1663 

1521 

429, 431 

341,  1573 

1934 


Hartford  F.  Ins.  Co.  v.  Davenport  408 

V.  Olcott  408 

V.  Walsh  422 

Hartley's  Appeal  312,335 

Hartley  v.  Frosh  500 

I'.  Harrison  644,  676,  745 
763,  1494 

V.  Kirlin  383 

V.  O 'Flaherty  1621 
V.  Tatham             744,  746,  842,  889 
893,  901  a,  1450,  1491 

Hartman  v.  Clarke  1335,  1449 

V.  Ogborn  1355 

Plartox  V.  Tibbits  1478 

Harts  V.  Brown  131 

Hartshorn  v.  Hubbard  667,  668 

Hartshorne  v.  Hartshorne  751,  866 

Hartwell  r.  Blocker  683,  1378,  1460 

Haitz  I'.  Woods  953 

Harvey  v.  Foster  665 

V.  Harvey  1685 

V.  Kelly  221 

V.  Morris  236 

V.  Thornton  1414 

V.  Varney  630 

Harvie  v.  Banks  1134 

Harvill  f.  Lowe  219 

Harwell  v.  Lehman  1426 

Harwood  v.  Cox  1637,  1668 

V.  Marye  1414 

V.  Pearson  542 

V.  Railroad  Co.  1674 

Haseltine  v.  Espey  511,  513 

Hasewritter  v.  Kuchhoffer  744 

Haskell  v.  Bailey  1146,  1192,  1509 

V.  Bissell  509 

V.  Burdette  1466 

V.  Scott  116 

Haskill  V.  Sevier  85,  495 

Haskins  v.  Hawkcs  1054,  1101,  1248 

Haskit  V.  Eliott  113 

Hassam  i'.  Barrett  283,  300,  336 

Hasselman  t'.  McKernan  479,  139G 

IJassey  v.  Wilke  114,  574 

Hastings  v.  Cutler  488,  494,  538 

V.  Pratt  720,  1256 
V.  Westchester  Ins.  Co.     408,  413 

V.  Wiswall  652 

Hathaway  v.  Juneau  97 

v.  Lewis  1717 

Hatch  V.  Bigclow  591 

V.  Garza  1570 

V.  Haskins  508 

V.  Kimball  848,  869 

V.  Skelton  857 

V.  Svkca  1659 

V.  White  950,  9.52 

Hatcher  v.  Chaneev  1459 

V.  Hatcher  217,  226 


Hatcher  v.  Jones 
Hatfield  v.  Reynolds 
Hathway  v.  Hagan 
V.  Juneau 
V.  Lewis 
Hattier  v.  Etinaud 
Haiz's  Appeal 
Haubert  v.  Haworth 
Haugan  v.  Netland 
Haughwout  V.  Murphy 
Hauselt  v.  Patterson 
Haven  v.  Adams 


1233 

889,  864 

1479 

97 

1717 

1496 

951 

991 

1521 

55.5,  556,  584 

1717 

583,  779,  782, 1307 


V.  Boston  &  W.  R.  R.  Co.  779 

i\  Emery  158 

I'.  Grand  J.  R.  R.  Co.  1666 

Havens  v.  Jones  1396,  1499 

V.  Willis  883 

Hawes  v.  Dobbs  1 709  a 

V.  Rhoads  1469  a 

V.  Wiswell  591 

Hawhe  v.  Snydaker  647,  722 

Hawkes  v.  Brigham  1259 

V.  Dodge  Co.  Ins.  Co.  964  a 

V.  Pike  .501 

Hawkins  v.  Clermont  390 

V.  Files  465 

i;.  Hill  1458 

V.  Hudson  1876 

V.  May  382 

V.  McVae  955 

V.  I'earson  99,  1464 

V.  Pugh  83  a 

V.  Taylor  112,  957 

V.  Thurman  226 

Hawley  v.  Bennett  1647 

V.Bradford       114,666,1067,1693 

V.  Bullock  510,  546,  586 

Haworth  v.  Taylor  504,  508,  589 

Hawtry  v.  Butlin  441 

Hay  V.  Hill  508 

V.  StarF.  Ins.  Co.  418 

Hay's  Appeal  1637 

Hayden  v.  Burkemper  1658 

V.  Drury  710,  755,  764,  834 

V.  Smith  983,  1051  c 

V.  Snow        710,  738,  758,  763,  834, 

1709, 1711 

Hayes  v.  Dickinson  1235,  1536 

V.  Frey  1646  «,  1763,  1786 

V.  Lienlokken  960,  1902 

V.  Shattuck  1667,  1673 

V.  Ward  724 

V.  Woods  1940 

Haygood  w.  Marlowe  117 

liayner  v.  Kbcrluirdt  460 

Hayues  v.  Backman  1670,  1670« 

V.  Cox  1333,  1334 

V.  Meek  1667 

V.  Scachrest  606,  1371 

V.  Stevens  68 

V.  Swann    •  315 

V.  Thoni  886 

V.  Wellington  12.')0,  16.54 

Haynie  v.  Robertson  260,  265 

Ilaynsworth  v.  BisdiolT  459 

847 


TABLE   OF   CASES. 


References  are  to  Sections. 


Hays  V.  Carr 

261, 267 

V.  Hall 

176 

V.  Lewis 

145 

V.  Keger 

464 

I'.  Thomae 

1584,  1608 

Haj'ward  v.  N.  E.  Mut. 

F.  In 

^  Co.          399 

V.  Stearns 

1396,  1425 

Haywood  v.  Nooney' 

470, 472 

V.  Shaw 

560,  584 

Hayworth  v.  Worth  in  gton 

294 

Hazard  v.  Draper 

400 

V.  Hodges 

1676 

Hazeltinc  v.  Granger 

7 

19,  1522,  1526 

Hazlett  1-.  Sinclair 

574,  743 

Heacock  r.  Lubuke 

526 

V.  Swartwout 

336,  640 

Head  v.  Thompson 

746 

Headier  v.  Goundry 

974 

Heald  v.  Jardine 

1047  a 

V.  Wright 

293 

Healy  v.  O'Brien 

288,  342  c 

Heane  v.  Kogers 

603 

Heard  v.  Evans 

924 

V.  Mc  Kinney 

1404 

V.  Murray 

1526 

Heartt  i'.  Rhodes 

1141 

Heath's  Appeal 

332 

Heath  v.  Blake 

1610 

V.  Hall         1172 

,  1179 

1182  o,  1889, 
1937 

V.  Pratt 

1506  a 

V.  Second  Nat.  Bank 

134 

V.  Van  Cott 

112 

V.  West 

104,  848 

r.  Williams 

258 

277,  279,  294 

Heafcley  v.  Finster 

555 

Heaton  v.  Prather 

524, 

526,  530,  548, 

Heiutze  v.  Bentley 
Heirmanu  r.  Strifklin 
Heist  v.  Baker 
Heister  v.  Former 
V.  Maderia 
Heively  v.  ]\Iatteson 


579,  1897 
Heavilon  v.  Farmers'  Bank  1516,  1658 

Heberd  v.  Wines  464 

Hebeit  v.  Bulte  1742,  1829,  1895 

V.  Doussan  741 

Hebron  v.  Centre  Harbor  492 

Hebron  Society  v.  Schoen  1419 


Heburn  v.  Warner 


106,  109,  110,  111, 
1215 


9.52, 


Hecht  V.  Dettman 

?'.  Springstead 
Hedden  v.  Cowell 
V.  Overton 
Hedge  v.  Holmes 
Heermans  v.  Clarkson 
Heeter  v.  Glasgow 
Heffron  v.  Fiauigan 
Hefner  v.  Ins.  Co. 

V.  Urton  1396, 

Hegeman  v,  Johnson 
Held  I'.  Vreeland 
Heilbrun  v.  Hammond 
Heilmann  r.  Westchester  Ins.  Co 
Heim  r.  Vogel 
Heimberger  v.  Boyd 
Heimstreet  v.  Winnie  1395,  1425. 

Heinlin  v.  Castro 
Heinmiller  v.  Hatheway 

848 


1658 

1232 

967 

493 

1316 

965 

497,  500 

536,  679 

15S7,  1609 

1423,  1665 

1613 

749 

495,  787 

408 

758 

1052 

1439 

1509 

1742 


627 
303 
220 
462,  495,  515 
332 
924,  927 
HekelnkaMnper  i-.  German  Bld'g  Asso.  638 
Hekla  F.  Ins.  Co.  v.  Morrison  1445 

Helck  V.  Reinheimcr  1445,  1588 

Hele  t'.  Bexley  1120 

Helfenstein's  Estate  16 

Helfrich  v.  Weaver  1355 

Hellams  v.  Abercrombie  1472 

Hellawell  v.  Eastwood  429,  448 

Heller  v.  Crawford  623 

V.  Groves  113  a 

Hellver  v.  Baldwin  1350 

Helin  V.  Boyd  293,  329,  335 

I'.  Gilroy  444,  447 

V.  Yerger  1876 

Helmbold  ?;.  Man  936 

Helmer  v.  Krolick  834,  956 

Helmetag  v.  Frank  117,  924.  927  a 

Helms  V.  Chadbourne       325,  523,  547,  548, 

552,  583 

Helter  f.  Groves  113  n 

Hemenway  v.  Bassett  983 

Hemphill  v.  Giles  773,  777 

r.  Boss  45 

Hendee  r.  Pinkerton  125,  127,  128 

Hendershott  v.  Ping  924,  936,  1192 

Herderson  r.  Downing  466 

V.  Grammar  1425 

V.  Herrod  822,  1701  a 

V.  Lowry  1670 

r.  McGhee  522 

V.  Palmer  1333 

f.  Pilgrim  479,481.787 

r.  Truitt  1089,1090,1091 

Flendrick  v.  Foote  225,  229 

Hendrickson's  Appeal  463,  513 

Hendrickson  v.  Woollcv  538,  608 

Hendrix  r.  Am.  Mortg"  Co.  1521,  1526 

V.  Gore  374,  1498,  1512 

Hendry  v.  Quinan  1437 

Henkle  v.  Allstadt  1621 

Henley  v.  Hotaling  247,  258,  260,  261, 

262,  265,  269,  335 

Henn  v.  Conisby  964 

Hennessey  v.  Andrews  600 

Hennesy  v.  Farrell  57,  702,  715,  716 

Hennighausen  v.  Tischer  1496 

Henry,  re  181 

Henrv's  Case  1067 

Henry  v.  Bell  677,  1225 

V.  Carson  501 

V.  Confidence  Miu.  Co.       674,  1193, 

1204,  1205,  1207 

r.  Davis  244,  251,  268,  280,  340, 

10.39 

r.  Kaiman  555 

V.  Root  104 

V.  Smith  1436 

V.  Stevens  283 

I'.  Travellers'  Ins.  Co.  1385 


TABLE   OF   CASES. 


References  are  to  Sections. 


Henry  v.  Tiipper  388,  392,  395 

i\  Von  Brandeustein  431 

Henscliel  v.  Mamero  966 

Heiisel  V.  Loan  Asso.  83  a,  638 
Henshaw  t-.  Wells            51,  725,  776,  1521, 

1536 

Hensicker  v.  Lamborn  936 

Hensley  v.  Whiffin  1427 

Hepburn  r.  Griswold  901 

Herber  v.  Christopherson  1483 

Herbert  i'.  Hanrick  703 

V.  Mech.  B.  &  L.  Asso.                728 

Herdman  v.  Cooper  1051,  1333 

V.  Pace  106 

Herff  v.  Griggs  459,710 

Herkimer  v.  Rice  398 

Herman  v.  Deming  65,  489 

Hermans  r.  Fanning  889,  945,  1897  a 

Hernandez  v.  Drake  1835 

Herndon  f.  Gibson  1670  « 

r.  Kimball  488 

Herndt  f.  Porterfield  1202 

Hernoth  ?;.  Porterfield  1202 

Herren  v.  Clifford  1454 

Herring  v.  Neely  1449 

?;.  Railroad  Co.  1436  a 

V.  WoodhuU  794,  822 

Herrington  v.  Herrington  583 

V.  McColIum  1699,  1939 

Herron  i'.  Herron  294 

Hersey  v.  Turbett  583 

Hershee  v.  Hershey  609 

Hershey  v.  Dennis  1720 

V.  Hershey  1335 

v.  Luce  263 

Hervey  r.  Krost  1051,1051c 

V.  Savery  97 

r.  Smith  592 

Hess  V.  Clark  460 

w.  Dean  1849,1862 

V.  Pinal  1496 

Hetfield  v.  Newton  1494 

Heth  V.  Cocke  1421 

Hetherington  v.  Clark  520,  550 

Hetzell  V.  Barber  896 

Heuisler  v.  Nickum  469,  470,  472 

Hewell  i\  Coulbourn  805 

Hewes  v.  Bickford  697 

V.  Wiswell  590 

Hewett,  in  re  181 

Hewitt  V.  Cox  G66,  1067,  1693 

V.  Dean      359,  1179  h,  1182,  1182  a, 

1G06 

V.  Loosemore  565,  566,  571,  572, 

588 

V.  Montclair  Ry.  Co.         1350,  1442 

V.  Nanson  1572 

i;.  Nortlirup  1231 

r.  Rankin  119,123,710 

V.  Temjikton  936 

Hey  V.  Schooley  1675 

lleydor  v.  Kxcelsior  Loan  Asso.       966,  967 

Ileydle  v.  Hazlehurst  1594 

Heyeri;.  Deaves  1608,  1633 

V.  Pruyn  1201,  1202,  1204 

VOL.    11.  54 


Heyman  v.  Babcock 
V.  Beringer 
V.  Lowell 
Heyward  v.  Judd 
Hiatt  V.  Goblt 
V.  Parker 
V.  Renk 
Hibberd  v.  Bovier 
Hihblewhite  v.  M'Morine 
Hibernia  Soc.  v.  Herbert 

V.  Wackenrender 
Hichens  v.  Kelly 
Hickey  v.  Bebrens 
V.  Richards 
Hicklin  v.  Marco 


Hickman  v.  Perrin 
V.  Quinn 
Hickox  V.  Lowe 


1667 

964  a 

1402,  1442 

1051,  1548 

1454 

388 

1465 

465 

90 

1404,  1414 

1414 

1384 

1849 

787 

1097,  1098,  1100,  1126, 

1128, 1490 

508, 524 

315 

70,  72,  261,  278, 

279 

Hicks  V.  Bingham  907, 1093 

V.  Farmers'  Ins.  Co.  422 

y.  Hicks  264,711 

V.  Jennings  1492,  1506 

I'.  McGarry  761  a 

Hicksville,  &c.  R.  R.  Co.  v.  Long  Isl. 

R.  R.  1496 

Hidden  y.  Jordan  331,1127 

V-  Kretzschnier  802 

Hiern  v.  Mill  571,  583 

Hiester  v.  Green  224 

V.  Maderia  268,  332,  341 

Higginbotham  v.  Barton  16,  777 

Higginbottom  v.  Benson  1902 

Higgins,  ex  parte  862 

Higgins  V.  Chamberlin  689 

V.  Scott  1203,  1204 

v.  AVe&t  1553 

r.  York  Build.  Co.  667,1120 

Higginson  v.  Mein  1194 

Higgs  V.  Hanson  1382 

Highara  v.  Harris  743 

?7.  Vanosdol  610 

Highs  tone  v.  Franks  1193 

Higman  v.  Stewart  761  a,  1481 

Hile  V.  Davison  1502 

Hiles  y.  Coult  1621 

V.  Moore  1523,  1525 

Hill  V.  Ahern  627 

V.  Bank  429,  444 

V.  Banks  344,  351 

V.  Beebe  924,  927  a 

V.  Butler  1502 

V.  Edmunds  1099,  1422 

V.  Edwards  244,  254,  264,  808 

t'.  Kldrcd  176,358 

v.  Grant  241,  268 

V.  Grigsby  217 

u.  Gwin  144,675  0,693 

V.  Henry  1 174 

V.  Helton  950 

f.  Hewett  1118 

V.  Hill  1565 

V.  Hoolc  842 

V.  Hoover  1670,  1675 

849 


TABLE    OF   CASES. 


References  are  to  Sections. 


Hill  I'.  Howell  1627,1631 

V.  Johnston  1093 

V.  La  Crosse  &  M.  R.  R.  Co.  155 

V.  McCarter  523,  530,  1621 

V.  McNichol         515,  538,  540,  557,  559 

V.  Meeker  1482 

V.  Minor  865 

V.  More  394,  808,  812,  1260,  1266 

V.  Murray  552 

.?;.  National  Bank  447,  1609,  1618 

.V.  Payson  673,  1052,  1093 

v.  Pixlev  848,  852 

.V.  Reif snider  1808 

.V.  Robertson  38,  607 

V.  Sewald  432 

V.  Smith  1229 

V.  Townley  358,  1414 

V.  Wcutworth  429,  442,  446 

V.  West  679.  972 

V.  White  1064 

Hillary  y.  Waller  1195 

Hillhouse  v.  Dunning  265 

Hilliard  i-.  Allen  1118 

Hillman  v.  Stumph  990 

Hills  V.  Eliot  707 

r.  Loomis  317,339 

Hilton's  Appeal  478 

Hilton  V.  Bissell  743,1887 

V.  Catherwood  941 

V.  Lothrop  1098,  1099,  1100 

V.  Otoe  Co.  Nat.  Bank  1710 

Hinchman  v.  Emans  848 

V.  Stiles  666,  1421,  1693 

V.  Town  531 

Hind  r.  Poole  1790 

Hinds  V.  Allen  1355 

V.  Ballon         468,  808,  812,  848,  859, 

869 

v.  Mooers  822,1699,1700 

V.  Pugh  460 

Hlne  V.  Dodd  548 

V.  Robbing  517 

Hines  v.  Perkins  217,  226 

Hiukley  v.  Wheelwright  711 

Hinson  v.  Adrian  1395 

?;.  Brooks  1805 

V.  Partee  250,  315 

Hinton  v.  Leigh  539 

V.  Pritchard  310,  335 

Hipp  V.  Huchett  1600,  1780 

Hippee  v.  Pond  959,  964 

Hippesley  v.  Spencer  684 

Hirsch  v.  Livingston  1645 

Hiscock  t'.  Phelps  119,120 

Hitchcock  iJ.  P'ortier  679,  1121,  1656 

V.  Harrington  666,  701 

V.  Merrick        77,  359,  790  a,  805, 

1606  a 

V.  U.  S.  Bank  1322,  1542 

Hitchman  v.  Walton  455 

Hitt  V.  Holliday  1069 

Hitz  i;.  Jenks  110,465,1521 

Hoadley  v.  Had  ley  84,  501 

Hoag  V.  Howard  464 

v.  Parr  897 

850 


Hoag  V.  Rathbun 
V.  Sayre 
V.  Starr 
Hoagland  v.  Way 
Hoare  v.  Peck 
Hobart  v.  Abbot 

V.  Sanborn 
Hobbs  V.  Fuller 

V.  Lippincott 
Hobgood  V.  Schuler 
Hobson  V.  Boll 

V.  Edwards 
V.  Hobson 
.   V.  Roles 
Hochgraef  I'.  Hendrie 
Hockenhull  v.  Oliver 
Hocker  v.  Reas 
Hockley  v.  Bantock 
Hodgdon  v.  Davis 

V.  Heidman 
V.  Naglee 
V.  Shannon 
Hodge's  Appeal 
Hodge  V.  Amerman 
V.  Brown 
V.  Weeks 
Hodgen  i-.  Guttery 


888 

465 

926 

1600 

1173 

1100,  1374 

42,  1289 

1257, 1271 

1602 

877 

1867 

229 

112, 114 


1653 

458 

1077 

183 

634,  1182«,  1352 

1414 

956,  1620 

70,353,  1241 

1701  a 

586,  587 

633 

260,314,  316 

475,  527,  1048,  1064, 

1395 

Hodges  2;.  Gill  1792 

V.  Taylor  1222 

V.  Tenn.  Ins.  Co.  309,  398,  423 

Hodgkins  v.  Montgomery  Co.  560 

Hodgman  v.  Hitchcock  926,  948 

Hodgson  V.  Bell  769 

I'.  Butts  494 

V.  Shaw  882 

V.  Wood  769 

Hodle  f.  Healey  1166,1172 

Hodson  V.  Treat  676,  1048,  1395,  1406. 

1412,  1654 
Hoeffler  v.  Westcott  1484 

Hoes  V.  Boyer  474,  1465,  1473 

Hoffs  Appeal  752,  762 

Hoff  V.  Burd  136,  1483 

Hoffiicker  v.  Bank  956 

Hoffman  v.  Anthony  1829,  1840,  1843, 

1844 

V.  Blume  597 

V.  Burke  1612 

r.  Harrington  36,808,1114,1195, 

1889,  1902,  1922 

r.  Mackall  62,  281,  506 

V.  Risk  878 

y.  Ryan  244,265,266,271, 

274,319,  328 

V.  Strohecker  555 

Hogarty  v.  Lvnch  326,  335 

Hogel  V.  Lindell  282,  304 

Hogg  V.  Longstreth  1080 

Hogle  V.  Lowe  119 

Hogsett  V.  Ellis  778 

Hoile  V.  Bailey  162,  167,  265,  320,  332 

Hoit  V.  Russell        89,  500,  559,  1801,  1876, 

1879,  1898 
Hoitt  V.  Webb  787 


TABLE    OF   CASES. 


References  are  to  Sections. 


Holbrook  v.  Am.  F.  Ins.  Co.  418,  423, 

1496 

V.  Bliss        1276,  1277,  1296,  1313 

r.  Chamberlin  121,127,441 

V.  Colburn  842 

V.  Diukenson  527 

V.  Thomas  12G2 

V.  Worcester  Bank  500, 1084 

Holcomb  V.  Campbell  917 

r.  Holcomb  1410,  1589, 1636, 

1666 

Holcombe  v.  Richards  1786 

Holdenr.  Dunn  740,  1584,  1693 

V.  Garrett  464,  465 

r.  Gilbert  1180,1496 

y.  Pike  848,1621 

V.  Sackett  1646,  1654,  1662 

V.  Stickney  1774,  1775 

V.  Trust  Co.  1 141 

Holdridge  v.  Sweet  1377,  1427 

Holdsworth  v.  Shannon  1675, 1915 

Holladav  v.  Holladay  644 

Holland' r.  Baker  1099,1398 

V.  Citizens'  Sav.  Bank  1086, 

1797,  1801,  1802,  1804 

V.  Cruft  799 

V.  Hodgson  444,  448,  455,  688 

V  Holland  1420 

V.  Sampson  1179  6,  1182  a 

Holland  Trust  Co.  v.  Hogan         1636,  1668 

Hollenback  v.  Shover  966,  969 

Hollenbeck  v.  Donnell         1.521,  1522,  1530 

V.  Stearns  964 

HoUiday  v.  Arthur  250,  295 

V.  Cromwell  488 

V.  Franklin  Bank        465,  474,  539 

Holliger  v.  Bates  1427 

HoUingsworth  v.  Detroit         651,  653,  1141 

V.  Koon  1107,  1111 

Hollis  V.  Hollis  1240 

V.  Smith  1545 

HoUisteri;.  Dillon  653,1229 

V.  York  1198 

Holly  Manuf.  Co.  v.  Water  Co.       429,  436, 

438 
Holm  V.  Wust  148 

Holman  v.  Bailey  886,  889,  892, 946, 

1093 
V.Patterson  218,538 

Holmes  v.  Abrahams  65 

r.  Bell  1519 

V.  Buckner  467 

r.  By  bee  1396 

f.  Drew  399 

V.  French  1280,  1309 

V.  Fresh  266,  276,  335 

V.  Gardner  827  a 

V.  Grant  258,  262,  206,  272, 

309, 335 
V.  Holmes  332,  266,  901 

V.  Matthews  281 

V.  McGitny  817 

V.Morse  681,1127 

V.  Powell  586 

V.  Rhodes  769 


Holmes  v.  Stout         548,  557,  586,  591,  593 

V.  Taylor  1334,  1444 

V.  Turner's  Falls  Co.         703,  789, 

1211  a,  1295,  1295  a,  1787, 

1857, 1902 

Holridge  i'.  Gillespie  1039,  1046 

Holroyd  i-.  Marshall  152 

Holt  V.  Babcock  697 

V.  Baker  605,  877  a 

V.  Creamer  627 

V.  Rees  783,  1106 

Holten  V.  Lake  Co.  877 

Holthausen,  ex /)arte  184 

Holton  V.  Bowman  1118 

r.  Meighen  264,279,1146 

Homan  v.  Hellman  1600 

Home  Building  Asso.  v.  Clark  539 

Home  Ins.  Co.  v.  Jones  1642,  1644 

V.  Marshall  41 1 

Home  Nat.  Bank  v.  Waterman  742 

Homer  v.  Sav.  Bank  387 

V.  Sohonfeld  1618 

Homoeopathic  Mut.  L.  Ins.  Co.  v. 

Marshall  106,  497,  500,  874 

HomcEopathic  Mut.  L.  Ins.  Co.  v. 

Sixbury  1425 

Honaker  v.  Shough  1678,  1768 

Hone  V.  Fisher  678,  807,  1540 

Honors  v.  Hutchings  244,  265,  273 

V.  Ins.  Co.  397,  420 

V.  Lamar  F.  Ins.  Co.  418,  420 

V.  Wilshire  1333 

Hood  V.  Adams  769,  953,  1879,  1892, 

1903,  1906,  1914,  1920 

V.  Brown  99,  503 

u.  Easton  1125 

V.  Fahnestock  557,  562,  589 

V.  Phillips  857 

Hoodless  V.  Reid  1181,  1182a,  1821, 

1915 

Hoogland  v.  Watt  1421 

Hooker  v.  Austin  1809,  1813 

V.  Olmstead  729 

Hooks  V.  Brown  1 1 7 

Hoole  V.  Att'y-General  583 

Hooper,  ex  parte  181,  183,  947 

Hooper  i'.  Henry  848 

V.  Stump  17776, 1723 o 

V.  Wilson  54,  669 

Hoopeston  Build.  Asso.  v.  Green  489 

Hoopes  V.  Bailey  267,  269,  326,  1095 

Hoover  v.  Johnson  1051 

J'.  Wheeler  609 

Hope  V.  Liddell  578 

Ilojje  F.  Ins.  Co.  v.  Cambrelling  565 

Hopewell  Mills  v.  Taunton  Sav. 

Bank  429,  444,  449 

Hopkins  y.  Crittenden  74,1141 

V.  Ensign  1677 

V.  Frey  1442  (i 

V.  Garrard  597 

V.  Hopkins  1401 

V.  Stephenson  1127 

V.  Ward  1435 

t;.  Wiard  1616 

851 


TABLE   OF   CASES. 


References  are  to  Sections. 


Hopkins  v.  Wolley  1621 

Hopkins  Manuf.  Co.  v.  Aurora  F.&  M. 

Ins.  Co.  408,  422 

Hopkinson  v.  Rolt  365,  371 

Hopper  V.  Jones  288,  335 

V.  Parkinson  473 

Hoppes  V.  Hoppes  1629 

Hoppin  V.  Doty  547,  587,  1048 

Hoppock  V.  Conklin  1675 

i".  Johnson  563 

V.  Ramsey  848,  870,  1439 

Hopson  0.  Mtna  Axle  Co.  1377 

Horbach  v.  Hill  258,  260,  285 

Hord  V.  James  1554 

Horlock  V.  Smith  1139,  1140 

Hormann  v.  Hodges  1765 

Horn  V.  Bank  1051  c 

V.  Bennett  1699 

V.  Indianapolis  Nat.  Bank  1096, 

1334 
V.  Keteltas        265,  272,  279,  309,  322, 

340 

u.  Volcano  Water  Co.  1663 

Hornaker  v.  Shough  1902 

Hornbeck  i'.  Mut.  Bldg.  Asso.  500 

Hornby  v.  Cramer  1087,  1751,  1845, 

1850,  1854 

V.  Matcham  11236 

Horner  v.  Corning  1616 

V.  Webster  614 

V.  Zimmerman  1545,  1587 

Horrigan  v.  Wellmuth  1080,  1134 

Horsey  y.  Hough  1641,1866,1915 

Horsley  v.  Garth  504,  508,  510 

V.  Hilburn  679 

Horstman  v.  Gerker  791,  831,  834,  842 

Horton  v.  Cutler  1008 

V.  Davis  744,  1491 

V.  Ingersoll  714,  1440 

V.  Kelly  1 632 

Hosford  17.  Johnson  1070,  1075,  1084, 

1129,  1135,  1425 

W.Nichols  661,663,1511 

Hosie  V.  Gray  1180,  1355 

Hoskin  v.  Woodward  429,  453,  687 

Hoskins  v.  Wall  220 

Hosmer  v.  Campbell  1621,  1624,  1857, 

1898 

V.  Carter  137 

V.  Sargent  1873,  1874 

Hospes  V.  Almstedt  848,  870 

Hostetter  v.  Alexander  791,  838 

Hotchkiss  V.  Clifton  Air  Cure  1439, 

1672, 1683 
Hotel  Co.  V.  Wade  127,  643 

Hottenstein  v.  Lerch  546,  587 

Houbie  v.  Volkening  893,  897 

Houck  V.  Adams  1145 

Houfes  V.  Schultze      84,  501,  503,  534,  535, 

566 
Hough  V.  Mtn&  L.  Ins.  Co.  874  a 

V.  Bailey  349,  1198,  1204,  1469 

V.Doyle  1181 

V.  Horsey  745,  1494 

V.  Osborne  822,  1699 

852 


Houghton  V.  Allen 

V.  Buruham 
V.  Mariner 

Hounshell  c.  Insurance  Co. 

Hourtienne  v.  Schnoor 

Houseman  v.  Bodine 


136 
508 
1412 
113 
500 
945 


V.  Girard  Loan  Asso.      560,  562 

Houser  v.  Lamont  244,  312,  323,  .331, 

339 

Houston  V.  Houston  469,  .536,  1621 

V.  Nord  1175,  1636,  1887 

Hovenden  v.  Knott  1589 

Hovey  v.  Blanchard  560 

V.  Hill  842 

How  V.  Vigures  1572 

Howard  v.  Ames  953,  1876,  1911 

V.  Bond  1666 

V.  Bugbee  1051 

i\  Chase  534,  575 

V.  Farley  652 

V.  Fulton  1838 

V.  Gresham  841,  889,  1331 

V.  Handy  1243,  1258,  1262 

V.  Harris  1041,  1063,  1067 

V.  Hatch  1751,  1838,  1893, 

1904 

V.  Hildreth  915,  1194,  1241 

V.  Houghton  702,  718 

V.  Howard  861,  889 

V.  North  874 

V.  Priest  123 

V.  Robinson  35 

V.  Ross  820 

V.  Schmidt  606,  1702 

Howard  F.  Ins.  Co.  v.  Bruner                  422 

Howard  Ins.  Co.  v.  Halsey      523,  530,  552, 

562,  574,  578,  723,  982,  1621,  1624 

Howard  Mut.  L.  Asso.  v.  Mclntyre        474, 

1292 

Howards  v.  Davis  1882 

Howe,  in  re  163 

Howe  V.  Austin  267 

i;.  Carpenter  320,332,342  a 

V.  Freeman  152 

V.  Hunt  776 

V.  Lemon  1591,  1709  a,  1718 

V.  Lewis  675,  889,  905 

V.  Powell  488 

V.  Russell  250,  298 

V.  Thayer  515,  520 

V.  Towner  1462 

V.  Wilder  355,  833,  1281 

Howel  V.  Price  3,  677 

Howell  V.  Brewer  465 

V.  Bush  926,  927  a 

V.  Griffith  103 

V.  Hister  1675,  1676 

r.  Howell  470 

V.  Leavitt  669 

V.  McCrie  83  a,  500 

V.  Mills  1670 

V.  Pool  1606,1876 

V.  Ripley  1516,  1524,  1536 

V.  Schenck  1658 

Howell  County  v.  Wheeler  950 


TABLE   OF   CASES. 


References  are  to  Sections. 


Howenstein  v.  Barnes 
Howland  v.  Blake 

V.  Shurtleff 


1606 

323,  335 

1144,  1194,  1195, 

1198 

Howze  V.  Dew  706 

Hoxie  V.  Carr  552,  555,  569,  709 

Hoy  V.  Allen  464,  467 

V.  Bramhall       523,  530,  548,  738,  945, 

982,  1592,  1620,  1624,  1625, 

1631,  1711 

Hoyle  V.  Cazabat  877,  888 

V.  Railroad  Co.      152,  154,  452,  1636 

Hoyt  V.  Bradley  388 

V.  Bridgewater  Min.  Co.  634 

V.  Fass  242 

V.  Hoyt  479,  547 

j;.  Inst,  for  Savings  642,  642  a, 

652  a,  1855,  1915,  1922 

r.  Jaques  129 

V.  Martense  827,  870  a,  1059, 

1374 

V.  Smith  1607 

V.  Thompson  127,  823 

Hubback  v.  Ross  129 

Hubbard  v.  Ascutney  Dam  Co.      792,  1063 

V.  Bagshaw  436,  446 

V.  Callahan  1141 

V.  Chappel  1503 

V.  Cummings  104 

V.  Ensign  749,  751 

V.  Gurney  461 

V.  Hubbard  391 

r.  Jarrell  1618,1740,1861, 

1915 

V.  Jasinski  958,  1807  c,  1815 

V.  Mo.  Valley  L.  Ins.  Co.       1198, 

1207 

V.  Norton  68 

V.  Ogden  114 

V.  Savage  70,  367 

r.  Shaw  1123,11236,1138 

V.  Smith  586 

V.  Stetson  285 

V.  Taylor  1639,  1670 

V.  Turner  479,  627,  791 

V.  Walker  464 

Hubbell  V.  Bank  429,  444 

V.  Blakeslee  846,  945 

V.  Broadwell  1587 

i;.  Moulson  13,14,715,1115 

U.Sibley       1147,1156,1751,1822, 

1852,  1882,  1906 

V.  Syracuse  Iron  Works  86 

Hubby  V.  Harris  272,  316 

Huber  v.  Crosland  1677 

Huckaba  v.  Abbott  374,  376 

Huckabee  v.  Billingsly  1771  a 

Huckins  v.  Straw  664 

Hudgins  v.  Lanier  1448,  1675 

,    1-.  Morrow  1323,  1792,  1915 

Hudnit  V.  xVash  1439 

Hudson  u.  Kelly  1100 

V.  Warner  550,  578 

Hudson  City  Sav.  Inst.  v.  Me  Arthur       139 

Huebsch  v.  Scheel  527,  572,  756,  870 


Huff  V.  Farwell 
Huffard  v.  Gottberg 
Huffman  v.  Cauble 
Huggins  V.  Hall 
Hughes  V.  Blackwell 
V.  Bucknell 
V.  Delaney 
V.  Edwards 


1626 

1699,  1937 

226,  234 

1388 

915 

776 

316 

50,  132,  285,  350, 


1144,  1195,  1201,  1202,  1204,  1215 

V.  Frisby  1459,  1577 

V.  Griswold  637,  642 

V.  Hodges  83  a 

r.  Johnson  827,906,908,1137 

V.  Sheaff  258,  265 

V.  Shull  627 

V.  Swope  1635 

V.  Thweatt  1485 

I'.  Tong  492 

V.  Williams  1123 

V.  Worley  368,  537 

Huguenin  v.  Baseley  1663 

Hngunin  v.  Starkweather  924,  927 

Hulaff  V.  Adrian  1813,  1815 

Hulbert  v.  Clark  1204,  1206,  1719 

v.  McKav  1685 

Huldenby  v.  Spofforth  129 

Hulett  V.  Southard  171 

Hulfish  V.  O'Brien  1502 

Huliug  V.  Drexell  635,  1 1 79  ft,  1 1 82  a, 

1355,  1606 

Hulings  V.  Guthrie  464,  465,  466 

Hull  V.  Alexander  748,  1712 

V.  Godfrey  878 

V.  King  1743,  1835,  1857,  1922 

V.  Louth  103 

r.  Lvon  706,1405,1411 

V.  McCall  268,  1052 

V.  Noble  548,  586,  589 

V.  Sullivan  575 

r.  Young  1709,1709  a 

Hulme  r.  Tenant  107 

Hulsman  v.  Whitman  628 

Hume  u.  Dessar  1503 

r.  Franzer  '    547 

V.  Pepioe  893 

Humphrey  v.  FincB  734 

V.  Hurd  36,  597,  717.  1152,  1158 

Humphreys  v.  Danser  918,  932,  935 

V.  Harrison  684 

V.  Merrill  465,  466 

V.  Morion  653,  1699 

[  V.  Newman  523 

V.  Snyder  163,  268 

Hungerford  v.  Clay  783 

V.  Smith  1469  a 

Hunsucker  r.  Smith  1067 

Hunt  I'.  Acre      644,  1322,  1396,  1414,  1418, 

1584 
V.  Bay  State  Iron  Co.  436,  439 

V.  Bullock  452 

V.  Chapman  1496,  1606 

v.  Dohrs  1324,1577 

V.  Dunn  548.  552 

V.  Ellison  1675 

u.  Fownes  1418,1606  6,1806 

853 


TABLE   OF   CASES. 


References  are  to  Sections. 


HuDti;.  Fox  969 

r.  Gray  1492a 

V.  Harding  1177,  1181 

V.  Hunt         97,  99,  703,  789,  808,  848, 

855,  859,  1211  a,  1254,  1290, 

1292 

V.  Innis  526 

V.  Johnson  476 

y.  Lewin  1322,1542,1711,1715 

V.  Maynard  1304 

V.  McConnell  1626 

V.  MuUanphy  435 

V.  Rooney  1100 

V.  Rousmanier  1792 

V.  Stiles  1228,  1257,  1262,  1699 

Hunter  t-.  Dennis  1062,  1158 

V.  Hatch  250,  293 

V.  Hays  669 

V.  Hunter  341 

V.  Le  Conte  893 

V.  Levan  1 592 

V.  Maanum  261,  335 

V.  Stoneburner  548 

V.  Wardlaw  909  b 

V.  Watson  .  467 

V.  Windsor  519 

V.  Wooldert  1889 

Huntingdon  v.  Huntingdon  114 

Huntington  v.  Bobbitt  1207 

V.  Crafton  982 

V.  Smith  701 

Huoncker  v.  Merkey  312 

Hurck  V.  Erskine  1703 

Hard  v.  Callahan  742 

r.  Case  1911 

V.  Coleman  359,  901  a,  950,  1158, 

1262,  1266,  1282,  1309 

V.  Eaton  1628 

V.  Robinson        70,  162,  343,  344,  350, 

352 

Hurford  v.  Harned  311  a 

Hurlburt  v.  Weaver  473 

Hurley  v.  Cox  1207 

V.  Estes  40,  62,  1207,  1747 

V.  Hollyday  226 

Hurlock  V.  Kelley  •  1821 

Hursh  V.  Hursh  1521 

Hurst  V.  Beaver  301 

V.  Clifton  9,  1462 

Hurt  V.  Blount  1462 

V.  Cooper  597 

Huscheon  v.  Hnscheon  288,  329 

Husted  u.  Dakin  1687 

Huston  V.  Stringham  1402,  1403,  1414, 

1493,  1494 

Hutchings  v.  Clark  964  a 

V.  Hunger  964 

V.  Muzzy  Iron  Works  1908 

Hutchins  v.  Carleton  804,  808,  848 

Hutchins  v.  King  143,  144,  145 

V.  State  Bank  797,  960 

Hutchinson  ;;.  Abbott  664 

V.  Benedict  351 

V.  Bramhall  456,  466,  478, 

605 

854 


Hutchinson  v.  Dearing  777 

V.  First  Nat.  Bank  1492  b, 

1516 

V.  Ford  150 

V.  Kay  448 

V.  Massareene  1537  a 

V.  Patrick  224 

V.  Swartsweller      929,  932,  971 

i;.  Wall  1647 

Hutchison  y.  Gill  616 

Hutton  V.  Mayne  1572 

V.  Moore  217 

V.  Sealy  1773 

Hutzler  v.  Phillips  183,  186 

Huxley  v.  Rice  679,  766 

Huyler  v.  At  wood  116,  742  a,  752,  753 

Huzzey  v.  Hefferuan  679 

Hyatt'/;.  Cochran  295,  335,  526,  752 

V.  James  617 

Hvde  V.  Bennett  456 

?;.  Dallaway  1149 

V.  Warren  1773,  1792,  1881,  1882 

Hyland  v.  Habich  367,  382 

V.  Stafford  1808,  1899 

Hyraan  v.  Bavne  1207 

V.  Bogue  1051,  1333 

V.  Devereux       355,  817,  924,  1752, 

1767,  1779 

V.  Kelly  41,  668,  1220,  1348,  1522, 

1532 

Hyndman  v.  Hyndman  317,  712,  1045, 

1876 


Iddings  V.  Bruen 
Ide  V.  Spencer 
Iglehart  v.  Bierce 
V.  Crane 

Ijames  v.  Gaither 


I. 


1535 
1489 
1392 
523,  530,  577,  982,  1620, 
1621,  1624,  1628,  1631 
573 
Illinois  Cent.  R.  R.  Co.  v.  McCuUough    597 
Illinois  Fire  Ins.  Co.  v.  Fix  408 

V.  Stanton       397,  408 
Illinois  Starch  Co.  v.  Ottawa  Hydrau- 
lic Co.  1545 
Imler  v.  Imler  1606 
Importers'   &   Traders'   Bank    v.   Mc- 

Ghees  883  a 

Inches  v.  Leonard  915,  1194,  1195 

Incorporated  Soc.  v.  Richards  1203 

Indiana,  B.  &  W.  Ry.  Co.  v.  McBroom    548, 

592 
Indiana  F.  Ins.  Co.  v.  Coquillard  422 

Indiana  Yearly  Meeting  v.  Haines         116, 

7.50,  758 


Ing  V.  Brown 

513 

i;.  Cromwell 

75,  1340 

Ingalls  V.  Atwood 

324 

V.  Bond 

791 

V.  Morgan 

879,  1620 

Inge  V.  Boardman 

729,  1402,  1414 

Ingell  V.  Fay 

692 

IngersoU  v.  Mangam 

1442  a 

V.  Sawyer 

1056 

TABLE   OF  CASES. 


References  are  to  Sections. 


Ingle  V.  Culbertson     1769, 1778, 1829,  1835, 

1902,  1907 

V.  Jones  1833,  1850,  1859,  1895 

Ingraham  v.  Desborough  842,  844 

Ingram  v.  Little  90 

V.Smith  1107 

Inloe  V.  Harvey  583 

Inman  v.  Parsons  1452 

Innes  v.  Stewart  1715 

Insurance  Co.  v.  Allis  113 

V.  Boggs  642  a 

V.  Crane  643 

V.  Murphy  848 

V.  Nelson  500 

V.  Sampson  398,  422 

V.  Stinson  397 

V.  Woodbury  420 

International  Bank  v.  Bowen  947 

V.  Wilshire  871 

International  L.  Ins.  Co.  v.  Scales  504 

Iowa  College  r.  Fenno  575 

Iowa  County  v.  Foster  926,  927  a 

V.  Mineral  Point  R.  R. 

Co.  1445,  1476 

Iowa  Loan  &  Trust  Co.  v.  Day  1444 
V.  Holderbaura 

102  a,  353 

y.  Mowery  743,  751 

Ipswich  Manuf.  Co.  v.  Story  919 

Ireland  v.  Abbott  1339 

v.  Woolman  1590,1621 

Ireson  v.  Demi  1409 

Irick  V.  Black  752,  768 

Irish  V.  Antioch  College  1785,  1922 

V.  Sharp  476,  1377 

Irnham  v.  Child  284 

Iron  Mountain  Co.,  in  re  1233 

Irvine  r.  Muse  218 

Irving  r.  De  Kay  1496 

Irwin  V.  Davidson  1125 

r.  Jeffers  1662 

V.  Longworth  271 

V.  Welch  495 

V.  West  927 

Isaacs  V.  Shattuck  1835 

Isbell  V.  Kenyon  1635 

Isett  V.  Lucas  607,  1700 

Isham  V.  Bennington  Iron  Co.  488 

Isler  V.  Koonce  1395,  1414 

Ison  V.  Kinnaird  1670 

Ives  V.  Stone  513 

Ivory  V.  Kennedy  1632 


Jackman  v.  Beck 

706 

i:  Rin  gland 

332 

Jackoway  v.  Denton 

663 

Jackson  v.  Austin 

470,  472 

V.  Blackwood 

.542,  571 

V.  Blodget 

813, 

817 

, 837, 1485 

V.  Bowen     352 

353 

,715,  808,812, 

813, 

1678,  1921 

V.  Bronson 

44,  808 

Jackson  v.  Brown  134 

V.  Campbell  798 

V.  Carswell  26,  166 

V.  Chamberlain  465,  467 

V.  Clark  740  a,  1873,  1874 

V.  Colden  474,  496,  1751,  1784, 
1892,  1893 
V.  Crafts  889,  893,  1898,  1910 

V  Davis  889 

v.  De  Lancey  777,915,1170 

V.  Dominick  646,  1808,  1898, 

1899 
V.  Dubois  44,  463,  464,  525,  701, 
702 
V.  Farmers'  Ins.  Co.  408 

V.  Ford  253 

V.  Given  482,  527 

V.  Green  171 

V.  Harris  1840 

V.  Henry  646,  1767,  1808,  1897, 
1898 
V.Hudson  915,1195 

V.  Hull  702,  1215,  1229 

V.  Humphrey  496 

V.  Jackson  719 

V.  Lawrence  1777  6 

V.  LittcU  1646 

17.  Lodge  20,288,1207 

V.  Losee  1411 

V.  Lynch  244,  250,  264,  1039, 

1123, 1144,  1146 
V.  Magruder  1678 

V.  Mass.  Mut.  Fire  Ins.  Co.  422 
V.  McChesney  527 

V.  McKnight  903 

V.  Minkles  702 

V.  Perkins  500,  501 

V.  Phillips  508 

V.  Pierce  706,  915 

I'.  Pratt  91.5,916,1195 

V.  Reid  460,  470,  482 

V.  Relf  848,  857,  870,  873,  1080, 
1134 
V.  Richards  276,  479,  501,  503 

V.  Rutled<,'e  225 

V.  Sackett  349,  1204 

V.  Schoonmaker  500 

V.  Sill  740  a 

r.  Slater  915,1170 

V.  Stackhouse  889 

r.  Stanford  1331 

V.  Stevens  341 

V.  Turner  1776 

V.  Turrell  453,  455,  696 

V.  Van  Valkenburgh  482,  527, 
538,  546,  548,  559,  560 
V.  Voorhis  1144 

V.  Warren  27,  583,  1637,  1653, 
1663 
*  V.  West  474 

V.  Willard  44,  701,  804,  1485 

V.Wood  1195 

Jackson,  L.  &  S.  R.  Co.  v.  Davison         519 

544 

Jacobs  V.  Denison  501 

855 


TABLE   OF   CASES. 


References  are  to  Sections. 


Jacobs  V.  Eagle  Mut.  F.  Ins.  Co.  399 

V.Gibson  1516,1.521 

V.  McClintock  1774 

V.  Richards  1510 

V.  Turpin  15.35,  1613,  1681 

Jacobsen  v.  Dodd  615 

Jacobus  V.  Mut.  Benefit  L.  lus.  Co.         503 

Jacoway  v.  Deuton  663 

V.  Gault  495,  539 

Jaeger  v.  Hardy  546,  593 

Jaffrey  v.  Crano  926 

Jagger  Iron  Co.  v.  Walker  357,  924 

J nmes,  ex  parte  1878 

James  v.  Biou  863 

V.  Brown  523,  530,  1624,  1631 

V.  Cowing  542 

V.  Day  741 

V.  Fisk'  1577 

V.Hubbard  1621 

V.  James  1572 

V.  Johnson  14,  479,  791,  848 

V.  Lichfield  586 

i>.  Morey         365,377,479,511,512, 

789,  791,  842,  844,  848,  85.5,  870 

V.  Roberta  619,  626 

V.  Stull  1833 

V.  Thomas  76 

V.  Worcester  695  a 

Jameson  v.  Emerson  298 

Jamieson  v.  Bruce  34 

Jamison  v.  Gjemenson  555,  564 

V.  Jamison  500 

V.  Perry  672,  1211 

Janinski  v.  Heidelberg  1420 

Janvrin  v.  Janvrin  548,  586 

Jaques  v.  Lester  586 

V.  Methodist  Epis.  Ch.  109 

V.  Weeks        244,  312,  464,  513,  546, 

552,  588 

Jarman  r.  Wiswall  1432,1711 

Jarnagan  v.  Gaines  926 

Jarratt  v.  McCabe  990,  992 

V.  McDaniel  367 

Jarvis  v.  Aikens  528 

r.  Albro  1196,1198,1258 

V.  Chapin  1642 

V.  Dutcher      136,  176,  179,  186,  188, 

476 

V.  Fox  351 

V.  Frink  820,  848 

V.  Woodruff  272,  289,  1145 

Jay  V.  Welchel  244 

Jaycox, in  re  1231 

Jean  v.  Wilson  487,  609 

Jeffers  v.  Gill  842 

Jefferson  v.  Coleman        1539,  1540,  1545  a 

Jefferson  College  v.  Dickson  729 

V.  Prentiss  1701  a 

Jefferson  Railroad  Co.  v.  Oyler       591,  592, 

595,  556,  598 

Jeffery  v.  Hursh  36,  241,  244,  339 

342  c 
Jeffries  v.  Allen  874  c 

Jellison  v.  Halloran  669,812,1118 

856 


Jencks  i'.  Alexander     1139,  1751,  1855, 

1906,  1911,  1938 

Jenkin  t*.  Row  281 

Jenkins  r.  Bauer  838 

r.  Continental  Ins.  Co.  792,1064, 

1081,  1087 

v.  Eldredge  1107 

V.  Freyer  1621 

V.  Green  665 

V.  Hiumau  1521 

V.  International  Bank  924 

r.  Jones  1106,1799,1801,1913 

V.  Levis  634 

V.  Pierce   1838,  1855,  1876,  1898, 

1915,  1922 

V.  Rosenberg  339 

V.  Simmons  91 

I'.  Smith  1378 

V.  Stetson  391 

V.  Stewart  268,  279 

Jenkinson  r.  Ewing  936,  1511 

Jenne  i:  Burt  113 

.Jenner  v.  Tracy  1144,  1173 

Jenness  v.  Cutler  1336 

V.  Robinson  1080 

Jennings  v.  Dixey  574 

V.  Hunt  642,  1512 

V.  McKay  1606  a 

V.  Moore  1701  a 

V.  Ward  1042,  1044 

V.  Wood  515,  517,  951 

Jerome  v.  Hopkins  101 

V.  McCarter      744,  1232,  1439,  1609 

V.  Seymour  859 

Jessup  V.  Bridge  160 

V.  Stone  487,  609 

Jesup  V.  City  Bank  76,  129,  1182,  1710 

Jesus  College  v.  Bloom  685 

.  Jett  V.  Cave  1323 

Jewell  V.  Harrington  1491 

V.  Holland  586 

V.  West  Orange  1383 

Jewett  V.  Bailey  244 

V.  Draper  749,  768 

V.  Guild  1104 

V.  Hamlin  673,  936 

V.  Keenholts  1658 

V.  Morris  1668 

V.  Palmer  555,  556 

Joerdens  v.  Schrimpf  956  a 

John  V.  Mayor  &  Aldermen  of  N.  Y.     1639 

John  Shillitto  Co.  v.  McConnell  629 

John  &  Cherry  Sts.,  in  re        136,  708,  1052 

Johns  V.  Church  350,  352 

Johns  y.  Reardon  114,488,1420 

r.  Scott  495,515 

V.  Sewell  557 

Johnson's  Appeal  906 

Johnson,  ex  parte  908 

Johnson  v.  Anderson         360,  907,  945,  947 

V.  Atchison  1880 

r.  Badger  M.  &  M.  Co.     538,1611 

V.  Baker  1661 

r.  Barrett  877 

V.  Bean  1211a 


TABLE   OF   CASES. 


References  are  to  Sections. 


Johnson  v.  Beard  788, 1789,  1889 

V.  Bell  723,  1624 

V.  Blydenburgh  1698 

V.  Britton  1400 

V.  Brown       822,  1280,  1283,  1306, 
1378 
V.  Backhaul ts  1459 

V.  Candage  821,  1072,  1228, 

1701  a 
V.  Carpenter  791,  838 

V.  Clark  209,  287,  544,  586 

V.  Cobleigh  1935 

V.  Cornett  804 

V.  Cummins  112 

V.  Day  1606,  1752  a 

V.  Donnell  1545,  1565,  1609 

i;.  Dorsey  1838 

V.  Elliott  848 

V.  Farley  502 

V.  Foster  761  a,  1404 

V.  Gere  1500 

V.  Glancy  586 

V.  Colder  1100 

V.  Hambleton  1425,  1616,  1618 
V.  Harder  748,  755,  760 

V.  Harmon  1047,  1070,  1075, 

1333,  1425,  1680 
r.  Hart  701,1374 

V.  Hosford  1129,  1135,  1137,  1606 
V.  Houston  39,  716 

V.  Huston  304 

V.  Johnson  1414,  1788,  1792, 

1794 
V.  Jones  225 

V.  Jouchert  113,  744 

V.  King  1324 

V.  Lasker  Asso.  644,  670,  736,  745, 
1202, 1509 
r.  Leonards  804,811 

j;.  Lewis  808,859,1120 

V.  McCurdy  611 

V.  Marsh  1606 

r.  Mever  1141,1612 

V.  Miller  1120,  1122,  1140 

V.  Monell  738,  748,  1402,  1404 

V.  Moore  877,  1004 

V.  Mosher  429,  433  a 

V.  Mounsey  1144 

V.  Murphy  624 

V.  Nations  913 

V.  Parmely  744,  813,  877, 1484 
V.  Payne  714,  1080,  1590,  1597 
V.  Phillips  1290 

V.  Polhemus  1452 

V.  Powers  1526 

V.  Rice  901  a,  982 

V.  Richardson  366,  621 

V.  Robertson  812,  1397,  1800, 

1902 
?;.  Sandhoff  808,812,1118,1902 
V.  Shepard  1432 

V.  Sherman  20,  288,  889 

V.  Smith  295 

V.  Stagg  478,  523,  525 

V.  Stevens  1229 


Johnson  v.  Taylor  495 

V.  Thomas  906,  908 

V.  Thompson  736,  744 

V.  Trotter  1442  a 

V.  Tucker  1520 

V.  Turner  1786 

V.  Valido  Marble  Co.        530,  1411 

V.  Van  Velsor   301,  335,  491,  500, 

1182  a,  1512,  1591 

V.  Walter  743,  947 

V.  Walton  488,  499 

V.  Ward  116 

V.  Watson       666,  719,  1868,  1876, 

189& 

V.  Webster  864 

V.  White  684,  1090 

V.  Williams  1621,1627,1858,  1860 

V.  Zink         741,  748,  793,  863,  878, 

879,881,  1087,  1380 

Johnston  v.  Canby  474,  538 

V.  Cochrane  225 

V.  Cockrane  239 

V.  Crawley  1331 

V.  Derr  625 

V.  Donvan  1442 

r.  Eason  1873 

V.  Elizabeth,  &c.  Asso.  638 

V.  Ferguson  112 

V.  Gray  244,  250 

V.  Morrow  447  . 

V.  Riddle       670,  1516,  1536,  1537 

V.  Smith  239 

V.  Speer  1606 

V.  Wallace  500 

Johnston  Harvester  Co.  v.  McLean  91 

Johnstone  r.  Scott  1051 

Jolland  V.  Stainbridge  546 

Jolly  V.  Arbuthnot  1519 

Jones  V.  Bamford  560 

V.  Berkshire  495 

V.  Binns  1099 

V.Blake  282,711 

r.  Bowler  1239 

V.  Bragg  866 

V.  Brewington  168 

V.  Brittan  335 

I'.  Brogan  948 

V.  Burden  1653 

V.  Carr  1670 

V.  Caswell  1677 

V.  Chamberlin  486 

V.  Clark  777 

v.  Conde  1215,  1709  « 

V.  Costigan  454 

V.  Davenport  614 

V.  Detroit  Chair  Co.  439 

V.  Dow  731,  1632 

V.  Elliott  71 

V.  Ewing  113 

U.Fletcher  1127 

V.  Flint  697 

V.  Gibbons  479 

V.  Oilman  1586 

V.  Green  679 

V.  Guaranty  Co.      124,  352,  365,  384 

857 


TABLE   OF   CASES. 


References  are  to  Sections. 


Jones  V. 


Jordan 


•  Hiffgins 

763 

.  Hill 

697 

.  Hudson 

559 

.  Ins.  Co. 

745 

.Jones             315,324,335,616,961 

•  King 

679 

.  Lapham    173,550,  1402, 1404,  1575 

.  Lawrence 

1181 

.  Mack 

1678,  1902 

.  McKenna 

874 

.  McNarrin 

584 

.  Marks 

586 

.  Martin 

493 

.  Matthie 

1801,  1906 

.  Merchants'  Bank                           674 

.  Meredith 

1067 

.  Merritt 

1718 

.  Moore 

1866 

.  My  rick 

1621 

.  Neale 

166 

.Null 

1218 

.  Parker 

468,472,  473,  927  a 

.  Parks 

768 

.  Parsons 

1416 

.  Phelan 

1621 

.  Phelps 

534,  535,  608,  901  a 

.  Porter 

1442 

.  Powers 

510 

.  Quinnipiack  Bank       387,  726,802 

.  Kadatz 

1606 

.  Ramsey 

429,  1180 

.  Richardson 

149,  1098,  1414 

.  Rigby 

715 

.  Robinson 

460,461 

.  St.  John 

1440 

.  Sehulmeyer 

1606 

.  Shaddock 

542 

.  Smith          481 

,  548,  550,  571,  572, 

578, 588 

604,  675,834,  1404 

.  Steinbergh  143 

2,  17096,1711,1714 

.  Sweet 

1464 

.  Tainter 

472 

.  Thomas 

.    697,  1658 

.  Tincher 

881 

.  Trawick 

286 

.  Trusdell 

649 

.  Webster 

150 

.  Wells 

1134 

.  WiUiams 

552,  573, 1194,  1211 

.  Yoakam 

176,  177 

V.  Blackniore 

1503 

V.  Cheney 

817,  818,  819 

V.  Farnsworth 

501,  517 

V.  Fenno 

287 

V.  Forlong 

948 

i".  Humphrey 

633,  642,  646,  1176 

V.  Katz 

338 

V.  McNeil 

459,  624 

V.  Mann 

992 

V.  Mead 

.538 

V.  Peak 

731 

r.  Sayre        25, 

680,  808,  874,  1193, 

1204,  1395,1406 

V.  Smith 

924,  936 

V.  Van  Epps 

1439,  1445,  1589 

858 

Josephthal  v.  Herman 
V.  Steft'an 
V.  Van  Eppes 
Joslin  V.  N.  J.  Car  Spring  Co. 

V.  Wyman 
Joslyn  V.  Parlin 
V.  Wyman 


392 

357,  886,  946, 

1079, 


Josselyn  v.  Edwards 
Jouchert  v.  Johnson 
Jourdan  v.  Jourdan 
Journeay  v.  Gibson 
Joy  V.  Adams 
7j.  Birch 

V.  Jackson,  &c.  R.  Co 
Joyce  V.  ]\Ieans 
Joyner  v.  Farmer 
V.  Stancill 
Joynes  i\  Statham 
Judd  V.  Flint 

V.  O'Brien 
V.  Seekins 
V.  Tryon 
V.  Woodruff 
Judge  V.  Booge 

V.  Conn.  Ins.  Co 
V.  Forsyth 
V.  Herbert 
V.  Reese 
V.  Vogel 
Judkins  v.  Woodman 
Judson  V.  Dada 

V.  Emanuel 
V.  O'Conuell 
Jumel  V.  Jumel 
Junction  R.  R.  Co.  v.  Bank 

V.  Ruggles 
Juniata  Build.  Asso.  v.  Mixell 
Junkins  i\  Lovelace 
Justice  V.  Tallman 
Juvenal  v.  Jackson 


1876,  1885, 
924,  926, 

244,  245,  621 

1751,  1839,  1840, 

503, 679 

517 


250 
632 


744,  764, 


560 
560 

1589 

'61  a 

1265 

,  803 

947, 

1265 

878 

113 

500 

496 

1204 

262 

1432 

1000 

1922 

,  930 

321 

,  928 

1855 

,  848 

1259 

,  703 

1869 

422 

1330 

1934 

,  337 

,  956 

694 

1625 

1396 

1635 

740 

6.56 

159 

638 

1322 

762 

.')56 


K. 


Kahn  v.  Weill 
Kaine  v.  Denniston 
Kaiser  r.  Lembeck 
Kalscheuer  v.  Upton 
Kamena  v.  Huelbig 


262 

574 

468,  470,472 

874,  878,  1064 

813,  879 


Kanawha  Coal  Co.  v.  Kanawha  & 

Ohio  Coal  Co.  1038 

Kanawha  Valley  Bank  v.  AVilson  848 

Kannady  v.  McCarion  19 

Kansas  Valley  Bank  v.  Rowell  134 

Kaphan  v.  Ryan  384,  933 

Karnes  v.  Lloyd  27,  1218 

Kartright  v.  Cady  44 

Kattenstroth  v.  Astor  Bank  1527 

Kauffman  y.  Walker  1646  a 
Kay  V.  Whittaker                 1396,  1402,  1439 

Keagle  v.  Pessel  98 

Keagy  v.  Trout  343,  627 

Kearney  v.  Macomb  263 

V.  Taylor  1670,  1677 


TABLE   OF   CASES. 


References  are  to  Sections. 


Kearsing  v.  Kilian 
Keasbey  v.  Wilkinson 
Keck  V.  Allender 
Keech  v.  Hall 
Keeder  v.  Murphy 
Keegan  v.  Cox 
Keeler  v.  Kceler 
Keene  v.  Biscoe 

1-.  Keene 

i:  Munn 


667 


1434 

1715. 

1590 

1066 

99 

105 

444,446,  449,  678 

1186 

1141 

1621 


Keepiy.  Michigan  L.  S.  R.  R.  Co.  1528, 1532 
Keiffer  v.  Starn 
Keil  V.  Healey 

V.  West 
Keiser  v.  Gammon 
Keister  v.  Myers 
Keith  V.  Catchings 
V.  Champer 
V.  Swan 
Keith  Coal  Co.  v.  Bingham 
Kelgour  v.  Wood 
Kellar  ?•.  Sinton 
Keller  v.  Ashford 


V.  Hannah 

V.  Lewis 

V.  Miller 

V.  Nutz 

V.  Wenzell 
Kelleran  v.  Brown 
Kelley  v.  Fisk 

V.  Stanberry 

V.  Whitney 
Kellogg  V.  Ames 

V.  Babcock 
V.  Carrico 
V.  Colby 
V.  Dickinson 
V.  Frazier 
V.  Howell 
V.  Rand 
V.  Rockwell 
V.  Smith 
V.  Wood 
Kellum  V.  Smith 


96 

716 

1663 

1912 

97,98 

248,  292 

1457 

1290 

126,  1345 

1395 

1204 

42,  749,752,  761  a, 

761  b,  761  c,  1407 

967 

236 

1587 

523 

1353 

244, 246,  300 

631,  734 

544,  586 

722,  834,  841 

848,853,  870,  943, 

1391 

1835,  1838,1859 

876 

915,  1196 

349 

1639, 1670,  1671 

733, 1621,  1622 

1114 

483,  804 

68,  915 

266,  312,  374 


Kelly  I'.  Ala.  &  Cinn.  R.  R.  Co.  124 

V.  Austin  439,  433,  439,  444 

V.  Beers  272 

V.  Bryan 
r.  Burnham 
V.  Duff 
V.  Falconer 
V.  Kelly 
V.  Kershaw 
V.  Leachman 

V.  Lenihan 
V.  Longshore 
V.  Mills 
V.  Payne 
V.  Roberts 
V.  Rosenstock 
V.  Searing 
V.  Thompson 
Kelsey  r.  Abbott 


Kelsey  v.  Dunlap 
Kelso  V.  Fleming 
Kemerer  v.  Bournes 
Kemp  V.  Earp 

V.  Mitchell 

V.  Small 
Kemper  v.  Campbell 

Kempner  v.  Comer 

Kendall  v.  Davis 

V.  Kendall 
V.  Lawrence 
V.  Niebuhr 
V.  Robertson 
V.  Tracy 
V.  Treadwell 

V.  Woodruff 
Kenicott  v.  Supervisors 
Kennard  v.  George 
V.  Mabry 
Kennedy  v.  Boykin 
V.  Brown 
V.  Chapiu 
V.  Davis 
V.  Dunn 


499 

742  a 

666,  1427 

275,  328 

1095 

305,  324 

62,  311,336,  339, 

513,  539 

83  a,  936,  1179  a 

339 

95 

591 

1621,  1624 

616 

1198,  1202 

1540,  1551,  1560, 

1561, 1562 

723,  982 

817,  834 

98 

463, 511 

706  a 

744,  747,  749 

823 

917 

1883,  1915 


310, 324  1 

807 

877 

1979 

874 /j 

1176,  1503 

244,  1196,  1198,  1204, 

1205 

630 

1370,  1599 

464,465,  467 

229 

763 

487,  495,  553 

1467,  1590 

246,  248, 312 

1445 


V.Green      552,561,565,566,571, 
604 
V.  Knight  134,  657,  660,  1204 

V.  Milwaukee  &  St.  P.  Ry. 

Co.  681  a 

V.  Ross  1355 

V.  St.  Paul  &,  P.  R.  R.  Co.         1 535 

Kennerly  v.  Burgess  690 

Kennett  v.  Plummer  39,  664,  781 

Kennion  v.  Kelsey  71,  677,  1220, 1335 

Kenosha,  &c.  R.  R.  Co.  v.  Sperry  1333 

Kenosha  Stove  Co.  v.  Shedd  791 

Kensington,  ex  parte  180,181 

Kent  V.  Agard  320 

V.  AUbritain  242 

V.  Congdon  964  a 

V.  Laffan  1752  a 

V.  Lasley  320,  335 

V.  Melius  842 

Kenton  f.  Spencer  1688,1690 

V.  Vandergrift  312,  977 

Kenyon  v.  Shreck  1333,  1425 

Keogh  r.  McMauus  1688 

Keogh  Manuf.  Co.  v.  Whiston  1533 

Keohane  v.  Smith  605,  956  a 

Kepler  v.  Erie  Dime  S.  &  L.  Co.  568 

Kerchncr  v.  Fairley  1521 

Kerfoot  r.  Cronin  523 

Kerford  v.  Mondel  894 

Keru  V.  Hazelrigg  583 

Kerngood  v.  Davia  682 

Kernochan  ;;.  Bowery  F.  Ins.  Co.  397, 

411,  419,  420,  427 

Kerns  v.  Swope  488,  495,  546 

Kerr  v.  Dav  586,  587,  589,  593 

V.  Gil  more  244,248,312 

r.  Hill  260,265,266,319.328, 

329,    335,  1658 

V.  Hitt  1835 

859 


TABLE    OF   CASES. 


References  are  to  Sections. 


Kerr  v.  Kingsbury 

439 

V.  Kitchen 

574 

V.  Russell 

500 

Kerrick  v.  Saffery 

1099,  1401,  1438 

Kersenbrock  v.  Muff 

1597 

Kershaw  r.  Dyer 

1642,  1709  a 

V.  Kalow 

1802,  1805 

V.  Thcmipson 

1663 

Kerwin,  ex  parte 

90 

Kesner  v.  Trigg 

134,  459 

Kessinger  v.  Whittaker       1663,  1664,1667 

Kossler  v.  State  504 

Ketchara  r.  Fitch  1597 

V.  Wood  372 

Ketchem  v.  Giilick  916,  917 

Ketchum  v.  Jainicey  380,  1187 

).'.  Pacific  R.  R.  Co.  178,  1535 

V.  Robinson  1663 

V.  St.  Louis  162 

V.  Shaw  666 

Keve  V.  Paxton  429,  446 

Key  V.  Addicks  1718 

V.  Jennings  1502 

V.  McCleary  295 

Keyes  v.  Bump "  64,  373,  374 

V.  Sherwood  1858 

V.  Wood  817,  821,  822 

Keys  V.  Test  555,  586 

Keyser  t'.  Hitz  771,772,1516,1536 

Kezer  i'.  Clifford  680,  1073 

Kibbe  v.  Dunn  1588 

V.  Thompson  1203,  1575 

Kibby  v.  Harsh  295,  335 

Kidd  V.  Conway  111 

V.  Teeple  20,  140,  271,  669 

Kidder  v.  Mcllhenny  355,  633,  924 

V.  Vandersloot  639 

Kiernan  v.  Blackwell  1414,  1449 

V.  Jersey  City  696 

Kieser  i\  Baldwin  117,  924 

Kihlholz  V.  Wolff  642  a,  1333 

Kilborn  v.  Robbins      858,  1089,  1093, 1285, 

1304,1621 

Kilcrease  v.  Lum  555 

Kile  V.  Yellowhead  66 

Kiley  v,  Brewster  1782 

Kilgore  V.  Dempsey  659  a 

V.  Powers  1141 

Kilgour  V.  Gockley  716,  817 

Kille  V.  Ege  501 

Killiau  V.  Andrews  609 

Killops  V.  Stephens  917,  1606 

Kilmer  v.  Smith  738 

Kilner  v.  O'Brien  634 

Kilpatrick  v.  Henson  643,  680,  1134 

Kimball  v.  Blaisdell  528 

V.  Connor  1477 

V.  Darling  684, 1541 

V.  Good  burn  964 

V.  Johnson  497 

V.  Lewiston  Co.  664,  689,  784 

V.  Lockwood  774,  777 

V.  Myers  1489 

V.  Pike  774 

Kimble  v.  Esworthy  468 

860 


Kimbrell  v.  Rogers 
Kimbrough  v.  Curtis 
Kimmell  i".  Willard 
Kimpton  v.  Bronson 
Kiucaid  v.  Howe 

V.  Richardson 
King  V.  Bangs 
V.  Bill 


1420,  1424,  1600 

229 

1064,  1742 

901 

63 

1204 

454,  695 

583 

V.  Bronson         1839,  1854,  1879,  1909, 

1915 
V.  Brown  1204,  1678,  1679 

V.  Dowdall  1838 

V.  Duntz  1111,  1751,  1822 

V.  Edington  1765 

V.  Eraser  458 

V.  Gilson  679 

V.  Greves  279 

V.  Harrington  805,  807,  1457 

V.  Housatouic  R.  R.  Co.  774 

V.  Kilbride  350,  735 

V.  King  280,  666,  866 

V.  Little  254 

V.  Long  worth  1590,  1591 

V.  McCarthy  523 

V.  McCully  525,  1654 

V.  McVickar  170,  530,  725,  849, 

1397, 1624 
V.  Meighen  1146 

V.  Merchants'  Exc.  Co.  62 

V.  Newman  257,  318 

V.  Paulk  465,  467 

!;.  Piatt  1617,1670,1072 

V.  Portis  465,  510,  539 

*  V.  Safford  1353 

I'.  St.  Michael's  11 

V.  Smith  684 

V.  State  Mut.  E.  Ins.  Co.        409,  421, 

712 

V.  Stow  1633 

V.  Warrington  308  a 

V.  West  1687,  1688 

V.  Whitely      752,  755,  759,  760,  761  a 

V.  Wilcomb  434,  697 

V.  Young  Men's  Ass'n  221,  235 

Kingman  v.  Harmon  102/* 

V.  Sinclair  988  a 

Kingsbury  v.  Buckner  1063 

V.  Powers  103 

V.  Sperry  103 

Kingsland  v.  Stokes  1455 

Kingsley  v.  Abbott  704 

Kinua  v.  Smith  787,  813,  1388 

Kinnear  v.  Loweli  768 

Kinney  v.  Ensign  919 

V.  McCleod  1359,  1444 

V.  M'Cullough  733 

Kinports  i".  Boyntou  312 

V.  Rawson  1500 

Kinsley  v.  Ames  1767 

V.  Davis  877 

V.  Scott  1404,  1440 

Kinsman  v.  Barker  1143 

Kipp  r.  Brandt  1412 

V.  Delamater  1803 

V.  Merselis  530,  723 


TABLE   OF   CASES. 


References  are  to  Sections. 


Kirby  v.  Childs 

V.  Fitzgerald 
V.  Keese 
Kircher  v.  Schalk 
Kirk  V.  Fort  Wayne  Gas  Co. 

V.  Williams 

Kirkaldie  v.  Larrabee 

Kirkham  v.  Dupont 

Kirkland  v.  Kirkland 

Kirkpatrick  v.  Caldwell 

V.  Corning 

V.  Lewis 

V.  Smith 

V.  Ward 

Kirkwood  v.  Thompson 

Kirtz  V.  Peck 

Kiser  v.  ileuston 

Kisterbock  v.  Lanning 

Kitchell  V.  Mudgett         139,  575,  753,  874  c 

Kitchen  v  Lee  104 

Kitchin  v.  Grandy  1701  a 

Kitteridge  v.  Chapman  555,  556,  557 

Kittle  V.  Van  Dyck  468,  1374,  1375, 

1421,  1426 

Kittredge  r.  Bellows  1258 

V.  Woods  433  a 

Kitts  V.  Wilson  283,  294 

Klapworth  v.  Dressier        751,  761  a,  761  b, 

1711 

Kleiman  i\  Geiselman  877 

Klein  v.  Glass  365,  1774, 1909,  1915 

i\  Isaacs  744,  752 

V.  McNamara  118,  269,  279,  303, 

322,  325,  329 

Kleinschmidt  v.  Kleinschmidt  263,  265 

Klinck  V.  Price  264,  319,  663 

Kline  v.  Camp  1336 

V.  McGuckin  378 

V.  Ragland  679,  874  a,  877,  907 

V.  Vogel  1858,  191.5,  1921 

Klock  V.  Cronkhite        871,  876,  1751,  1855, 

1909 

V.  W^alter  293,  332 

Knaggs  V.  Mastin  92 

Kuapp  V.  Bailey  298, 335,  544,  545,  571, 586 

V.  Burnham  1351,  1496,  1619 

V.  Jones  478 

V.  Lee  1 503 

V.  Smith  1 1 1 

Knarr  v.  Conaway  684,  686,  1334 

Knaus  v.  Dreher  267,  286,  335 

Kneeland  v.  Am.  L.  &  T.  Co.  1642 

V.  Moore  870 

V.  Smith  1670 

Knell  V.  Green  St.  Asso.  462,  463,  464 

Knetzer  !;.  Hradstreet  1215 

Knickerbacker  v.  Eggleston  1576 

Knickerbocker  L.  Ins.  Co.  v.  Nelson      634, 

1443,  1494 
Knight  V.  Bampfeild  1142 

V.  Bowyer  589,  595 

V.  Cheney  1235 

V.  Drane  1496 

V.  Dyer  244 

V.  llurtman  267 


1336,  1577 

Knight 

V.  Jacksou 

964 

,  1805,  1806 

1940 

V.  Knight 

1367 

1067 

V.  Majoribanks 

711 

43,  453,  688 

V.  McCord 

295,  335 

1718 

V.  McKinney 

915 

222,  223 

V.  Moloney 

1644,  1651 

177,  528 

V.  Pocock 

1386 

1074 

V.  Ray 

822 

1442 

V.  Rouutree 

875,  881 

474,  475 

V.  Thayer 

679 

1438, 1665 

V.  Warren 

883  a 

1743,  1855 

V.  Whitehead 

114 

1105 

Knisely  v.  Williams 

226 

538 

Knoblach  v.  Zschwetzke 

741 

1876,  1884 

Knoblauch  v.  Foglesong 

879 

1496 

Knoll  V.  N.  Y.  C.  &  St.  L. 

Ry. 

Co.          708 

504,  517 

Knolls 

V.  Barnhart 

501,  863 

429 

Knott 

V.  Manuf.  Co. 

168 

Knouft"  ?J.  Thompson  574 

Knowles  v.  Carpenter  848,  983 

V.  Knowles  293,  335 

V.  Lawton  870,  1331 

V.  Maynard  777 

V.  McCamly  109 

i;.  Rablin       1072,1395,1578,1680 

V.  Torbitt  1574 

Knowlson  v.  Bruist  626 

Knowlton  v.  Walker         244,  266,  511,  513, 

1039,  1144,  1147,  1156,  1193 

Knox  r.  Armistead  1883 

u.  Easton  18,  739,  777 

V.  Galligan  788,  1204,  1215,  1485 

V.  Johnston  906 

V.  Lee  901 

I'.  McCain  1771 

i;.  Moser  1590,1718 

V.  Silloway  559 

V.  Simmons  898,  1088 

Knox  Co.  V.  Brown  574 

Kobiter  r.  Albrecht  1506 

Koch  V.  Briggs  281,  1146,  1547  a,  1769 

V.  Losch  744 

V.  Purcell  1439,  1672,  1683,  1687 

Koehler  y.  Ball  1637 

V.  Black  River  Falls  Co.  128 

Koeper  v.  Ry.  Co.  510 

Koester  v.  Burke     1699,  1771  a,  1889, 1902, 

1939 
Koevenig  v.  Schmitz  535,  607  a 

Koger  V.  Kane  1811 

Kohler  v.  Smith  74,  1141 

Kohlheim  v.  Harrison  1152 

Kohn  V.  McHatton  456 

Kohner  V.  Ashenaucr  1420 

Kollew.  Clausbeide  1106,  1107 

Koon  V.  Tramel  460,  461,  597,  710 

Ko])meier  v.  O'Neil  1365 

Kojjpcr  V.  Dyer  1095,  1 107,  141 1 

K(>])pinger  v.  O'Donnell  1097 

Korncgay  v.  Spicer  1808,  1813,  1876 

Korns  v.  Shaffer  187<> 

Kortright  v.  Cady     358,  674,  715,  886,  889, 
893,  1080,  1450 
V.  Smith  1514,  1709 

Kountzc  V.  Omaha  Hotel  Co.         670,  1521 

861 


TABLE   OF   CASES. 


References  are  to  Sections. 


Kraemer  v.  Adelsberger     246,  265,  273,  278 
Kramer  v.  Farmers'  &  M.  Bank      368,  383, 

1187 
V.  Robman  76,  1335,  1577 

Krake  v.  Alexander  618 

Kranerc  v.  Simon  ,  460 

Kreichbaum  v.  Melton  1581,  1656 

Krider  u.  Lafferty  591 

Kronebuscber  v.  Raumin  893 

Kronk  ik  Birmingbam  Ins.  Co.  422 

Kropholler  v.  St.  P.,  M.  &  M.  Ky.  Co.      1636 
Krueger  v.  Ferry  1498 

Krupp  V.  Krugel  1483 

Kruse  v.  Scripps  66,  676,  703 

Krutsinger  v.  Brown  383,  1439 

Kuhn  V.  Rumpp  288,  339 

Kuhus  V.  Bankes  817 

Kiiukel  r.  Markell  1403 

Kiinkle  v.  Wolfersberger  277,  312 

Kunzie  v.  Wixom  1388 

Kursheldt  v.  Union  Sav.  Inst.       1412,  1420 
Kurtz  V.  Sponable  635,  813,  1606  a 

Kyger  v.  Ryley  40,  1207,  1550,  1769 

V.  Sipe  1709  6 

Kyle  V.  Bellenger  221 

V.  Tbompson  523,  524,  1699 

V.  Ward  548 

Kyner  v.  Kyner  885  b 


Laberge  v.  Chauvin  817 

Lacassagne  v.  Chapins  583 

Lacey  v.  Davis  680 

V.  Tomlinson  972 

Lackas  17.  Bahl  1657 

Lackey  v.  Bostwick  292,  342  c 

V.  Holbrook  675,  1289 

Laclede  Bank  v.  Keeler  1915 

Lacon  v.  Allen  180,  182 

V.  Davenport  22 

Lacoste  v.  West  1338 

Lacustrine   Fer.  Co.   v.  Lake   Guano 

Co.  557 

Lacy  V.  Rollins  83  a,  103 

Ladd  V.  Campbell  481 

V.  Putnam  1296,  1306 

V.  Ruggles  1324 

V.  AViggin  796 

Ladue  v.  Detroit  &  M.  R.  R.Co.      364,  369, 

372,  669 

La  Farge  v.  Herter  649 

V.  Van  Wagenen  1634 

La  Farge  F.  Ins.  Co.  v.  Bell  538,  570 

Lafayette  Building  Asso.  v.  Erb              469 

Laflin  v.  Crosby  665 

V.  Griffitfhs  428,  447,  454,  455 

Lahr's  Appeal  463 

Laidley  v.  Aikin  468,  472 

Laing  v.  Byrne  763 

V.  Martin  648 

Lake  v.  Brown  1785 

V.  Doud  82,  168,  522 

V.  Meacham  320,  335 

862 


Lake  v.  Sbumate 

V.  Thomas 
Lakenan  v.  Robards 
Lalane  v.  Payne 
Lallance  v.  Fisher 

Lally  V.  Holland 
Lalor  V.  McCarthy 
Lamar  v.  Jones 
Lamb  v.  Cannon 
V.  Fteley 
V.  Foss 
V.  Jeffrey 
V.  Montague 

V.  Pierce 
V.  Richards 
V.  Tucker 
r.  West 
Lambert  v.  Hall 


352  a,  530,  723,  1083 

1155,  1106,  1171 

957 

936 

1813,  1830,  1864,  1895, 

1906,  1907,  1915 

489, 517 

1858,  1915 

1144 

473, 536 

1335 

668 

1064,  1087,  1095 

792,  874,  1063,  1064, 

1067,  1072,  1086 

253,  544,  586 

1333 

750, 758 

1335,  1336 

354 


V.  Leland  969 

V.  Livingston         1587,  1637,  1663 
V.  Navman  .554 

V.  Newman  546 

Lamberton  v.  Merchants'  Bank  465 

Lambertville  Nat.  Bank  v.  Bag  &  Pa- 
per Co.  1384,  1385,  1387 
Lambertville  Nat.  Bank  u.  Boss  462,  463 
Lamerson  v.  Marvin  1858 
Lamm  v.  Port  Deposit  Asso.  1740 
Laramer  v.  Stoddard  915 
Lammon  v.  Austin  1606 
Lamoille  Co.  Nat.  Bank  v.  Bingham  644 
Lament  v.  Cheshire  585 
V.  Stimson  546 
L'Amoreux  v.  Vandenburgh  603 
Lamoreux  v.  Huntley  586 
Lampe  v.  Kennedy  474 
Lampley  v.  Knox  889 
Lamprey  v.  Nudd  808,  812 
Lampson  v.  Arnold  627 
Lamson  v.  Drake        1065,  1086,  1088,  1094 


Sutherland 
Lanahan  v.  Lawton 

V.  Sears 
Lancaster  v.  Dolan 
V.  Smith 
Lance's  Appeal 
Land  Asso.  v.  Viera 
Land  Co.  v.  Hill 
V.  Peck 
Lander  v.  Arno 
Landers  v.  Beck 
V.  Bolton 
?•.  Brant 
Landis  v.  Saxton 
Landon  v.  Burke 
Landrum  v.  Union  Bank 

Lane  v.  Barron 
V.  Burdick 
V.  Collier 
V.  Conger 
V.  Davis 
V.  Dickerson 


107 

1229 

244,  731 

129 

989, 1355 

281,312,335 

16.56 

574 

1383 

1222 

294,  322 

589 

586 

642 

1541,  1556,  1562 

330,  1862,  1915, 

1922 

9.50 

1444 

473 

1617 

606,  821 

315 


TABLE   OF   CASES. 


References  are  to  Sections. 


Lane  v.  Doty 
V.  Ducbac 

1198 
817, 964 

V.  Erskine 

1414 

V.  Hitchcock 

454,  696 

V.  Kiug 

697,  780,  1658 

V.  Log  lie 

460 

V.  Nickerson 

534 

V.  Schlemner 

1484 

V.  Shears 

244,  324 

V.  Traders'  Dep.  B 

auk                       113 

Laney  v.  Laney 
Lanfair  v.  Lanfair 

283 
69,  242,  244,  393 

Langdon  v.  Buel 

817 

V.  Gray 
V.  Keith 

647 
817,  821,  822,  827 

V.  Paul 

687,  689,  1460 

V.  Stiles 

1563 

Lange  v.  Jones 
Langer  v.  JNIerservey 

1440 
295, 335 

Langley  v.  Bartlett 

924,  933 

V.  Vaughn 

163 

Langridge  v.  Payne 
Lanystaffe  r.  Fenwick 

1186 
1526 

Langston,  ex  parte 
Langston  v.  S.  C.  K.  R 

181,  183 
Co.              74,  1141 

Langton  v.  Horton 

149,  275,  277 

V.  Langton 
Lanigan  v.  Sweany 
Lannay  v.  Wilson 
Lanning  v.  Smith 

1439 

787,  1821 

1382,  1660 

1072,  1095 

Lanoue  v.  McKinnon 

1462,  1606  a 

Lanoy  v.  Athol 

1628 

Lansdown  v.  Elderton 

1642 

Lansing  v.  Albany  Ins. 

Co.                      1609 

V.  Capron 
V.  Goelet 

1351 
1228,  1539,  1573, 

1882 

V.  McPherson 

1639,  1640 

Lantry  v.  French 

1179  c,  1180 

Lapowski  v.  Smith 

264 

Lappen  v.  Gill 
Lapping  v.  Duffy 
Laprad  v.  Sherwood 

768,  864 
814,  936 
625,  835 

Large  v.  Van  Doreu 

357,  943,  1383,  1602 

Largey  v.  Sedman 

60 

Larison  v.  Wilbur 

177 

Larned  v.  Clarke 

720,  1256 

Larson  v.  Weisbecker 

177 

La  Rue  v.  Gilbert 

731, 1632 

Larzelere  v.  Starkweather              1742,  1857 

Lash  V.  Edgerton 

531,  730 

I'.  Lambert 

74,  1141 

Lashbrooks  v.  Ilatheway               1466,  1469 
Lashley  v.  Souder                                       389 
La  Societe'  Frangaise  v.  Weidman         1710 

Lass  V.  Sternberg 

1880 

Lasselle  v.  Barnett 

734,  874  c,  927  a 

Latham  v.  Blakely 
V.  McCann 

435 
1504 

V.  Whiteburst 

1752 

Lathrop  v.  Atwood 

769,  1472 

V.  Blake 

435 

V.  Brown 

1792 

V.  Godfrey 

1496,  1497,  1506, 
1507 

Lathrop  v.  Heacock 

V.  Nelson 
Latimer  v.  Latimer 

V.  Moore 
Latiolais  v.  Citizens'  Bank 
Latrobe  v.  Hulbert 
Lattan  v.  Royal  Ins.  Co. 
Latter  v.  Dashwood 
Latz,  in  re 

Lauderdale  v.  Hallock 
Laughlin  v.  Braley 
V.  Heer 
V.  Hibben 
Lauriat  v.  Stratton 


1420 

1653 

768 

1530 

929 

644,  668 

407 

1140,  1440 

1204 

381 

136,  138 

1040 

1793 

1074,  1354,  1335, 

1354,  1397 

Lausman  v.  Drahos  1091,  1021,  1624 

Lautz  V.  Buckingham  618 

Lavenson  v.  Standard  Soap  Co.      429,  444, 

446,  447,  684,  696 

Laverty  v.  Moore  138,  1655 

Lavigne  v.  Naramore  220 

Lavillebeuvre  v.  Frederic  621 

Law  V.  Glenn  1519 

Lawley  v.  Hooper  1153 

Lawrence  v.  Beecher  1710 

V.  Clark  460,  629 

'     I'.  Conklin  383 

V.  Cornell  1649 

V.  Du  Bois        319,32.5,328,329, 

339,  600 

V.  Farley  738 

V.  Farmers'  L.  &  T.  Co.   62,  271, 

1751, 1767,  1827,1863 

V.  Fellows  1716 

V.  Fletcher    63,  1261,  1269,  1270 

V.  Fox     757,  758,  760,  762,  1713, 

1721 

V.  Guaranty  Invest.  Co.  339 

V.  Jarvis  1668 

V.  Knap  817 

V.  Lawrence  100,  1381 

V.  McCalmont  610 

V.  Owens  460 

V.  Stratton  544,  808 

V.  Towie  738,  751 

V.  Tucker  365,  379 

Lawrenceville  Clement  Co.  v.  Parker      170 

Lawson  t'.  Barron  1186 

Lawton  v.  Gordon  508,  546 

V.  Lawton  1442 

Lay  V.  Gibbons  1618 

V.  Seago  630  a 

Layard  v.  Maud  604 

Laylin  v.  Knox  874,  1063,  1590 

Layman  f.  Shu) tz  112 

V.  Whiting  1751,  1893,  1894 

V.  Willard  1621 

Lea  V.  Polk  Co.  586 

Leach  v.  Ausbacher  588 

V.  Beattie  523 

V.  Noyes  116 

V.  Vining  1496 

Leahigh  v.  White  264,  260,  608 

Leahy  v.  Arthur  1527 

Lear  v.  Prather  97 

8G3 


TABLE   OF   CASES. 


References  are  to  Sections. 


Lear  t\  Tatfen  1632 

Learned  v.  Bishop  769 

V.  Foster      1268,  1741,  1844,  1885, 

1904,  1919 

V.  Gear  1879,  1906,  1915 

V.  Tritch  542 

Leary  v.  Shaffer     666,  942,  1629,  1693, 1694 

Leas  V.  Gaverich  _^.      548 

Leasure  v.  Union  Mut.  L.  Ins.  Co.        134  a 

Leatherdale  v.  Sweepstone  1088 

Leavans  v.  Ohio  N.  Bank  1606 

Leavitt  v.  Files  1670 

V.  Pell  I486 

V.  Pratt  972 

V.  Reynolds  1699,  1703 

Lebanon  Sav.  Bank  v.  Hollenbeck  474, 

1482 

Le  Beau  v.  Glaze  889 

Leckey  v.  Holbrook  675 

Le  Clert  v.  Oullahan  462 

Ledger  Build.  Asso,  v.  Cook  500,  626 

Ledlie  v.  Vrooman  109,  110 

Ledvard  v.  Butler  14 

V.  Chapin  889,  94.3,  1898 

V.  Phillips  16.50 

Lee  V.  Bermingham  467,  504,  517,  519 

V.  Cato  557,  559 

V.  Clark  817,  956,  956  a,  964 

f.  Clary  36,717,1742,1785,1786, 

1843 

V.  Evans  7,  288,  323 

V.  Fletcher  1743 

V.  Kirkpatrick  683 

V.  Mason  1742,  1829 

V.  Munroe  603 

V.  Parker  1589 

V.  Pearce  711,  712 

V.  Salines  583 

V.  Stiger  736,  745 

V.  Wagner  966,  967 

V.  West  Jersey  Land  Co.  1 1 90 

V.  Woodworth  66 

Leebrich  v.  Stable  586 

Leech  v.  Bonsall  479 

f.  Hillsman  315,337 

Leeds  v.  Cameron  365,  366,  621 

v.  Gifford  670,906,1116,1516 

Leedy  v.  Nash  351 

Lees  t?.  Whiteley  401 

Leet  V.  McMaster       1751,  1839,  1906,  1911 

Lefebvre  v.  Dutruit  500,  626 

Lefevre  v.  Laraway  1639,  1640,  1670 

Lefevre's  Appeal  568 

Lefterson  v.  Dallas  593 

Leffler  v.  Armstrong  1780,  1838 

Leggett  V.  Bullock  474,  539 

V.  Edwards  247 

V.  Leggett  335 

V.  M'Carty  1502 

V.  McClelland  883  a 

V.  Mut.  L.  Ins.  Co.  1397,  1401 

Leger  v.  Doyle  458 

Lego  V.  Medley  1445 

Lehigh  Coal  &  Nav.  Co.  v.  Cent.  K.  R. 

Co.  681  a 

864 


Lehman  v.  Collins  1095 

V.  Comer  1606,  1923  b 

V.  God  berry  608 

V.  Marshall  150,  151 

V.  Moore  1322 

V.  Tallassee  Co.  670,  1521 

Lehman  Brothers  v.  McQueen  961 

Lehndorf  i-.  Cope  137 

Leib  V.  Stribling  1628 

Leiby  v.  Wolf  523,  524,  530 

Leigh  V.  Lloyd  1455,  1766 

Leighton  v.  Preston  34 

Leiman's  Est.  580 

Leitch  V.  Wells  584,  959 

Leith  V.  Irvine  650,  1044 

Leman  y.  Newnham  1194, 

Lemon  i'.  Staats 

Lenfesty  v.  Coe 

L'Engle  v.  L'Engle 

Lenihan  v.  Hamann 

Lennig's  Estate 

Lennon  v.  Porter 

Lenox  v.  Reed 

Lent  V.  Morrill 

V.  Shear 

Lents  V.  Craig 

Lentz  V.  Martin 

Leonard  v.  Binford 

V.  Cox 

V.  Groome 

V.  Morris 


V.  N.  Y.  Bay  Co. 
V.  Tyler 

V.  Villars 
Lerch  v.  Hill 
Lesley  i".  Johnson 
Leslie  v.  Hinson 

V.  Merrick 
Lessly  i\  Bowie 
Lester  v.  Barron 

V.  Hardesty 
L'Etourneau  v.  Henquenet 
Letson  v.  Reed 
Letts  V.  Hutchins 
Leveridge  v.  Forty 
V.  March 
Levert  v.  Redwood 
Levey  v.  Union  Print  Works 
Levi  V.  Blackwell 
Levinz  v.  Will 
Levis  V.  Zinn 
Levistou  V.  Swan 
Levy  V.  Beasley 

V.  Brush 

V.  Burkle 

V.  Haake 

V.  Lane 

V.  Martin 

V.  Meutz 

V.  Merrill 

V.  New  York 
Lewark  v.  Carter 
Lewars  v.  Weaver 
Lewis  V.  Babb 


1197 

508 

1587 

1606 

1233,  1438 

752,  757 

703,  1211  a,  1254,  1263 

30,  62,  1406,  1769 

1207 

1202,  1203,  1509 

1613 

244 

1202 

652  a 

1425,  1441 

1414,  1432,  1433, 

1709  b,  1717 

1412,  1669 


1182a 

655,  1420 

1838 

551,  631 

504 

625 

1500,  1502 

1491 

785 

137 

554 

1071,  1215 

1557 

1442 

1460,  1619 

1179  c 

352  a,  360,  1083 

474 

629 

1324,  1574 

1606 

323,  332 

1728,  1752 rt 

1232 

679 

874,  874  a,  874  r,  877 

456 

913 

695 

1646 

500 

1306 


TABLE   OF   CASES. 


References  are  to  Sections. 


Lewis  V.  Baiid 
V.  Bayliss 
V.  Boskins 
V.  Chapman 
V.  Conover 
V.  Day 
V.  De  Forest 


488,  510 

326,  331 

173,  218,  1449 

226 

936.  991 

738, 748 

70,  343,  380,  387, 

1701  a 

V.  Fariell  817,  821 

V.  Germania  Sav.  Bank  1606 

V.  Graves  106 

V.  Hartford  Silk  M.  Co.         373,  909 

V.  Hawkins  218,  226,  233,  237 

V.  Hinman  504,  517,  858,  1092 

V.  Kirk  479,  820,  834,  956  a,  957,  967 

V.  McDowell       '  233 

V.  Nangle  1062,  1418 

y.  Noble  917 

V.  Owen  66,  1060 

V.  Phillips  555,  556 

V.  Pusey  226 

V.  Richey  1187,  1188 

V.  Sclnveim        672,  1192,  1197,  1204 

V.  Smith  1413,  1421,  1439,  1440, 

1445,  1589,  1589  a 

V.  Wayne  376 

V.  Welch  1636 

V.  Wells  1723,  1786,  1896 

Lewter  v.  Price  357 

Libbey  i'.  Tufts  722,  723 

Libby  v.  May  berry  796 

Lichty  V.  McMartin  72,  1220,  1336 

Lies  V.  De  Diablar  709 

Life  Asso.  in  re  1120 

Life  Asso.  v.  Dale  1606  a 

Liford's  Case  433 

Ligget  V.  Bank  of  Pa.  678 

Liggett  V.  Himle  971 

Lightfoot  v.  VVallis  626 

Liguot  V.  Redding  1496 

Likes  V.  Polk  981 

V.  Wildish  1587 

Lilienihal  )'.  Champion  1494 

Lillibridge  v.  Tregent  812 

Liilie  V.  Case  218 

Lilly  y.  Dunn  1207 

V.  Gibbs  1742 

V.  I'almer  740,  865 

V.  Quick  966 

Lime  Rock  Bank  v.  Howry  366,  848 

V.  Phetteplace  1923 

I>incoln  v.  Emerson  682,  789,  1211  a, 

1251 

V.  Parsons  300,  1282 

V.  Purccll  576 

V.  Wright  284,  322,  328,  600 

Lincoln  Build.  Asso.  v.  Graham  638 

r.  Hass  138,  518 

Lindauer  v.  Cummings  293 

Lindley  v.  Martindale  603 

i;.  O'lieilly  1774a 

V.  Roi-8  1 606 

V.  Sharp  297 

Lindsay  v.  Garvin  360,  943,  947 

V.  Hill  633,  647,  656 


Lindsay  v.  Lindsay 
V.  Matthews 


VOL.    II. 


55 


335 
241,  250,  291,  331, 
900,  1088,  1108 
Lindsey  v.  Bradley  390 

V.  Delano  1462 

Line  v.  Blizzard  626,  1492 

Linean  v.  Henderson  218 

Link  IK  Germantown  Asso.  638 

Linuell  v.  Lyford  340,  808,  1039,  1045, 

1046 

Linscott  V.  Lamart  870 

17.  Weeks  687 

Linville  f .  Bell  1229 

Lipp  V.  Land  Syndicate  264,  586 

Lippold  V.  Held  924,  926 

Lipse  I'.  Spear  574 

Litchfield  v.  Ready  ,     IC 

Lithauer  v.  Royle  16S8,  1708 

Littauer  i\  Goldman  824 

Littell  V.  Grady  1906 

V.  Jones  1862 

V.  Zuntz  1640,  1670 

Little  V.  Bowen  848 

V.  Little  769 

V.  Riley  656,  1293.  1300 

Littleficld  I'.  Crocker  1421 

Littlejohn  v.  Gordon  1209 

Littler  v.  People  1051 

Little  Rock,  &c.  Ry.  Co.  v.  Page  149 

Littleton  v.  Giddings  551,  560 

Littlewort  v.  Davis  303 

Livermon  v.  Railroad  Co.  681  a 

Livermore  v.  Maxwell  814,  957,  1606 

Livingston  v.  Hayes  36 

V.  Ives  1105,  1807  a 

V.  Kettelle  499 

V.  Mclulay  372 

V.  Mildrum       1351,  1579,  1600, 

1016,  1687,  1688 

Llewellin  v.  Mackworth  1195 

Lloyd  V.  Frank  1673 

V.  Hoo  Sue  1069 

r.  Johnes  1401 

r.  Karnes  1333 

V.  Lander  1099,  1438 

I'.  Pas>ingham  1411 

V.  Scott  1493 

Loan  &  Trust  Co.  i-.  Maltby  529 

Lock  V.  Fulford  1020,  1621 

Lockard  v.  Hendrickson  1114,  1550  a 

V.  Joines  848,  870 

Locke  V.  Caldwell  1144,  1146,  1158, 

1196,  1212 

V.  Homer  752,  761  a,  709,  770 

V.  Mouiton  272,  288,  699 

w.  Palmer  251,279,286 

Locker  v.  Rilcv  580 

Locket  V.  Hill"  1792,  1794,  1876 

Lockhart  v.  Ward  1413 

I.,ockman  v.  Keilly  1428 

Lockwood  V.  Bcckwith  1490 

V.  Ikmedict  1408 

V.  Fawcett  1717 

t;.  Lockwood  1 154 

V.  Mar-sh  874,  874  r,  877 

865 


TABLE  OF   CASES. 


References  are  to  Sections. 


Lockwood  V.  Mills 

1876 

t".  Mitchell 

658,  662,  1916 

V.  Reese 

1535 

V.  Sturdevant 

848 

Lockyer  v.  Jones 

901,  1088 

Lodge  V.  Turroau 

288,  324 

Loeb  V.  Fleming 

877 

V.  Tinkler 

1462, 1545 

V.  Willis 

1709  6 

Loeber  v.  Eckes 

1911,  1915 

Loehr  v.  Colborn 

1472 

Lofsky  V.  Maujer        669, 

1516,  1527,  1530, 

1536 

Loftin  V.  Strew 

1679 

Loftus  V.  Sw'ft 

1602 

Log  Cabin  Build.  Asso.  v. 

Gross              745 

Lognn  V.  Smith 

834, 1406 

t'.  Williams 

1575 

Logue's  Appeal 

312,  332,  335 

Lokerson  v.  Siillwell 

308 

Lomax  r.  Bird 

1055,  1059 

V.  Hide 

1606  6 

V.  Smyth 

1444 

Lombard  v.  Culbertson 

504 

London  &  W.  Loau  Co.  v 

Drake            440 

Loney  v.  Couvtnay 

1095 

Long  V.  Crossman 

113 

V.  Dollarhide 

523 

V.  Herrick 

1606 

V.  Kaiser 

1086,1625 

V.  Kinkel 

1455 

V.  Long           812,  8' 

4,  877,  878,  1070, 

1146,  1593, 

771,  1777  6,  1831 

V.  McGregor 

1911,  1912 

V.  Neville 

583 

17.  Eogers 

1848,  1908 

V.  Wade 

771, 777 

V.  Weller 

.548 

Longan  v.  Carpenter 

839 

liOngbottom  v.  Berry 

437,  444 

Loiigstaff  V.  Meagoe 

428,  433  a 

Longuet  v.  Scawen 

3,  1 1 53 

Longwith  v.  Bntler 

1767,  1906 

Longworth  v.  Flagg 

1222 

V.  Taylor 

1204 

Look  V.  Kenney 

1785 

Looker  v.  Peckwell 

149 

Lookout  Bank  v.  Noe 

466 

Loomer  v.  Wheelwright 

104,  114,  848, 

855,  951,  958 

Loomis  V.  Donovan 

1190 

V.  Eaton 

745,  1493 

V.  Hudson 

97 

V.  Jackson 

740  a 

V.  Knox 

1057 

V.  Loomis 

309 

V.  Hi  ley 

583,  706 

V.  Stuyvesant 

1411 

V.  Wheeler 

1666 

Loosemore  v.  Radford 

384,  769 

Lord  V.  Crowell 

1229 

V.  Doyle 

557 

V.  E'liel  Gas  Co. 

86 

V.  Johnson 

1345 

V.  Morris           1146 

1207,  1441,  1509 

866 

Lord  V.  Sill  736 

Lorey  v.  Overton  1630  a 

Loring  v.  Cooke  900,  1088 

Loriug  V.  Maniif.  Ins.  Co.  406,  413  a 

Losev  V.  Simpson      52.3,  527,  536,  541,  555, 
'  556,  560,  562,  564,  581,  586,  593,  842, 

843 
Lossee  v.  Ellis 
Lot  V.  Thomas 
Lothrop's  Case 
Loueks  V.  Van  Allen 
Loiui  V.  Lane 
Louden  v.  Waddle 
Loughridge  v.  Bowland 


Louis  V.  Priest 
Louisville  Banking  Co. 


1603 

68 

1428 

1684 

848,  868,  1307 

910 

466,  546,  548, 

552.  587 

1204 

V.  Leonard         365, 

367,  367  a,  373,  374 

Lounsbury  v.  Catron  1440 

r.  Norton  542,  547, 949  a,  1047  a 

Love  V.  Sierra  Nevada  M.  Co.  130,  169 

1047  a 

Lovejoy  v.  Bowers  120 

V.  Chapman  172 

Lovelace  v.  Webb     364,  370,  372,  373,  375, 

665,  670,  736 

Loveland  v.  Clark  1790,  1840,  1857 

Lovell  V.  Cragin  1701  a 

V.  Farrington 

V.  Leland 

V.  Wall 

Lover  v.  Bessenger 

Loverin  v.  Humboldt  Safe,  &c.  Co. 

Lovering  v.  Fogg 

I'.  King 

Lovett  V.  Dimond 

Loving  V.  Milliken 


Low  V.  Allen 

V.  Anderson 
V.  Fox 
V.  Henry 
V.  Pew 
V.  Purdy 
V.  Smart 
Lowe  V.  Hamilton 

V.  Morgan 
Lowell  V.  Daniels 
V.  Doe 
V.  North 
V.  Shaw 
V.  Wren 
Lowenstein  v.  Phelan 
Lowenthal  v.  McCormick 
Lowery  v.  Peterson 
Lowman  v.  Lowman 
Lowndes  v.  Chisholm 
Lowrey  v.  Byers 
Lowry  v.  Hurd 
V.  Mayo 
V.  Morrison 
V.  Tew 
Low  Street  Build.  Asso.  v.  Zucker 
Lowther  v.  Carlton 
Loy  V.  Home  Ins.  Co. 


1098 
950 
966 
355 
848 
245 
1414 
641,  832 
258,  316,  324,  326, 
715 
1203,  1207,  1509 
113 
990 
241,  288 
136 
1751,  1822 
881 
750 
1368 
1.341 
1522 
1220 
699 
500 
1182a 
877 
217,  218,  229 
870,  871,  873 
1127,  1615 
9GG 


106, 
1521, 


1503 

1743 

1233 

1066 

638 

557 

422,  425 


TABLE   OF   CASES. 


References  are  to  Sections. 


1693 

506 

1164,  1168,  1169 

183 

817,  1469  a 

220,  221,  294,  1479 


Lozo  V.  Sutherland 
Lucas  V.  Claflin 

V.  Dennifon 

V.  Dorrien 

V.  Harris 

V.  Hendrix 

Luce  V.  Am.  Mortg.  Co.  947 

V.  Hinds  *  1432,  1709/; 

Lnch's  Ajrpeal  187,511,513 

Luckey  v.  Gannon  407 

Luckhart  v.  Ogden  1179  6 

Ludington  v.  Gabbert  226 

V.  Harris  644,  745 

V.  Low  748,  750,  758 

Ludlow  V.  Clinton  Line  K.  R.  Co.  465 

V.  Kidd  583 

V.  Lansing  1663 

V.  Ramsey  1800 

Ludwick  V.  Huntzinger  1141 

Luetchford  v.  Lord  619,  805 

Lull  V.  Matthews  54,  687 

Lulu  &  W.  S.  M.  Co.  I'.  Nevin  1543  a 

Lumley  v.  Robinson  1229 

Lumpkin  v.  Williams  1579,  1588 

Lund  V.  Lund  16,245,265,307 

Lundy  v.  Pierson  220 

Luning  v.  Brady  1406 

Lunn  V.  Thornton  149 

Lunsford  v.  Speaks      812,  1829,  1830,  1865 

Lunt  V.  Lunt  804 

V.  Stephens  1442 

Lupton  V.  Almy  1124 

Lurch  V.  Holder  1492 

Lusk  V.  Hopper  226,  229 

V.  McNamer  557 

Lyceum  v.  Ellis  127 

Lvcoming  F.  Ins.  Co.  v.  Jackson  399, 

1799 

Lydecker  v.  Bogert  1229 

Lydston  v.  Powell  1767,  1894 

Lyford  v.  Ross  787 

Lyle  V.  Duucomb        370,  379,  383,  487,  609 

Lvinan  v.  Little  1080,  1440 

V.  Lyman  1092,  1021,  1624 

V.  Russell  591 

V.  Sale  1351 

V.  Smith  606 

Lynch  v.  Baxter  1646 

r.  Cunningham  1185 

V.  Dalzell  401 

V.  Hancock     555,  822,  881,  901,  957, 

958,  1028,  1202,  1208,  1621 

V.  Livingston  497,  500 

w.  Met.  El.  Ry.  Co.  1709  a 

u.  Pfeiffer  848,855,915 

V.  Utica  Ins.  Co.  166 

Lynde  v.  Budd  104,  105 

V.  O'lJonnell  1584,  1585,  1663 

V.  Rowe  436,  439 

Lynn  v.  Richardson  881 

Lyon's  Appeal  793 

Lyon  V.  Elliott  1642 

V.  E wings  134 

V.  I.iV()n  167 

V.  Mcllvaine  89,  627,  661,  848 


Lyon  V.  Perry 

V.  Powell 

V.  Robbins 

V.  San  ford 

V.  Waldo 
Lyons  v.  Bodenhamer 
Lysinger  v.  Hayes 
Lytle  V.  Turner 


M. 


1465 

1440 

1063,  1072,  1089 

1411,  1436,  1558 

626 

542,  586 

1335 

576 


Mabie  v.  Hatiuger  980 

Mabury  v.  Ruiz  1423 

Macaulay  v.  Porter  253,  270,  271 

Macauley  v.  Smith  251,  263,  340,  342  a 

Macclesfield  v.  Fitton  1418 

Macdonald  v.  Walker  1787 

Machette  v.  Wanless  70,  3G7,  460 

Machine  Co.  v.  Moreno  1606,  1606  a 

Machlin  v.  Bank  883  a 

Macintosh  v.  Thurston  375,  473,  537 

Mack  w.  Austin  1715,1718 

V.  Grover  1425 

V.  Weltzar  20 

Mackenzie  v.  Alster  1822 

V.  Gordon  906 

Mackey  v.  Longley  1865 

Mackie  v.  Lansing  1204 

Mackubiu  v.  Boarman  1908 

Macomb  v.  Prentis  1080,  1134 

Macomber  v.  Cambridge  Mut.  F. 

Ins.  Co.  396,  406,  425 

Macomber  v.  Mills  981 

Madden  v.  Floyd  63 

Maddux  V.  Jones  1207 

Madigan  v.  Mead  272,  302,  365 

Madison  A.  Ch.  v.  Oliver  St.  Ch.  126, 

715, 716,  1129,  1131,  1135 
Madison,  &c.  Plank  Road  Co.  v. 

Watertown,  &c.  Plank  Road  Co.  134 

Maeden  v.  Sealey  1526 

Maffet  i;.  Ijams  1677 

Maffitt  V.  Rynd  323,  365 

Magee  v.  Beatty  504 

V.  Carpenter  1769 

V.  Magee  473 

V.  Sanderson  1462,  1465 

Magenau  v.  Bell  917 

Magie  v.  lieynolds  744,  808,  842,  1485, 

1487 

Magill  V.  Dewitt  Co.  Bank  877 

V.  Hinsdale  777 

Magilton  v.  Holister  878 

Magnusson  v.  Charleson  1123 

V.  Johnson  241,  265,  293, 

332,  335 

Magovern  v.  Richard  627 

Magrudcr  v.  Egglestou        1 181,  1344,  1616 

u.  Ofiutt  1414 

V.  Peter  226 

v.  State  Bunk  610,611 

Maguirc  v.  Bis.sell  65 

V.  Park  429,  433,  444 

Mahagan  y.  Mead  1620,1621 

867 


TABLE   OF   CASES. 


References  are  to  Sections. 


Mahn  v.  Hussey 
Mahon  v.  Cooley 

V.  Cruthers 
Mahone  v.  Williams 
Mahoney  v.  Bostwick 
V.  Mackubin 


Maher  v.  Farwell  330,  335 

V.  Lanfiom  644,  742,  T45,  746, 

1190,  1493,  1494 

634 

1207 

1520 

1140,  1615,  1670 

335,  1083 

647,  744,  745, 

1915 

V.  Middleton  540,  1654 

V.  Robbing  1502 

Main  V.  Alexander  465,  495 

V.  Ginthert  1521,  1629 

V.  Schwarzwaelder  428,  433  a 

Mainwaring  v.  Templeman  465 

Mainzinger  y.  Mohr  1198 

Mairs  V.  Bank  of  Oxford  1014 

Major  V.  Holmes  106 

Majoribanks  v.  Hovenden  565 

Majors  v.  Co  well  584 

Makibben  v.  Arndt  1337 

Malcolm  v.  Allen  76,  1186,  1478,  1591, 

1616 

V.  Montgomery  1526 

Malins  v.  Brown  972 

Mallalieu  v.  Wickham  1069 

Mallett  V.  Page  966  a 

Mallory  v.  Farmers'  Ins.  Co.  422 

V.  Hitchcock  848,  870 

V.  Mariner  964  a 

V.  Stodder  458,  504,  559 

V.  West  Shore  R.  R.  Co.  11 83 

Malone  v.  Marriott  684,  1411,  1600 

V.  Roy  244 

Maloney  v.  Earheart  644 

V.  Webb  1849,  1865,  1915 

Malott  V.  Goff  1472 

Man  y.  Elkins  1489 

Mauahan  v.  Varnum  799,  1300 

Manasse  v.  Dinkelspiel  262,  324,  326 

Manatt  v.  Starr  97,  99 

Manaudas  r.  Mann  544.  586 

Mandel  v.  McClare  666 

MandeviJle  v.  Welch  179 

Mangels  v.  Brewing  Co.  1368,  1385 

Mangold  v.  Barlow  504,  517,  519 

Manhagan  v.  Mead  1620,  1621 

Manhattan  v.  Thompson  111 

Manhattan  Co.  v.  Everston  460,  1421 

V.  Osgood  652  a 

Manhattan  F.  Ins.  Co.  v.  Weill  399 

Manhattan  L.  Ins.  Co.  v.  Crawford        738, 

743 

V.  Glover  1718 

Manigault  v.  Deas  1588 

Mankel  v.  Belscamper  893 

Manlove  v.  Bale  284 

Mann  I'.  Best  619,1745,1898,1910 

V.  Cooper  1450,  1711 

V.  Cross  651 

V.  Earle  1253,  1273,  1287 

V.  Falcon  52,  316,  513 

V.  Jennings  1587,  1608 

V  Richardson  1077 

868 


Mann  v.  State 

Manning  v.  Burgess 
V.  Elliott 
V.  Markel 
V.  McClure 
V.  McClurg 

V.  TutBill 
V.  Westerne 
V.  Young 
Mansfield  v.  Gordon 
V.  Gregory 
V.  Mansfield 


66,  1465,  1481 

897,  1088 

1801,  1808,  1821 

1064 

4C0 

1478,  1577,  1590, 

1591 

358,  1080,  1186 

909 

642 

105 

464 

1792 

397 


Manson  v.  Phoinix  Ins.  Co. 
Mansony  v.  U.  S.  Bank  18,  777 

Mansur  v.  Bartholomew  744,  758 

V.  Miller  752 

w.  Willard  1917 

Manufacturers'  &  M.  Bank  r.  Bank       243, 
244,  253,  312 
Manufacturing  Co.  v.  Price  1396 

Manwaring  r.  Jeuison  429 

V.  Powell         736,  744,  869,  878 
Maples  V.  Millon  434,  441,  697 

Mapps  V.  Sharpe  817,  1876,  1910 

Mara  v.  Pierce  544,  586 

Marburg  v.  Cole  913 

March  v.  Lowry  1444 

Marclibanks  i'.  Bank  556 

Marchington  v.  Vernon  761  >« 

Marcy  v.  Diinlap  94,  97 

Marden  v.  Jordan  675,  1116 

Marie  v.  Garrison  1636,  1677 

Marietta  Iron  Works  v.  Lottimer    74,  1141 
Marine  Bank  v.  International  Bank       606, 
607,  1182,  1182  a,  1699 
Markel  V.  Evans  1434,1587 

Markell  v.  Eichelberger  934 

Markey  v.  Langley  186.5,  1866,  1870, 

1872 

Markham  v.  Carothers  315 

V.  O'Connor  734 

Markle  v.  Rapp  936 

Markoe  v.  Andras  221,  229 

Marks  v.  Cowles  116,  117,  1587,  1902  a 

V.  Marsh  1420 

V.  Pell  248,  309,  335,  340,  1153, 

1171 

V.  Sewall  700 

Markson  v.  Haney  1232 

V.  Ide  1485 

Marlatt  v.  Warwick  •  332 

Marling  i;.  Robrecht  1611 

Marlow  v.  Barlew  112,  113,  1440 

Marlowe  v.  Benagh  1721 

Marmon  i'.  Marmon  '03 

Marr  v.  Lewis  728 

Marriott  v.  Givens  1322,  1443,  1773 

V.  Handy  972 

Marryat  v.  Marryat  1225 

Marsh  v.  Austin  393,  701 

I.-.  Hubbard  1868,1882 

V.  Lee  1082 

V.  Marsh  335 

V.  Morton  1841,  1924 


TABLE   OF   CASES. 


References  are  to  Sections. 


Marsh  v.  Nelson  589 

V.Pike  740,741,751,752,755, 

768, 1380, 1713 

V.  Ridgway  1612,  1672 

V.  Russell  1677 

r.  Sheriff  1668,  1670 

Marshall  v.  Billingsly  827 

f.  Davies        358,741,768,1719a 

V.  Dunham  554 

V.  risk  474 

V.  Marshall  1424 

V.  Maury  1333 

V.  Moore  1621 

V.  Pinkham  813 

V.  Reynolds  1490 

r.  Stewart  244,311,1046 

V.  Thompson  302,  340 

V.  Williams  31 1  a,  321,  338, 

1095 

V.  Wing  901  a,  902 

V.  Wood  848,  1361 

Marston  v.  Brackett  603,  624 

V.  Brittenham  1821 

V.  Marston  951,  1227,  1654 

V.  White  1616 

V.  Williams  513 

Martel  v.  Somers  546 

Martendale  v.  Follet  94 

Martens  v.  Gilson  1720 

Martin's  Appeal  982 

Martin  v.  Alter  1769 

V.  Baldwin  1743 

V.  Bank  1606 

V.  Beatty  147 

v.  Bowker  1192,1195,1198 

V.  Cauble  552,  573 

V.  Cent.  L.  &  T.  Co.  967 

V.  Clover  1179 

V.  Davidson  495 

V.  Franklin  F.  Ins.  Co.    408,  1492  a 

V.  Fridley  715,  1075,  1395 

V.  Goldsborough  913 

r.  Harrison  1359 

V.  Jackson  591,  667,  710,  1194, 

1211,  1211a,  1355 

V.  Kelly  874 

V.  Lennon  730 

r.  Martin  332,850,1120 

V.  McNeelv  1879 

V.  McReynolds  817,  1382,  1384 

V.  Morris  1413 

V.  Mowliu  1 1 

V.  Neblett  576,  583 

V.  Nixon  167 

V.  Noble  1395,  1396,  1420 

V.  O'Bannon  1414 

V.  Paxson  1800,  1821,  1827 

u.  Pond  241,244,1444,1716 

r.  Ratcliff  1106,1549 

V.  Reed  1 734 

r.  Righter  683 

i;.  Smith  700,919 

V.  Sonierville  Water  Co.  1320 

V.  Swofford  1714,  1915 

V.  Wade  1337 


Martindale  v.  Smith  886 

Martineau  v.  McCoUum  744,  814,  817, 

834,  842,  904,  1487 

Martinez  v.  Lindsay  1789,  1876  a 

Marts  V.  Cumberland  Ins.  Co.  422 

Marvin  v.  Chambers  612 

V.  Prentice  266,  1095 

f.  Titsworth  62,241,281 

V.  Vedder  944 

Marx  V.  Marx  777 

Marvland,  &c.  Iron  Co.  v.  Wingerfc         935 

Maryland  L.  &  B.  Sec.  v.  Smith  1614, 

1866 

Maryott  v.  Ren  ton  1513 

Mascarel  v.  Raffour  1463 

Masier  v.  Norton  1123 

Mason  v.  Ainsworth  807,  1789 

V.  Barnard  75 

V.  Beach  961,  983 

V.  Black  574 

V.  Dalv  624,  968 

V.  Goodnow  1743,  1841,  1857 

V.  Hearne  244 

V.  Ins.  Co.  1051  a 

V.  Johnson  115 

V.  Lord  642,  842,  1494 

V.  Mason  668.  1298 

V.  Moody  60,  267 

r.  Pavne  1621 

V.  Philbrook  525,  734 

V.  Pierce  644 

V.  Wait  1646 

V.  York  &  C.  R.  R.  Co.      138.5,1789 

Mass.  Hosp.  L.  Ins.  Co.  v.  Wilson  777 

Mass.  Mut.  L.  Ins.  Co.  o.  Boggs  642  a 

Massaker  i-.  Mackerley  1190,  1489 

Massey  v.  Citizens'  Build.  Asso.        134,  168 

V.  Hubbard  586 

V.  Papin  138,  679 

V.  Westcott  465 

V.  Young  1652 

Massie  v.  Sharpe  1699,  1700 

V.  Watts  1774a 

V.  Wilson         1620,  1626,  1680,  1812 

Master  v.  Miller  90 

Masterson  v.  Cohen  224 

V.  Pullcn  218 

I'.  W.  End.  R.  R.  Co.  593 

Matcalm  v.  Smith  1395 

Mateskey  v.  Feldman  597 

Matheney  r.  Saudford       319,  326,  328,  329 

Mather  v.  Fraser  448,  450 

V.  Jarel  _500 

V.  Jenswold  874  rf 

Mathes  V.  Cover  1654 

Matheson  u.  Clark  1928 

V.  Thompson  1406 

Mathew  v.  Biackmore  1225 

Mathews  v.  Aikin  525,  737 

V.  Heyward  842 

i;.  Light  '1 

r.  Sheldon  H7 

V.  Switzler  1699 

V.  Toogood  650,  653 

Mathewson  v.  West.  Assurance  Co.         419 

8GU 


TABLE    OF   CASES. 


References  are  to  Sections. 


Matson  v.  Capelle 

V.  Swift 
Mattel  V.  Conant 
Matteson  v.  Duryee 
i;.  Matteson 
V.  Morris 
V.  Thomas 


630 

890 

1928,  1929,  1940 

1693,  1940 

1466 

1455,  1487,  1490 

874,  1333,  1620, 

1621,  1624 

Matthews  v.  Daniels  1883 

V.  Demeriitt  586 

V.  Diii-Kce  1693 

V.  Fidelitv  T.  Co.  874,  881 

V.  Porter'  291,  329,  335 

V.  Preston  1522 

V.  Sheehan  272,  279 

V.  Wallwyn  1487 

V.  Warner  663,  788,  817 

Matthie  v.  Edwards  1829,  1864,  1906 

Mattison  v.  Marks  1086 

Matzen  v.  Shacffer  865 

Matzon  v.  Griffin  433,  453 

Maul  V.  Eider  523,  546,  548,  552 

Maulden  v.  Armistead  151,  1790 

Manle  v.  Beanfort  1406 

Maulsby  V.  Barker  1824,  1838 

Maupin  v.  Emmons  253,  544,  545,  548, 

580 

Mans  V.  McKellip  1606  b 

Mavrich  v.  Grier  1397,  1421,  1424 

Maxfield  v.  Bnrton  552,  560 

V.  Patchen  252,  293,  338 

V.  Willey  713,  1134 

Maxwell  v.  Brooks  572 

V.  Hartmann  504,  613,  1211  a 

V.  Monntacute  284,  321 

V.  Newton  1839,  1881,  1905, 

1915 

May  V.  Borel  560 

v-  Council  734 

V.  Fletcher  1202,  1421 

V.  Flint  642 

V.  Gates  1063,  1064 

V.  Le  Claire  560 

V.  May  1633,  1669,  1676 

V.  Rawson  1331 

V.  Wilkinson  233 

Mayhin  v.  Kirby  552,  842 

Maybnrry  v.  Brian  469 

Mayer  v.  Adrian  1093 

V.  Farmers'  Bank  1051 

V.  Grottendick  382,  384,  924 

V.  Salisbury  1708 

V.  Wick  1608 

Mayes  w.  Robinson  817 

Mayhem  v.  Coombs  465,  504,  539 

Mayhew  v.  Crickett  883,  1068 

V.  Hardesty  785 

Maynard  r.  Hunt    '       889,891,892,901a, 

972,  1298,  1304 

V.  Maynard  501 

Mayo  V.  Fletcher  667,  670,  771 

V.  Leggett  585 

V.  Merrick  819 

V.  Tomkies  1414,  1418 

Mayor  v.  Williams  552 

870 


Mayre  v.  Hart 
Mays  V.  Fritton 
Maze  V.  Burke 
McAdow  17.  Black 
McAfee  v.  McAfee 
McAlarney  v.  Paine 
M'Alister  v.  Jerman 
McAllister  r.  Plant 
McAlpin  V.  Zitzer 
McAnnulty  v.  Seick 
McArthur  v.  Franklin 
V.  Martin 
r.  Scott 
McAteer  v.  McAteer 


636 

1232 

462,  463,  608 

467,  495 

981 

625 

644.  1493 

1382, 1454, 1773 

680, 1440 

282 

1067,  1407,  1420 

728,  1632 

706 

64,314,  384,  612 


McBride  v.  Farmers'  Bank  1389 

V.  Wrijiht  957,  1365 

McBurney  v.  Wellman  241,  331 

McCabe  v.  Bellows         666,  792,  1067,  1098 

V.  Farnsworth  791 

V.  Grey  523 

V.  Swap  666,  740,  861,  866 

McCahan  v.  Columbia  Bldg.  Asso.  638 

McCall  V.  Mash  1876,  1876  a 

V.  Yard  591,  1395,  1396 

McCallam  v.  Pleasants  1218 

McCalley  v.  Otey         892,  1801,  1803,  1806 

McCamant  v.  Roberts  242,  272 

McCammon  v.  Worrall  978 

McCandless  v.  Engle  500,  787,  828 

McCanu  v.  Hill  629 

y.  Mortgage  Co.  1811 

McCarlev  v.  Tippah  County  1807 

M'Carogher  y.  Whieldou  1791 

McCarren  v.  Googan  1 1 70 

McCarron  v.  Cassidy  261,  287,  1127 

McCarthy  v.  Garraghtv  1710 

i;.  Graham  ■  1351,1709  a 

V.  McCarthy  339 

V.  Nicrosi  598 

V.  Peake  1526 

V.  White  1509 

McCarty  v.  Bracken  ridge  83  a 

V.  Chalfant  365,  372,  374 

McCasland  v.  JEtna  L.  Ins.  Co.  1464 

McCasliu  V.  State  226,  237,  240,  684 

McCaughrin  v.  Williams         351,  353,  355, 

357 

McCauley  v.  Smith  267,  272 

M'Clanahan  v.  Chambers  822 

McClane  v.  White  277,  282,  302 

McClaskey  v.  O'Brien  870 

McClaughry  v.  McClaughry  956 

McClellan  v.  Sanford  320,  335 

McClelland  i7.  Bishop  1183 

McClenny  v.  Floyd  316 

McClintic  v.  Wise  229,  230,  1699,  1701 

McClintock  V.  McClintock  277,  331 

McClure  v.  Andrews  874  a,  943 

V.  Btirris  479 

V.  Engelhardt  1652 

V.  Holbrook  679,  1440 

V.  Owens  1214 

V.  Roman  372 

V.  Smith  243 

McClurg  V.  Phillips  168,  492 


TABLE   OF   CASES. 


References  are  to  Sections. 


McClurkan  v.  Thompson  250,  312 

McCoUum  V.  Hinckley  883  a 

McComb  V.  Barcelona  Appart.  Asso.      127, 

377 

V.  Spangler  112,  1439,  1440, 

1589 

V.  Wright  1613 

McConeghv  v.  McCaw  665 

McConihe  V.  Fales         735,  744,  1492,  1496, 

1500 

V.  McClurg  926 

McConkey  v.  Laub  1335 

McConneaughey  v.  Bogardus  1868 

McConnel  y.  Holobush  1114 

McConnell  v.  Beattie         218,  229,  232,  236 

V.  Blood  441,444,445,446, 

447 

V.  Scott  1187 

McCormack  v.  James  456 

McCormick  v.  Bauer  482 

j;.  Digby         814,  913,  924,  986 

V.  Herndon  320,  325,  335 

V.  Irwin  874 

i;.  Knox  1135,1137 

V.  Leonard  554 

V.  Wheeler  562,  565 

V.  Wilcox  1580 

McCormick  Machine  Co.  v.  Scovell  1 13 

McCotter  v.  Jay  1636,  1668,  1673 

McCov  V.  Boley  1473 

V.  O'Donnell  1450 

McCrackan  v.  Valentine  1467,  1588 

McCracken  v.  Hay  ward  1321 

McCrackin  v.  Wright  679 

McCrady  v.  Brisbane  1504 

McCraney  v.  Alden  620,  634,  657,  658 

McCrary  v.  Austell  1464 

McCrea  v.  Newman  574,  579,  739  a, 

1350 
McCready  v.  Harris  1233 

McCreery  v.  Schaffer  83  a 

McCrossen  v.  Harris  1080 

McCue  V.  Smith  177 

McCulla  V.  Beadleston  792,  1086,  1805 

McCulloch  V.  Ind.  Mut.  F.  Ins.  Co.  422 

McCuilough  V.  Colby  1478 

McCullnm  ?;.  Turpie  1621 

McCumber  v.  Oilman  1126,  1333 

McCiirdy's  Appeal  127,  1355,  1443 

McCurdy  v.  Agnew  788 

V.  Clark  1701a,  1742 

McCusker  v.  McEvey  529 

McDaniel  v.  Austin  1472 

McDaniels  v.  Colvin         343,  364,  367,  368, 

372 

V.  Flower  Brook  M.  Co.        495, 

869 

V.  Lapham  918 

M'Dermot  v.  Laurence  606 

McDermott  v.  Burke  776 

McDevitt  V.  Sullivan  1659 

McDonald  t;.  Black  401 

V.  Huff  87 

V.  Hulse  926 

V.  Kellogg  296,  326,  327 


McDonald  v.  McDonald  924 

V.  McLeod  266,  310 

y.  Mobile  L.  Ins.  Co.  117 

V.  Sims  1195 

I'.  Vinson  1773 

V.  Whitney  1621 

.M'Donough  v.  O'Niel  300,  332 

i;.  Shewbridge  1108 

V.  Squire  300,  342 

McDougal  V.  Downey  1577 

McDougald  v.  Capron  1059,  1066 

McDowall  V.  Reed  1397 

McDowell  I'.  Fisher  612,1490 

V.  Hendrix  777 

V.  Jacobs  1381 

V.  Laer  758 

V.  Lockhart  459 

V.  Lloyd  1335,  1577,  1707 

McElhaney  v.  Shoemaker  848,  873 

M'Elmoyle  v.  Cohen  1204 

McElmurray  v.  Ardis  1334 

McElrath  v.  Pittsburg  &  S.  R.  R.  Co.    1355, 

1383,  1443 

M'Ewen  v.  Welles  950,  1326,  1567 

McFadden  v.  Allen  428,  436 

V.  Fortier  1355 

V.  State  353 

V.  Worthington  465 

McFarland  v  Garnett  1618 

McGan  v.  Marshall  250 

McGavrock  v.  Deery  574 

McGean  i;.  Ry.  Co.  1709  a 

McGee  ?;.  Davie  1711 

V.  Fltzer  151 

V.  Smith  1654,  1655 

V.  Wallis  874 

McGehee  1-.  Gindrat  551,553 

V.  Lehman  1420,  1464 

McGill,  iHre  1504 

McGill  u.  Griffin  1606  a 

V.  Ware  652  a 

McGiven  v.  Wheelock  848,  863,  876, 

943,  948,  951 

McGlaughlin  v.  O'Rourke  1226 

McGough  V.  Sweetzer  1067,  1075,  1420 

McGovern  v.  Union  Mut.  L.  Ins.  Co.     642  a, 

1845 

McGowan  v.  Branch  Bank  1322,  1391, 

1443,  1773 

V.  Smith  468 

McGown  V.  Sandford  1634 

«;.  Wilkins  1646  «,  1663 

M'Gown  i>.  Yerks  1396,1419 

McGready  v.  Harris  1233 

V.  McGready  3.53 

McGregor  v.  Hall  1769 

V.  McGregor  583,  1381 

V.  Matthis  229 

)'.  Mueller  1499 

McGuckin  V.  Kline  1492 

McGulfey  v.  Finley  1373 

V.  McClain  881 

McGuirc  v.  Barker  458,  1732 

V.  Van  Belt  138,  644,  1112, 

1785,  1787,  1789 

871 


TABLE   OF   CASES. 


References  are  to  Sections. 


McHan  v.  Ordway 
McHany  v.  Schenk 
McHenry  v.  Cooper 

V.  La  Socie'te  Franoaise 


McHugh  V.  Smiley 

V.  Wells 
McIIvain  v.  Mut.  Ass.  Co. 
Mclndoe  v.  Morman 
Mflntier  v.  Shaw 
Mclntire  v.  Norwich  F.  Ins 

V.  Parks 

V.  Plaisted 

V.  Yates 
Mclntyre  v.  Humphreys 

V.  Velte 

V.  Whitfield 

V.  Williamson 
Mclver  v.  Cherry 
McKamey  v.  Thorp 
McKay  v.  Wakefield 
McKeage  v.  Hanover  F.  Ins.  Co. 


1440 
1861,  1913, 1922 
14.30 
12.31, 
1232 
30.5 
10.51 
530,  723,  982 
236, 1541 
245,  250,  1064 
Co.  424 

1091 
421 
1606  a 
309,  335 
94 
668 
976 
1388, 1414 
460 
1414,  1464 
433  a 


McLaughlin  v.  Hanley 
V.  Hart 
V.  Ihmsen 
V.  Shepherd 

M'Laurin  v.  Wright 

McLaws  V.  Moore 

McLead  v.  Mnv<i  L.  Ins.  Co 

McLean's  Appeal 

M'Lean  i'.  Burr 
V.  Clapp 
V.  Lafayette  Bank 


McKean  Land  Imp.  Co.  v.  Mitchell       488, 

507 
597,  600 
352  a 
591 
966  a 
465 
1.527 
220 
841,  1106 
1496 


M'Kecknie  v.  Hoskins 
McKee  v.  Jordan 
i;.  Wilcox 
McKeen  v.  Haseltine 
i;.  Sultenfuss 
McKellar  v.  Rogers 
McKelvain  v.  Allen 
McKenna  v.  Kirk  wood 
McKensie  v.  Farrell 
McKenzie  v.  Baldridge 
McKernan  v.  Neff 
McKcrnan  v.  Robinson 
M'Kibben,  in  re 
McKim  V.  Mason 
McKiuney  v.  Miller 


McKinnon  v.  Lessley 
McKinster  i'.  Babcock 
McKinstry  v.  Conly 

V  Mervin 
McKinzie  v.  Perrill 
M'Kircher  v.  Hawley 
McKissick  v.  Colqulioun 


237 

1425,  1431,  1646 

1351 

446 

34,  446,  449,  670 

278,  379,  577,  1375, 

1457,  1621 

889 

350,  367  a,  379 

340,  712 

1081, 1563 

544  ,  586 

771 

510 


Mill  Owners'  Mut.  F.  Ins. 
Co. 


McKisson  v.  Davenport 
McKleroy  v-  Tulane 
McKnight  v.  Wimer 
McKomb  V.  Kankey 
McLain  v.  Smith 
McLanahan  v.  Reeside 
McLane  v.  Abrams 
V.  Paschal 
V.  Piaggio 
McLaren  v.  Clark 

r.  Hartford  F.  Ins.  Co 
V.  Hutchinson 
McLarren  v.  Thompson 
McLaughlin  v.  Cosgrove 
V.  Curtis 
V.  Green 

872 


425 

1193 

236 

1788 

1665 

1323 

529 

74,  1141, 1606 

1759,  1769, 1792 

1478,  1663 

244,  292,  342  c,  639 

398,  425 

761  a 

515 

617,  646,  1264 

1063 

680 


1756 

731,  1632 

474,  1355 

245,  597 

310 

1493 

113 

822 

1596 

600 

722,  726,  728, 


966,  1380,  1628,  1930 
V.  Presley     1180,  1459,  1520,  1860, 
1876 
1087 
1086,  1380 
1187, 1213 
1.500,  1502 
1503 
711,  712 
460,  548,  552 
1806 


V.  Tompkins 
V.  Towle 
V.  Ragsdale 
McLelland  v.  Cook 
McLemore  v.  Mabson 
McLeod  V.  BuUard 

V.  First  Nat.  Bank 
V.  Jones 


McLoon  V.  Smith 
McLouth  V.  Hurt 
McLuie  ?'.  Melton 
McMahon  v.  Kussell 


V.  Schoonmaker 
McMaster  v.  Campbell 
McMasters  v.  Wilhelm 
M'Mechan  v.  Grilling 

McMeel  v.  O'Connor 
M'Menomy  v.  Murray 
McMillan  v.  Baxley 
V.  Bi.-sell 
V.  Jewett 
V.  McCormick 


75,  1182  a,  1439,  1483 

99,  517 

876 

25,  666,  866,  869 


43 

627 

842 

553,  586,  588,  591, 

593 

1772 

281 

1902  a 

301,  335 

251,  265,  286,  711 

1207 


V.  N.  Y.  Paper  Co. 
V.  N.  Y.  W.  P.  P.  Co. 
V.  Otis 
V.  Richards 


McMillen  v.  Rose 
McMinn  v.  O'Connor 
McMuUen  v.  Neal 
M'Murphy  v.  Minot 
McMurray  v.  Brasfield 
V.  Connor 
V.  McMurray 


McMurlry  v.  Temple  Co 
McNab  V.  Young 
McNair  v.  Lot 

V.  Picotte 

V.  Pope 
McNamara  v.  Culver 
McNamee  v.  Iluckabee 
McXeal  v.  Auldridge 
M'Neely  v.  Rucker 
McNees  v.  Swaney 
McNeil  V.  Call 

V.  Miller 
V.  Polk 
McNeill  V.  McNeill 

V.  Norsworthy 


7,  429 
97 
668,  702 
20,  889,  1085,  1543, 
16.54 
231 
488 
726,  883 
42,  785 
1646  a 
621 
913,  916,  1442  a, 
1668,  1674 
1436 
90,  91,  92,  974 
1144.  1195 
889,  973 
335, 1915 
257,  261,  264,  265 
458 
319,  335 
500 
268 
1265,  1266,  1269 
874,  874  a,  876 
594 
1636 
279 


TABLE   OF   CASES. 


References  are  to  Sections. 


McNew  r.  Booth  1053 

McNitt  V.  Turner  467 

McPherson  v.  Cox  1771 

V.  Hayward  136,  331,  340, 

1063, 1144,  1149,  1152,  1158 

V.  Housel  583,  1411 

V.  Rollins  523,  524,  956 

V.  Sanborn  500,  1862 

McQnade  v.  Rosecrans  619,  620 

McQueen  v.  Farquhar  559 

McQuie  V.  Peay  83,  90,  163,  168 

McKea  v.  Cent.  Nat.  Bank      429,  435,  444, 

V.  McMinn  586 

McReynolds  v.  Munns  1579 

McRoberts  v.  Conover  1051 

McShirley  v.  Birt  557,  1621 

McSorley  v.  Hughes  266 

V.  Larissa  811,  1128 

McTaggart  v.  Smith  1693 

M'Vay  V.  Bloodgood  822,  1699 

McVeigh  v.  Sherwood  1621 

Mc Vicar  v.  Denison  650 

McWilliams  v.  Brookens  237 

V.  Withiugton  1668 

Meacham  v.  Steele  530,  723,  982,  1072, 

1620,  1829,  1857 

Mead  v.  Leavitt  1487 

V.  McLaughlin  1871 

V.  N.  Y.,  H.  &  N.  R.  R.  Co.    463,  466, 

1444 

V.  Orrery  667,  670 

V.  Randolph  316 

V.  York  943,  944 

Meade  v.  Gilfovle  586 

Meaden  v.  Sealey  1519,  1526 

Meader  v.  White  623 

Meador  v.  Meador  185 

Meadows  v.  Hawkeye  Ins.  Co.  424  a 

Meads  v.  Hutchinson  113 

Meagher  v.  Hayes  428 

Meaher  v.  Howes  1095 

Means  v.  Rosevear  1670 

Meath  v.  Porter  1909 

Mebane  v.  Mebane  1424,  1586,  1608, 

1637 

Mechanics'  Bank  v.  Bank  822,  1701 

r.  Goodwin  120 

Mechanics'  Build.  Asso.  v.  Ferguson      966, 

1008 

Mechanics'  Sav.  Bank  v.  GofF  762 

Medley  v.  Elliott         838,  1200,  1202,  1211, 

1211  a,  1414 

V.  Mask  1061 

Medsker  v.  Parker  1629 

v.  Swaney  1881,1917 

Meech  v.  Ensign  755 

V.  Lee  626 

Meehan  i'.  Forrester        309,  339,  341,  1060 

V.  Williams  5'JO,  591 

Meeker  Co.  Bank  c.  Young  817,  820  a 

Meers  v.  Stevens  642  a 

Megary  v.  Funtis  964 

Mehlhop  V.  Pettibonc  627 

Meier  v.  Blums  547,  548,  560 

t.  Kelly  464,1193 


Meier  v.  Meier            1054, 

1180, 

1624,  1674, 

1846 

1865,  1922 

Meigs  V.  McFarlan 

1107,  1113 

V.  Willis 

1440 

Mcily  V.  Wood 

119 

Meley  r.  Collins 

987 

Metl  0.  Moony 

1490 

Mellen  ik  Whipple 

761  a 

Mellish  V.  Robertson 

1060 

Mellison  v.  Allen 

177 

Mellon's  Appeal 

509 

Mellon  V.  Lemmon 

242 

Melton  V.  Coffelt 

237 

V.  Turner 

510 

Melvin  v.  Fellows 

71,  350,  380 

Menard  v.  Crowe 

1845 

1904,  1922 

Mendenhall  v.  Hall 

680 

V.  Steckel 

97,  1503 

Meng  V.  Houser 

1621 

Menges  v.  Oyster 

1355 

Meni  v.  Rathbone 

458 

Menken  v.  Taylor 

230,  232 

Menzies  v.  Lightfoot 

365 

Mercantile  Mut.  Ins.  Co.  v.  Calebs  411 

Mercantile  Trust  Co.  v.  Residence  Co.    1337 
i'.  Mo.  Ry.  Co.    1606/) 
Mercantile  T.  &  D.  Co.  v.  Pickerell         991 
Merced  Bank  v.  Rosenthal  375 

Mercer  v.  Tift  908 

Merch  v.  Lee  626 

Merchant  r.  Woods  1799,1898 

Merchants'  &  Mech.  L.  &  B.  Asso.  v. 

Jarvis  113 

Merchants'  Bank  v.  Thomson      1413,  1420. 
1421, 1439,  1440,  1445,  1589, 
1642,  1645 
Merchants'  Ex.  Nat.  Bank  v.  Commer- 
cial Warehouse  Co.  1494 
Merchants'  Fire  Ins.  Co.  v.  Grant  105 
Merchants'  Ins.  Co.  v.  Hinman               1710 
V.  Marvin                 1604 
Merchants'  Nat.  Bank  v.  Hall                  384 
V.  Ravmoud       1466, 
1718 
Merck  v.  Mortgage  Co.                  642,  642  b, 

1606  a 
Meredith  v.  Lackey  1425 

Meriam  v.  Brown  436 

Meriden  Sav.  Bank  v.  Home  Ins.  Co.    408, 

413 

Meriwether  !'.  Craig  1618 

Meroney  v.  Atlanta  L.  Asso.  657,  1808 

Merriam  y.  Barton  1127,1192 

V.  Goodlett  1193 

V.  Goss         1116,  1126,  1128,  1129 

V.  Harscn  495 

V.  Merriam  1262,  1273,  1287 

Merrian,  ex  parte  1621 

Merrick  v.  Wallace  490,  517 

Merrifield  v.  Baker  417 

Merrill  y.  Bullock  <>71 

V.  Chase  886,  946,  947 

V.  Green  761 

Merrills  v.  Swift  70,  343,  502 

Merriman  v.  Hyde  474,  1395,  1406 

873 


TABLE   OF   CASES. 


References  are  to  Sections. 


Mcrriman  v.  Moore 

Merrit  v.  Bowen 
Merritt  v.  Bartholick 


r38,  749,  750,  758, 

760,  762 

702 

44,  804,  805,  806, 

1376,  1469  a 

262,  332 

1414 

1521,  1531  a,  1536 

1496 

824 

1063,  1072,  1120 

218,  1449 


V.  Brown 
V.  Daffin 
V.  Gibson 
V.  Gouley 
V.  Harris 
V.  Hosmer 
V.  Jndd 

V.  Lambert  893 

V.  Northern  R.  R.  Co.  593 

V.  Phenix  1403 

V.  Simpson  102 

V.  Wells  1378 

Mershon  v.  Mershon  683 

Mersman  v.  Werges  113 

Merlins  v.  Joliffe  559 

Mertz's  Appeal  917 

Mervin  v.  Lewis  1786 

Merwin  v.  Star  F.  Ins.  Co.  406 

Meserole  v.  Leary  99 

Mesick  v.  Sunderland  523 

Meskimen  v.  Day  495 

Messervey  v.  Barelli  1620 

Messiter  v.  Wright  1067 

Metcalfe  r.  Pulvertoft  1411 

Methodist  Episc.  Church  v.  Schulze        126 

Metropolitan  Bank  v.  Godfrey        344,  374, 

460 
V.  Oiford  1099 

Metropolitan  T.  Co.  v.  N.  Y.  &c.  R.  R. 

Co.  761  a 

V.  Tonawanda,  &c. 

R.  R.  Co.       1439 
504,  508 
742,  942,  1715 
1325, 1620 
1723,  1864. 1868 
1633 
487 
71,  652 


Metts  V.  Bright 
Metz  V.  Todd 
Mevey's  Appeal 
Mewburn  v.  Bass 
Meyer  v.  Bishop 

V.  Construction  Co. 

V.  Giaeber 


V.  Huneke  94 

t;.  Jefferson  Ins.  Co.  1873,1915,1921 
r.  Johnston  157,161,452 

u.  Kuechler  1793,1915 

V.  Lathrop  742  a,  926,  932 


1835 


634 
1912 
1633 
1668 
1806 
250,  310 
500 


V.  Muscatine 
V.  Opperman 
V.  Patterson 

V.  Utah  &  P.  Val.  Ry.  Co, 
Meysenburg  v.  Schlieper 
Miami  Exporting  Co.  v.  Bank 
Micheuor  v.  Cavender 
Michie  v.  Jeffries  1362,  1448,  1860 

Michigan  Air  Line  Ry.  Co.  v.  Barnes    681  a 
Michigan  Ins.  Co.  v.  Brown      70,  345,  367, 
1204,  1206,  1402,  1404, 
1.509,  1715,  1719 
Michigan  Mut.  L.  Ins.  Co.  v.  Conant     544, 

548 
Michigan  State  Bank  v.  Trowbridge    1377, 

1383,  1434 

874 


Michoud  V.  Girod  1876 

Mickle  V.  Maxfield  1454,  1616,  1625, 

1709  a 

V.  Rambo  1631,  1691 

Mickles  v.  Dillaye        864,  1127,  1128,  1751, 

1902 

V.  Townsend  14,  842,  865,  867 

Mickley  v.  Tomliuson  1583,  1620 

jNIicon  V.  Ashurst  241,  268,  617,  1215 

Middaugh  v.  Bachelder  748 

Middlebrooks  v.  Warren  468 

]\Iiddlesex  v.  Thomas  966,  966  a,  969 

Middletown  Sav.  Bank  v.  Bacharack      680 

V.  Bates  22 

Midleton  v.  Eliot  1123  ?» 

Mildred  v.  Austin  1069 

Miles  V.  Blanton  5.54 

r.  Gray  '        817 

V.  King  466 

V.  Skinner  1742 

V.  Smith  1414,  1422 

V.  Stehle  1540 

V.  Wheeler  1876 

Milholland  v.  Tiffany  610,  874  r 

Millandon  v.  Brugiere  1605 

Millard  i-.  Baldwin  761  a 

V.  Truax        663,  1128,  1134,  1141, 

1923  a 

Miller  v.  Aldrich  400,  402 

V.  Ansenig  318  a 

V.  Auery  1502 

V.  Billingsly  761  « 

V.  Bingham  551,  603 

V.  Bradford  .  515 

?-.  Burroughs  1141 

V.  Cappel  817 

V.  Case  1610 

V.  Clark  1785,  1786 

V.  Collyer  1642,  1643 

V.  Cook  728 

I'.  Curry  1116,1117,1126,1127, 

1134, 1137 

V.Donaldson  919 

V.  Easier  743 

V.  Fichthorn  861 

V.  Finn  870,  1439,  1646 

V.  Gregory  1502 

V.  Hamblet  "  1361 

I'.  Hardy  1232 

V.  Henderson  1373,  1375 

r.  Hicken  805,  972 

1-.  Hull      1634,  1852,  1873,  1874 

r.  Kendrick       1618,  1639,  1672 

V.  Kolb  98,  1609 

V.  Lanham  1670,  1840 

V.  Earned  817,  838 

V.  Lincoln  1123 

V.  Lindsey  872 

V.  Lock  wood  64,  612 

r.  Mackenzie  1377  0,1383 

V.  Marx  500 

V.  McCarty  1632, 1632  « 

r.  McDonald  1792 

V.  McGuckin  2.50 

V.  Marckle  841 


TABLE    OF   CASES. 


References  are  to  Sections. 


Miller  v.  Moore  165 

V.  Kcmley  1459 

V.  Kogers  1621,  1631 

V.  Kutland  &  Wash.  R.  R.  Co. 

127,  156,  161,  169,  653,  821 
V,  Sharp  1587 

V.  Smith  341 

V.  S perry  584 

V.  Stokely  310 

V.  Thatcher  316 

V.  Thomas  266,  279,  282,  293 

r.  Thompson        744,755,1404,1713 
V.  Tiffiiny  659  a 

V.  Tipton  136 

V.  Wack  726,  966 

V.  Ware  515 

V.  Washington  Sav.  Bk.       822,  1701 
V.  Whittier  377,  1084 

V.  Wilson  431 

V.  Winchell  758,  876 

V.  Yturria  316,  335 

Millett  v.  Davey  1123  6,1125 

Milligan's  Appeal  878,  1621,  1622 

Millikeu  v.  Bailey  1050,  1123 

V.  Ham  84 

Millikin  v.  Armstrong  429,  445 

Milliman  v.  Neher  150 

Millington  v.  Hill  744,  745 

Mills  y.  Banks  129 

V.  Carrier  1496 

V.  Comstock  514 

V.  Darling  244 

V.  Dennis  1539,  1564,  1572,  1573 

V.  Fowkes  906 

V.  Hamilton  777 

V.  Heaton  717,  777 

V.  Jennings  1083 

V.  Kellogg  •  908 

V.  Mills  251,  289,  341 

V.  Ralston  1637,  1647 

V.  Shepard  65,  681  a,  699 

W.Todd  1189 

V.  Van  Voorhies  468,  1067,  1420, 

1421,  1645 
V.  Watson  740,  768 

V.  Williams  1915 

V.  Wilson  657 

Mills  Co.  Nat.  Bank  v.  Perry  1606  a 

Millsaps  V.  Bond  1620,  1629 

Millspaugh  v.  McBride  848,  869 

Milroy  v.  Stockwell  1382,  1415 

Miltenberger  v.  Logansport  Ry.  Co. 

1439,  1524 
Milton  V.  Colby  142 

Milwaukee  &  Minn.  R.  R.  Co.  /•.  Mil- 
waukee &  West.  R.  R.  Co.  159 
Milwaukee  &  Minn.  R.  R.  Co.  v.  Sout- 

ter  1537 

Milwaukee  &  S.  P.  R.  R.  Co.  v.  Milw. 

&  M.  R.  R.  1535 

Mims  V.  Mims  517,  1405,  1412,  1514 

Miner  v.  Beekman       812,  1047,  1095,  1128, 

1147,  1156,  1158,  1395 

V.  Hess  ■5'^5 

V.  Smith  1404 


Miner  v.  Stevens  718,  721 

Miners'  Trust  Bank  v.  Roseberry  1493 

Mines  v.  Moore  1459 

Mingus  V.  Condit  460 

Minkler  v.  Minkler  702 

Minnesota  Co.  v.  St.  Paul  Co.        452,  1672 
Minnock  v.  Ins.  Co.  408 

Minor,  ex  parte  1638,  1653 

Minora.  Hill  1459,1699,1700 

V.  Wilioughby  555 

f.  Woodbridge  1060 

Minot  V.  Eaton  1470 

V.  Sawyer  1105,  1296,  1300 

Minton  v.  R.  R.  Co.  1060 

Mirick  v.  Hoppin  774 

Miskclly  v.  Pitts  242 

Mississippi  Val.  Co.  v.  Chicago,  St.  L. 

&N.  O.  R.  R.  Co.  4.56,465 

Mississippi  Val.  &  West.  Ry.  Co.  v.  U. 

S.  Express  Co.  670 

Missouri  Val.  L.  Co.  v.  Barwick  1658 

Mitchell  V.  Amador  C.  &  M.  Co.  152 

V.  Aten  558,  603 

r.  Bartlett  669,1516,16.53, 

1659 

V.  Black  146 

V.  Began        687,  1202,  1414,  1757, 

1767 

V.  Burnham  16,  72,  353,  803, 

1088,  1240 

V.  Butt  874  a 

V.  Clark  941 

V.  Cook  791 

V.  Coombs  943 

V.  Fullington  292 

V.  Gray  1570 

f.  Ireland  1574 

r.  Ladew  1699,1703 

V.  Lyman  652  a 

V.  McKinney  1615 

V.  Nodaway  1800,  1851 

V.  Roberts  886 

V.  Smith  583 

V.  Wade  166 

V.  Wellman  258,  335 

r.Winslow  149,152,153 

Mitchelson  v.  Smith  1632 

Mitzner  v.  Kussel  612 

Mix  V.  Andes  Ins.  Co.  397 

V.  Cowles  367,  1057 

V.  Hotchkiss  358,  409.  878, 

V.  Madison  Ins.  Co.  641,  657 

Mixer  r.  Bennett  1469 

V.  Sibley  1800 

Mixter  v.  Woodcock  138 

Mize  V.  Barnes  220,  472 

Mjones  v.  Bank  1 606 

Mobile,  &c.  Co.  v.  Huder  1621 

.      V.  Talman  166,  1482 

Mobile  Bank  v.  Tishomingo  Sav.  Bank 

513 
Mobile  Build.  &  L.  Asso.  v.  Robertson 

265,  266,  279 
Mobile  Sav.  Bank  v.  McDonnell  627 

Mobray  r.  Leckio  76,1181,1180 

875 


TABLE   OF   CASES. 


References  are  to  Sections. 


Model  Lodging  House  Asso.  v.  Boston 

850,  1840,  1853,  1854,  1856, 1866 
Moffat  V.  Hardin  842 

Moffitt  V.  Bulson  177 

i\  Maness  1469  a 

V.  Koche  1459 

Mogan  V.  Carter  1743 

Mogg  t\  Baker  152 

Mohler's  Appeal  1701  a 

Mohn  V.  Hiester  1309 

Moisant  v.  McPhee  244,  288 

MoUer,  in  re  358,  1232 

Molly  V.  Ulrich  312 

Monaghan  Bay  Co.  v.  Dickson      627,  630  a 
Monell  V.  Lawrence  1351 

Money  v.  Dorsey  219 

Monkhouse  v.  Corporation  1563 

Monnett  f.  Sturges  1141 

Monroe  v.  Fohl  911,  1182,  1606 

i\  Poorman  500 

Montague   v.  Boston  &  A.  R.  R.  Co. 

1123, 1129, 1133, 1135, 1140 

V.  Dawes  1215,  1783,  1784, 

1796,  1798,  1842,  1863,  1883, 

1898,  1899,  1906 

i;.  rhiilips  1112 

Montgomery,  ea:  joa/te  429 

Montgomery  v.  Bruere  16,  43 

V.  Bvers  583 

V.  Chadwick   261,  265,  1122, 

1124,  1128,  1144,  1152 

V.  Dawes  1883 

V.  Ewen  1804,  1815 

V.  Keppel  541,  548,  552 

V.  Merrill  1658 

V.  Middlemiss  1653 

V.  Scott  625 

V.  Spect         288,  324,  325,  326 

V.  Tutt  1429,  1579,  1663 

V.  Vickery  848 

Moody  r.  Dryden  84,  85,  501 

V.  Funk  1051c,  1335 

r.  Haselden  1631 

V.  Wright  149,  152 

Moogr.  Strang  618,  626 

Moomey  v.  Maas  1420,  1421 

Moon  V.  Wellford  1436 

Mooney  v.  Brinkley  675 

Moor  V.  Watsou  465 

Moore's  Appeal        748,  749,  751,  755,  1606 

Moore,  in  re  406 

Moore  w.  Anders  173,217,229 

V.  Beaman  633,  1198 

V.  Beasom    848,  1055,  1057,  1064, 

1269 
r.  Bennett  574  a 

V.  Cable       1123  a,  1127,  1132, 
1144,  1158 
V.  Chandler  1624 

V.  Clark  1201 

V.  Cord      812,  1052,  1084,  1396, 
1406,  1678 
V.  Curry  559 

V.  Davey  465,  510 

V.  Degraw  1118,  1122 

876 


Moore  v.  Fuller 

113,  500,  611 

V.  Glover 

458 

V.  Harrisburg  Bank 

1355 

V.  Ivey 

335 

V.  Jourdan 

586 

V.  Kirby 

1442 

V.  Knight 

239 

V.  Lackey       220,  221,  229,  1779 

V.  Little  Rock  707 

V.  Madden  492 

V.  Metropolitan  Nat.  Bank        352  a, 

842,  844  a,  845 

V.  Moberly  346,  726 

V.  Pierson  586 

V.  Pope  1370 

V.  Ragland  346 

V.  Rake  106 

V.  Reynolds  1715 

V.  Sargent  1186 

V.  Shaw  1709  a 

V.  Shurtleff  1621,  1625 

V.  Sloan  484,  786 

V.  Smith  793,  1087 

V.  Starks  1402,  1414 

V.  Thomas  474,  494,  539 

V.  Titman    714,  1080,  1123,  14.54, 

1469,  1638 

V.  Valentine  428 

V.  Wade  250,  282,  296,  322 

V.Walker  458,459 

V.  Ware  821,  822,  1377,  1701  a 

V.  Williams  1600 

V.  Williamson  627 

Moores  v.  Ellsworth  1584 

V.  Wills  244 

Mooring  v.  Little  1636,  1887 

Moors  V.  Albro  665 

Moran  v.  Gardemeyer  345,  359 

V.  Pittsburgh,  &c.  Ry.  Co.  775, 

776 

V.  Strauss  124 

More  V.  Calkins  612,  1725,  1792 

Moreau  v.  Branson  813 

Moreland  u.  Barnhart  316,335 

V.  Houghton  801,  807 

V.  Metz  235 

V.  Richardson  586 

Morey  v.  McGuire  687 

Morford  v.  Hamner  1517 

Morgan's  Appeal  842 

Morgan  v.  Chamberlain  957 

V.  Edwards  1606 

V.  Gilbert  695 

V.  Hammett  872,  874  a,  877 

V.  Jones  74,  1141 

V.  Kline  822 

V.  Morgan  1116,  1153,  1171, 

1192 

V.  New  Orleans,  &c.  R.  R.  Co. 

656 
V.  Plumb  1567 

V.  Sackett  1067 

V.  Sherwood  1224 

r.  Walbridge  317,1127,1128 

i;.  Wilkins  1337,  1711 


TABLE   OF   CASES. 


References  are  to  Sections. 


Morgan  v.  Woodward 
Morgenstern  v.  Klees 
Moriaity  v.  Ashworth 
Moring  v.  Dickersou 
Morley  v.  Morley 
Moroney's  Appeal 
Morrell  v.  Dickey 
Morrill  v.  Gelston 
V.  Morrill 
V.  Noyes 
Morris's  Appeal 
Morris,  in  re 
Morris  v.  Alston 
V.  Bacon 
V.  Barker 
V.  Beecher 
V.  Branchaud 
V.  Buckley 
V.  Budloug 
V.  Cain 
V.  Daniels 
V.  Davis 
V.  Day 
V.  Floyd 
V.  Gei;ecke 
V.  Hoyle 
V.  Islip 
V.  Keycs 
V.  McKiiight 
V.  Morange 
V.  Mowatt 
V.  Murray 
V.  Nixon 
V.  Pate 
V.  Peck 
V.  Sargent 
V.  Taylor 
V.  TnthiU 
V.  Wadsworth 
V.  Ward 
V.  Watson 
V.  Wheeler 
V.  White 
Morrison  v.  Bausemer 


702 

1181,  1459 

684 

468,  470,  472 

1386 

370,  374,  375 

960 

1740 

494,  538 

152,  452 

429,  435,  444 

102 

355,  645 

817,  818,  819,  837 

701 

479 

1516,  1521, 1530 

1355 

265,  272,  325,  1123a 

374,  378 

553,  555 

1490 

1259,  1260 

1494,  1511 

83  a 

574 

1140 

500 

1785, 1786, 1787 

1600 

1645,  1646  a 

70,  573,  574,  579 

266,  275,  285,  340 

473 

807 

83  a 

643 

1485 

524 

1423 

129 

1439,  1442,  1450 

548 

560,  562 


V.  Bean        1359,  1443,  1759,  1773 

V.  Beckwith  1 627 

V.  Brand  265,  267,  276 

V.  Brown  106,  225,  495 

V.  Buckner  1215,  1516,  1526, 

1 532 

V.  Funk  465 

V.  Kelly  586,  59 1 

V.  M'Leod  11 23 /a  1127 

V.  March  586,  589,  597 

V.  Markham  244,  639 

7).  Mcndenhall  801,1787 

r.  Morrison  575,901,936 

V.  Tenn.  M.  &  F.  Ins.  Co.         420 

t'.  Verdenal  643 

Morrow  v.  Dows  713,  714 

V.  Morgan  669,  717,  1678 

V.  Kainey  901 

V.  Tiirncy  103 

V.  U.  S.  Mortgage  Co.  874  h 

Morse  v.  Bank  1658 


Morse  v.  Bassett 
V.  Byam 
V.  Clayton 
V.  Dewey 
V.  Goddard 
V.  Godfrey 
V.  Merritt 
V.  Morse 
i;.  Smith 


1258,  1840 

1902 

924 

65 

777 

460 

671,  1274 

489 

1064,  1072 


V.  Whitcher      670,  671,  675  a,  675  b, 

702 

Morsman  v.  Wergess  624 

Morss  V.  Burns  680 

V.  Hasbrouck  1606 

Morton  v.  Covell  1174 

V.  Hall  1853,  1927 

V.  Noble  28 

V.  Robards  464 

Mosby  V.  Arkansas  90 

V.  Hodge  1776 

Moseley  v.  Moseley  283 

Moses  V.  Dallas  Dist.  Court  748,  758 

!'.  Hatfield      346,351,353,374,376, 

384,  817 

V.  Murgatroyd  309 

Mosher  v.  Vehue  687 

Moshier  v.  Knox  College  555,  556 

?;.  Norton       1080,1123,1134,1139, 

1140,1493,1599 

Moss  V.  Atkinson  586 

r.  Gallimore  774,1194 

V.  Green  •  262 

V.  Johnson  1397 

V.  Lane  917,  1388 

V.  Warner  1423,  1441 

Mossop  V.  His  Creditors  612 

Motley  V.  Harris  881 

V.  Manuf.  lus.  Co.  761  a 

Mott  V.  Clark  842,  843,  844,  953 

V.  Harrington  2.50,317 

V.  Walklcy  1040,  1671 

Moulthrop  V.  Fanners'  F.  Ins.  Co.  426 

Moulton  V.  Cornish  1539,  1540,  1551, 

1558,  1560, 1600 

V.  Haskell  744 

V.  Leighton  674 

V.  Lowe  624 

V.  Sidle  1743 

Mount  V.  Manhattan  Co.  1421,  1654 

V.  Potts  1621,  1631,  1712 

V.  Suydam  793 

V.  Van  Ness  751,  755,  761  a 

Mountford  v.  Scott  562 

Mower  v.  Kip  1593 

Mowry  v.  Bishop  634,  051 

t'.  Sanborn      351,1751,1770,1821, 

1894,  1904,  1905 

V.  Wood  130,  170,  188 

Mover  v.  Ilinman  580,  593 

Moynalian  v.  Moore  ■  893 

Mt.  Vernon  Manuf.  Co.  v.  Siiniinit 

Co.  Mut.  F.  In.s.  Co.  425 

Mudd  r.  Green  87 

Miiehlberger  v.  Schilling  172 

Mueller  v.  Brighuui  538 

877 


TABLE   OF   CASES. 


References  are  to  Sections. 


Mueller  v.  Engeln 
Muhlig  V.  I'iske 
Muir  V.  Berkshire 

V.  Gallaway 

V.  Gibson 

V.  Newark  Sav.  Inst. 


574 

738, 769 

812,  874 

495 

1414,  1436 

642 


Muiford  V.  Peterson  787,  813,  870,  871 

Mulherriu  v.  Hill  226 

Mullan  V.  His  Creditors  1606 

Mullanphy  v.  Simpson  1072 

Mullan pliy  Bank  v.  Schott        124,  128,  835 
Mullens  v.  Mortgage  Co.  134  a 

Muller  y.  Bayly  1805,1817 

V.  Stone  1805,  1813, 1817 

V.  Wadlington  817,  881 

Mulliken  v.  Graham  546,  548 

Mullin  V.  Bloomer  1335,  1449 

Mullins  V.  Wimberly  586 

Mullison's  Estate  86,  547,  611 

Mulvany  v.  Gross  750 

Mulvey  v.  Gibbons  1054,  1561,  1590, 

1876,1891 

Mumford  v.  Am.  L.  Ins.  Co.  646 

r.  Armstrong  1709  a 

Muncie  Nat.  Bank  r.  Brown  1516 

Mundy  v.  Monroe  36,  1742,  1905 

V.  Vawter  489,  548,  1771 

Munford  v.  Mclntyre  465 

V.  Miller  99 

V.  Pearce  236,  237 

Munger  y.  Casey  312 

Munn  V.  Burges  1861,  1876,  1883,  1885 

1891,  1910 

V.  Lewis  494 

Munoz  V.  Wilson  1469  a 

Munro  v.  Merchant  715 

Munroe  v.  Eastman  551 

V.  Long  1500 

Munson  v.  Ensor  507 

V.  Munson  887 

Munter  v.  Linn  635,  1493,  1606 

Murdock  v.  Chapman        138,  139,  810,  812 

V.  Chenango  Ins.  Co.  396 

V.  Clarke         20,  288,  342  c,  1122, 

112.3,  1127 

V.  Cox  612,  887 

V.  Empie  1639,  1670,  1911 

V.  Ford      607,  1047,  1118  a,  1425, 

1435,  1699 

V.  Gifford  444 

V.  Harris  444 

I'.  Woodson  178 

Murgiondo  ?-.  Hoover  1339 

Murphy  v.  Galley         244,  245,  250,  272,  273 

V.  Coates  1196 

V  Dunning  834 

V.  Elliott  954 

V.  Farwell  1048,  1439 

V.  Fleming  990 

V.  Hendricks  •  66,  489 

V.  McNeill  1352 

V.  Moore  625 

V.  Murphy  1259 

V.  Nathans  557 

V.  N.  E.  Sav.  Bank  1107 

878 


Murphy  v.  N.  H.  Sav.  Bank  1563 

V.  People's  F.  Ins.  Co.  399 

V.  Purifoy  265 

V.  Stith  1545 

V.  Trigg  297 


V.  Welch 

Murray  v.  Able 
V.  Ballou 
V.  Barlee 
V.  Barney 
V.  Blackledge 
V.  Blatchford 
t'.  Catlett 
V.  Fishback 
V.  Fox 
V.  Lylburn 
V.  Marshall 
V.  Porter 
V.  Smith 
V.  Walker 

Murrell  v.  Jones 
V.  Scott 
V.  Smith 

Murtagh  v.  Thompson 

Musgrove  v.  Bonser 


676,  1211  a 

229 

542,  555,  583,  584 

107 

374 

789 

f  959 

802,  1402 

915 

877 

843,  847 

742 

802 

748,  750 

309,  331,  340,  719 

823 

881,  1771 

1588 

650 

253,  518,  538,  543, 

547,  548,  555,  572 

V.  Kennell  842 

Muskingum  Val.  Turnpike  Co.  v. 

Ward  1838 

Musser  17.  Hvde  504,517 

Mussina  v.  Bartlett  1539,  1563,  1577 

Mutual  Benefit  L.  Ins.  Co.  v.  Gould        1350 
V.  Rowand    487, 
503 
Mutual  L.  Ins.  Co.  v.  Bigler         684,  1658, 

1666 
V.  Boughrum  1621, 

1625 
V.  Bowen  1687 

V.  Cranwell  1606 

V.  Dake     .504,  517,  518, 
519 
V.  Davies  741 

V.  Easton  &  A.  R. 

R.  Co.      681  a,  1072 

V.  Hopper  1720 

W.Howell  1717 

j;.  Hunt  1807  6 

V.  Kashaw  642 

V.  Nat.  Bank  684 

V.  Sage  1597 

V.  Salem  1685 

V.  Schwab  "  1442 

V.  Shipinan  136 

y.  Southard    13.50,1720 

V.  Sturgis  135,  608, 

796  a,  1668 

V.  Wilcox  485 

Mutual  Loan  Asso.  v.  Elwell  471 

Muzzy  V.  Knight  71 

Myeru.  Beal  1204 

V.  Hart  991,  1606,  1923 

Myer's  Appeal  281,  374 

Myers  v.  Buchanan  526 

V.  Brownell  848 


TABLE   OF    CASES. 


References  are  to  Sections. 


Myers  v.  Dorman  1677 

v.  Estell  1516,1521,1532,1773 

V.  Hiizzard  817,  820,  834,  837 

V.  Hewitt  1353 

V.  Mauny  1666 

V.  Meinrath  623 

V.  O'Neal  848 

V.  Picquet  458 

V.  Pierce  1630 

V.  Ross  560 

V.  Wright  1378 

Mygatt  V.  Coe  1654 

Mylius  V.  Copes  129 

Myton  V.  Davenport  1516,  1521 


N. 


Xaar  v.  Union  &  Essex  Land  Co.  1350 

Najile  V.  Macy                   20,  808,  1584,  1673 

Nailer  v.  Stanley  1621 

Naltner  v.  Tappey  942 

Nance  v.  Gregory  644 

Napton  V.  Hurt  1849 

Nash  V.  Kclley  817 

V.  Spofford  1305 

Natal  Land  Co.  v.  Good  546 

National  Bank  v.  Bigler     382, 384,  926, 934 

V.  Cherry  180 

V.  Cotton  1198 

V.  Gushing      874,  874  a,  881 

V.  Danforth  1606 

V.  Gunhouse  369 

V.  Kirby  75,  841 

V.  Matthews  134,  619 

V.  Morse  501 

V.  Spragne  1677 

V.  Whiiney        134,  365,  460 

V.  Wood  1236 

National  F.  Ins.  Co.  v.  Loomis  1613,  1882 

v.  McKav  1483, 

1496,  1502 

National  Iny.  Co.  v.  Nordin  736 

National  Sav.  Bank  v.  Creswell  1621 

National  Shoe  &  L.  Bank  v.  Small  726 

National  State  Bank  v.  Davis  1187 

National  Trust  Co.  v.  Murphy  134 

National  Val.  Bank  i;.  Harman  231 

Nau  V.  Brunette  1763,  1851 

Navassa  G.  Co.  i;.  Eichardson  50,  873 

Nazro  v.  Ware  84,  348,  349,  352,  354 

Neal  V.  Bleckley  1906,  1922 

V.  Gillaspy  1655 

V.  Hamilton  1897 

V.  Murphey  229 

V.  Perkerson  595 

Neale  y.  Albertsou  1135 

V.  Hagthrop  1127,  1597 

V.  Keid  401 

Nealis  v.  Bussing  1536 

Necklace  v.  West  720 

Neelv.  Clay  217 

Neeley  v.  Kulcys  235 

Neely  v.  Jones  885  b 

Neesom  r.  Clarkson  1129 


Neide  v.  Pennypacker  479 

Neidig  v.  Whiteford  605 

Neilson  v.  Blight  817 

V.  Chariton  Co  1895 

V.  Iowa  East.  Ry.  Co.  487 

V.  AVilliams  447 

Neitzel  v.  Hunter  1474,  1718 

Neligh  V.  Michenor  136,  173 

Nellis  V.  Munson  538 

Nelms  V.  Kennon  1322 

Nelson  v.  Boyce  364,  372 

V.  Eaton  788 

V.  Everett  1606  a 

V.  Ferris  813 

V.  Ins.  Co.  418 

V.  Iowa  Eastern  R.  R.  Co.  370 

V.Kelly  251,332 

V.  Larsen  732 

V.  Loder  886,  892,  899 

V.  McDonald  90,  91 

V.  McPike  1490 

Nelson  v.  Pinegar  27,  684 

V.  Wade  489 

Neptune  Ins.  Co.  v.  Dorsey  1634,  1923, 

1924 
Nervius  v.  Egbert  1672 

Nesbett  v.  Tredennick  714 

Nesbit  V.  Han  way  1048,  1095 

V.  Worts  382 

Nesbitt  V.  Cavender  314 

Neslin  v.  Wells  456,  527 

Nevins  v.  Egbert  1672 

Nevitt  V.  Bacon  1195,  1204,  1210 

New  V.  Wheaton  255,  586,  597,  600 

Newall  V.  Wright      668,  702,  774,  777,  952, 
1116,  1244,  1289 
Newark  Sav.  Inst.  v.  Forman  1350 

Newavgo  Co.  M.  Co.  v.  Stevens  1479 

New  Bedford  Inst.  v.  Bank  387 

Newbegin  v.  Langley  106 

Newberry  v.  Bulkley  513,  548 

Newbold  V.  Newbold  24,  1216 

Newburger  u.  Perkins  1926  a 

Newbury  v.  Rutter  72,  1225 

Newcomb  v.  Bonhani      7,  277,  1041,  1547  a 
V.  Dewey  1425 

i;.  St.  Peter's  Church  1195 

Newcome  v.  Wiggins  1587 

Newcomer  v.  Wallace  1067 

Newell  V.  Mayberry  94 

V.  Pennick  1335,  1336 

New  England  F.  &  M.  Ins.  Co.  v.  Wet- 

more  408 

New  England  Jewelry  Co.  v.  Merriam 

473,  673,  848,  871 
New  England  L.  &  T.  Co.  v.  Young  680 
New  England  Mort.  Co.  v.  Gay  636, 

642,  643 
V.  Hirsch        927  a 
971 
V.  McLaugh- 
lin 6G1 
V.  Powell       134  a, 
1806,  1S08,  1813 
V.  Smith          1638 

879 


TABLE   OF   CASES. 


References  are  to  Sections. 


Newhall  v.  Burt  244,  245,  253,  514 

V.  Lynn  Sav.  Bank  1933 

V.  Pierce  253,  514,  597,  600 

New  Hampshire  Bank  v.  Willard  307, 

352,  366,  929 

Newhart  v.  Peters  110,  113 

New  Haven  Pipe  Co.  ?;.  Work  1567 

New  Haven  Sav.  Bank  v.   McPartlan 

22,  1215 
Newhouse  v.  Hill  173 

New  Jersey  Franklinite  Co.  v.  Ames      1398 
New  Jersey  Ins.  Co.  v.  Meeker  870 

New  Jersey  M.  R.  E.  Co.  v.  Worteu- 

dyke  885  h 

New  Jersey  Sinking  Fund  v.  Peter         1713 

Newkirk  r.  Burson  1717 

V.  Newkirk  365 

Newman  v.  Chapman  583,  1373,  1411 

V.  De  Lorimer  1192,  1207 

V.  E'iwards  305 

V.  Fisher  1232 

V.  Home  Ins.  Co.  1440 

r.  Jackson  1769,1840 

V.  Kershaw         644,  657,  659,  660, 

745 

V.  Locke  1051 

V.  Newman  1530 

V.  Ogden  1391,  1907 

V.  Samuels  62,  1769 

V.  Selfe  1572 

V.  Tymeson  489 

r.  Frevin  1813  o 

New  Orleans  &  P.  Ry.  Co.  v.  Union  T. 

Co.  154 

New  Orleans  Canal  Co.  v.  Hagan  1226 

17.  Montgomery  459 
New  Orleans  Nat.  Bank  v.  Raymond  433 
New  Orleans  Nat.  Bank  Asso.  v.  Adams  60 
New  Orleans  Nat.  Bank.  Asso.  v.  Le 

Breton  365,  1338 

Newport,  &c.  Bridge  Co.  v.  Douglass     1516 

Newsom  v.  Carlton  1331 

V.  Kurtz  474 

Newton  v.  Baker  1093 

V.  Cook  666,  1067 

V.  Egmont  1397,  1432 

V.  Fay  300,  322 

V.  Holly  320,  335 

V.  Keunerly  1141 

V.  Manwariug  740,  848 

V.  Marshall  680,  1445 

V.  McKay  674,  717 

V.  Newton  262 

V.  Wilson  663 

Newton,  &c.  Asso.  i;  Boyer  914,1176 

New  Vienna  Bank  v.  Johnson  162,  166 

New  York,  &c.  Coal  Co.  v.  Plumer         218 

New  York  Bap.  Uniun  v.  Atwell  1342 

New  York  Cent.  Ins.  Co.   v.  National 

Ins.  Co.  560,  562 

New  York  Chemical   Manuf.   Co.    v. 

Peck  608 

New  York  F.  &  M.  Ins.  Co.  v.  Burrell  1111 

New  York  L.  Ins.  Co.  v.  Aitkin     740  a,  750, 

752,  763,  764 

880 


New  York  L.  Ins.  Co.  v.  Murphy  1670 

V.  White       508,  515 

New  York  L.  Ins.  &  T.  Co.  v.  Beebe        642 

6'.  Covert    1198 

V.  Cutler     597, 

1576 

V.  Howard 

889,  907 
V.  Milnor 

1445, 1576 

i;.  Rand      1663 

V.  Smith      479, 

791 

V.  Staats       494 

New  York  M.  Society  i-.  Bishop  1639 

Nice's  Appeal  458,  522 

Nichol  V.  Henry  518 

NichoU  V.  NichoU  1668,1669 

Nichols  V.  Baxter     400,  401,  402,  415,  1885 

y.  Briggs  1204 

r.  Cabe  31.5 

V.  Cosset  657 

V.  Hampton  458 

V.  His  Creditors  877 

V.  Holgate  1436 

v.  Lee  842 

V.  McReynolds  517 

V.  Osborn  642  h 

V.  Otto  1053,  1876,  1922 

v.  Overacker  473 

V.  Randall  1406,  1426 

V.  Reynolds    250,  276,  313,  504,  789 

V.  Smith  1223 

V.  Trible  885 

V.  Weed  S.  Machine  Co.      619,  630 

Nicholson  v.  Walker  701,715 

Nickerson  v.  Meacham  969 

y.  Swett  1492  « 

Nickliu  V.  Betts  Spring  Co.  372 

V.  Nelson  511 

Nickson  v.  Toney  315 

Nicolls  V.  McDonald  312,  335 

Niggeler  v.  Maurin  172,  272,  340 

Nightingale  v.  Chafee  934 

V.  Meginnis  648 

Niles  r.  Harmon  1501,1621 

V.  Hansford         1787,  1832,  1886,  1902 

Nimrock  u.  Scanlan  1420,1563 

Nims  r.  Sherman  1678 

Nippel  V.  Hammond  129 

Nix  V.  Draughon  1193 

V.  Williams  1462 

Nixon  I'.  Bynum  50 

Nodiue  v.  Greenfield  1397,  1401 

Noe  V.  Gibson  1535 

Noel  V.  Noel  295 

Noell  V.  Gaines        574,  1179  a,  1179  6,  1184 

Nolan  V.  Grant  591,  595 

Noland  V.  State  113,1464 

Noleni'.  Woods  1709  n 

Nolte  V.  Libbert  14^2 

Noon  V.  Finnegan  1414 

Noonan  v.  Lee  1502,  1591,  1709  a 

V.  McNab  1535 

Nooner  r.  Short  1474 


TABLE    OF   CASES. 


References  are  to  Sections. 


Nopson  I'.  Horton 
Norcross  v.  Norcross 

1080 
35,  135,  705 

V.  Widgery 
Nordyke  v.  Gery 
Norfleet  v.  Russell  I 

593 
414 
493 

Norman  v.  Norman 

736,  1629 

V.  Peper 

1806,  1808 

V.  Towne 

574,  827 

Norres  v.  Hays 

456 

Norris's  Appeal 

Norris  v.  Beaty 

V.  Heald 

487 

1699 

177 

V.  Kellogg 
V.  Lake 

1469  a 
627 

V.  Luther 

1575 

V.  McLam 

310 

V.  Morrison 

866 

V.  Schuyler 

264,  332 

V.  "Wood 

1484 

Norrish  v.  INItirshall 

1100 

North  V.  Belden 

25,  243,  367 

V.  Crowell 

360 

V.  Knowlton 

523 

Northampton  Bank  v.  Balliet  805,  831 

Northampton  Paper  Mills  v.  Ames  721 

Northborough  r.  Wood  940 

North  British  Ins.  Co.  v.  Hallett  546 

North  Eastern  R.  R.  Co.  v.  Barrett        1801 
Northern  Dispensary  v.  Merriam  738 

Northern  Ins.  Co.  z;."Wright  1437 

North  Hudson  Co.  R.  R.  Co.  v.  Boo- 

raem  681  a,  1076 

Northingtou  v.  Faber  117 

North  River  Bank  v.  Rogers        1223,  1351, 

1511 

Northrop  i".  Cooper  1670 

V.  Sumney  1506  a 

Northrup  v.  Brehmer  458 

V.  Hottenstein  489 

V.  Wheeler  1751 

Northup  I'.  Cross  175 

Northwestern  F.  Co.  r.  Mahaffey  665 

Northwestern  L.  Ins.  Co.  v.  AUis  112,  1597 

V.  Drown        1596 

V.  Neeves        1365 

Nortby  v.  Northv  1282,  1296,  1309, 

1365 
Norton,  Succession  of  913 

Norton  v.  Birge  583 

V.  Craig  433  a 

V.  Ilighleyman  877 

r.  Joy  1439 

y.  Lewis  1202,  1H21 

V.  Nichols  626 

V.  Norton  99 

w.  Palmer  821,1204 

i;.  Puttee  1490 

V.  Reid  1472 

V.  Stone  822 

V.  Taylor  1646,  1646  a 

r.  Tharp  1911,1922 

V.  Warner  963,  1064,  1375 

V.  Webb  668 

V.  Williams  464 

Norway  r.  Itowe  1523,  1524 

VOL.    II.  5fi 


Norwich  v.  Hubbard  681  a,  699 

Norwich  F.  Ins.  Co.  v.  Boomer      397,  399, 

400,  408,  418,  420 

Norwood  V.  De  Hart  755 

V.  Norwood  944 

Nosier  v.  Haynes  1590 

Nourse  v.  Hensbaw  109,  110,  111,  112 

Novosielski  v.  Wakefield  1107 

Noy  V.  Ellis  1387 

Noyes  v.  Anderson  1181,  1185 

V.  Baruet  1283 

V.  Clark  76,  1185,  1471,  1591 

V.  HalL  586,  591,  1400 

17.  Horr  520 

V.  Rich  670,  771,  777,  1536 

V.  Rockwood  950 

V.  Sawyer  1368,  1379 

V.  Sturdivant  513,  703 

V.  White  822 

Nugent  V.  Nugent  1670,  1671 

V.  Priebatsch  467 

V.  Riley  242,  244 

Null  V.  Fries  267 

V.  Jones  1717 

Nunemacher  v.  Ingle  950 

Niite  V.  Nute  548,  552,  553 

Nutting  V.  Herbert  588 

Nycum  v.  McAllister  177 

Nye  17.  Gribble  1466 

V.  Moody  490 


O. 

Oakeley  v.  Pasheller 
Oakham  v.  Rutland 
Oats  17.  Walls 
Ober  V.  Gallagher 
Oberholtzer's  Appeal 
Obern  v.  Gilbert 
O'Brian  v.  Fry 
O'Brien  c.  Krenz 

V.  MoflStt 

V.  Oswold 

V.  Pettis 

17.  Young 
Ocean  Nat.  Bank  v.  Fant 


742 

1260,  1261 

504,  517 

221,  229,  817 

510 

981 

1661,  1663, 1718 

1343,  1743 

1334,  1378 

1807  c 

487 

1141 

900 


Ocmulgee  Bld'g  Asso.  v.  Thomson  638 

O'Oonnell  v.  Kelly  1853,  1927 

O'Connor  v.  Chamberlain  117 

i:  Sliipinan  1175 

Oconto  County  v.  Hall  626,  1370,  1458 

I'.  Jcrrard  518,520 

Odd  Fellow.s'  Sav.  Bank  v.  Harrigan     1637 

Odell  V.  Hoyt  1179 

V.  Montross  265,  309,  342  c,  1046 

Odenbaugh  v.  Bradford  250,  312,  330 

Odle  r.  Odle  523 

O'Fallon  v.  Clopton  1 106,  1549 

Officer  V.  Burchell  1710 

Of  peer  v.  Burchell  1710 

Ogdcn  V.  dial  fant  1516 

V.  Glidden  1321,  1576,  1621, 

1629 

t;.  Grant  244,  271,  1629 

881 


TABLE   OF   CASES. 


References  are  to  Sections. 


Ogden  V.  Stock 

436 

V.  Walters 

523, 1321,  1587 

1647 

Ogle  V.  Koerner 

1051c 

,  1333 

V.  Ogle 

468 

V.  Ship 

1079 

V.  Turpin 

956  o 

Oglesby  v.  Pearce 

1663 

O'Hara  v.  Baum 

382 

V.  Brophy 

1603 

V.  Haas 

881 

O'Haver  v.  Shidler 

1188 

Ohio  Cent.  R.  R.  Co.  v.  Cent.  T.  Co.    1690, 

1709 

Ohio  L.  Ins.  &  T.  Co.  v.  Ledyard    474,  527 

V.  Keeder  1187 

V.  Ross  538 

t\  Winn  1204 

owing  V.  Luitjens  1395,  1406,  1414 

Ohmer  v.  Boyer  877,  1065 

Ohn.sorg  v.  Turner  1771a,  1902 

Olcott  V.  Bynum        1752,  1846,  1859,  1865, 

1869,  1938 

V.  Crittenden  818,  1742 

V.  Robinson  1612,  1838 

Oldham  v.  First  Nat.  Bank  1533 

V.  Halley  242,  275 

V.  Ffleger  27,  664,  674,  716 

Olds  V.  Cummings  826,  838,  1333,  1789 

O'Leary  v.  Snediker  936,  1218 

Olinger  v.  Liddle  1600 

Oliphant  v.  Eckerley  924,  1231 

■Oliva  V.  Bunaforza  163 

Oliver  v.  Cunningham  711,  1438 

V.  Davy  471 

V.  Decatur  1520 

V.  Piatt  542 

V.  Sanborn  552 

■V.  Shoemaker  637 

Olmstead  v.  Tarsney  893 

Olmsted  v.  Elder  812,  914,  1633 

Olney  v.  Adams  1293 

Olson  V.  Nelson  666 

Olyphant  v.  St.  L.  Ore  &  Steel  Co.        1396 

Omaha  &  St.  L.  Ry.  Co.  v.  O'Neill     1436  a 

Omaha  &  St.  L.  Rv.  Co.  v.  Wabash,  St. 

L.  &P.  Ry.  Co.'  152,153 

Omalv  V.  Swan  1228 

O'Mulcahy  v.  Holley  804 

Onderdonk  v.  Gray  1123  a,  1123  h 

O'Neal  V.  Seixas  65,  163,  476 

O'Neil  V.  O'Neil  1444 

O'Neill  V.  Bennett  352  a,  357,  360,  947 

V.  Capelle       265,  279,  304,  323,  357 

V.  Clark  744,  763 

V.  Douthitt  964  a 

V.  Gray  3,  1606 

Ontario  Bank  v.  Strong  1351 

Ontario  L.  &  Imp.  Co.  v.  Bedford  79 

Opdyke  v.  Battles  1067 

V.  Crawford  1597,  1683 

Oppenheimer  i;.  Walker  1685 

V.  Wright  500 

Orchard  I'.  Hughes  1709  a,  1711 

Ord  V.  Bartlett  1440,  1589 

V-  McKee  817 

882 


Ord  r.  Smith  1169 
Orde  V.  Heming  1153 
Ordwav  v.  Cowles  1214  h 
'  V.  White  1758 
Oregon,  &c.  Ins.  Co.  v.  Rathbun     657,  661 
Oregon  Trust  Co.  v.  Shaw  481,  483,  872 
O'Reilly  v.  O'Donoghue  267 
Oriental  Bank  v.  Haskins  827 
Oriental  F.  Corp.  r.  Overend  742 
Orleans  Co.  N.  Bank  v.  Moore     907, 1683  a 
Orme  v.  Roberts  467 
V.  Wright          1878,  1879,  1906,  1916 
Ormsby  v.  Barr  913 
V.  Tarascon  1822 
V.  Terry  1648 
Omn  V.  Merchants'  Nat.  Bank  134 
O'Rourke  v.  O'Connor  467,  589 
Orr  V.  Hadley  664 
V.  Hancock  380 
V.  Rode  1193,  1204 
V.  Stewart  177 
Orrick  v.  Durham               574,  576,  878,  879 
Orth  r.  Jennings  464 
Orton  V.  Knab  1039 
Orvis  V.  Newell  523,  537 
V.  Powell  1051  a,  1621 
Osborn  v.  Williams  737 
Osborne  I'.  Benson  924 
V.  Cabell  755 
V.  Crump  1404 
V.  Harvey  1526 
V.  Rover  229 
V.  Tavlor  812,  848 
t\  Tunis              43,889,1388,1559 
Osbourn  v.  Fallows  1101 
Osburn  v.  Andre  1813 
Osgood  V.  Osgood  163 
V.  Stevens  1333 
V.  Thompson  Bank  289 
O'Shaughnessv  v.  Moore  83  a 
Osterberg  v.  Union  Trust  Co.  1646,  1649 
Ostrander  v.  Hart  1438,  1751 
Ostrom  V.  McCann  1411,  1636 
Oswald  V.  Legh  916 
Otis  V.  McMillan  1322 
V.  Payne  555 
V.  Spencer  546 
Ott  V.  King  163 
V.  Sprague  83  a 
Ottawa  Road  Co.  v.  Murray  76,  127 
Otter  t'.Vaux  864,1887 
Ottman  v.  Moak  881 
Ottumwa  Woollen  Mill  Co.  v.   Haw- 
ley  429,  444,  446 
Ould  V.  Stoddard  1324 
Outten  V.  Grinstead  1493 
Outtrin  v.  Graves  1811 
OveraU  v.  Ellis  1375 
Overby  v.  Fayetteville  Loan  Asso.  414 
Overly  v.  Tipton  237 
Overman  v.  Jackson  1204 
Overstreet  v.  Baxter  244,  265 
Overton  v.  Bigelow          315,  324,  329,  1148 
r.  Bolton  1141 
Owen  V.  Cawley  109 


TABLE   OF   CASES. 


References  are  to  Sections. 


Owen  V.  Cook 
V.  Evans 
V.  Kilpatrick 
Owens  V.  Dickenson 
V.  Johnson 
V.  Miller 
Owings  V.  Beall 

V.  Norwood 
Oxford  V.  Albemarle 


874  a 

841,  844,  844  a 

1322 

108 

106,  874  a 

513 

1337,  1444 

915 

129 


Pace  V.  Chadderdon  716 

Pacific  Iron  Works  v.  Newhall  1490 

Pacific  Mat.  L.  Ins.  Co.  v.  Shepard- 

son  11796 

Packard  v.  Agawam  F.  Ins.  Co.  399 

V.  Kingman  927  a,  1365 

Packer  v.  Rochester  &  S.  R.  R.  Co.  44 

Paddock  v.  Fish  643 

Padgett  V.  Cleveland  429,  445,  446,  447 

V.  Lawrence  460 

Page  V.  Cole  1355 

V.  Cooper  129 

V.  Edwards  436 

U.Foster  1080,1137 

V.  Pierce  817,  822,  1283 

V.  Robinson  455,  687,  692,  694, 

697,  721,  1262, 1273,  1287 

V.  Rogers  515,  1659 

V.  Vilhac  267 

V.  Waring  523,  585,  589,  591 

Paget  V.  Ede  1444 

Paige  V.  Chapman  834,  835 

V.  Peters  177 

r.  Wheeler  312 

Paine  v.  Abercrombie  548 

V.  Benton  •  350, 460 

V.  Caswell  1141 

V.  French  603,  813,  817 

V.  Jones  727,  741,  742  a 

V.  McElroy    1051  b,  1521,  1531,  1532 

V.  Mooreland  465 

V.  Smith  1644 

V.  Woods  671,  681  a,  709 

Palk  V.  Clinton  1072,  1 102,  1402,  1409, 

1414 
Palmer  r.  Bates  597,1898 

V.  Butler  1201 

V.  Carlisle  1368 

V.  Eyre  1208 

r.  Foote  1217 

V.  Forbes  1 24,  452 

V.  Fowley      1081,  1251,  1258,  1276, 
1285 
r.  Gurnsey  62,271,340,913 

V.  Harris  236 

u.  Ilendrie  1226,1861 

V.  Mead  1326,  1444,  1456,  1482 

V.  Miller  105 

V.  Palmer  309 

V.  Sanger  1222 

V.  Stevens  1248 

V.  Williams  555 


Palmer  v.  Windrom 
V.  Yager 
V.  Yates 

Palmeter  v.  Carey 


1464 
1440,  1445 

1487 
741,  1606,  1710,  1713 


Pamperin  v.  Scanlan  1743 

Pancake  ;;.  Cauffman  255,  315,  335,  339 

Paucoast  v.  Duval        460,  1622,  1625,  1627 

Paqiiin  v.  Bralev  1858 

Pardee  v.  Lindley  817,  826,  1789,  1792 

V.  Steward  1449,  1654 

V.  Treat  756,  757 

V.  Van  Anken  792,  1062,  1064, 

1075,  1081,  1087 

Parham  v.  Pulliam  635,  652,  656 

Parham  Machine  Co.  v.  Brock                 924 

Paris  V.  Hulett  950,  1555,  1567 

r.  Lewis  559 

-Paris  Exchange  Bank  v.  Beard           1701  a 

Parish  v.  Gates  261,  286,  335 

V.  Gilmauton  42,  808 

r.  Wheeler  156 

Park  V.  Prendergast  1509 

Parke  v.  Hush  1743 

V.  Neeley  89,  458,  574 

Parker  v.  Banks  1211  a,  1861,  1871 

V.  Barker  972 

y.  Baxter  714,955 

I'.  Browning  1535,  1536 

V.  Child  10i7,  15.50  a 

V.  Clarke  1470 

V.  Conner  547,  553,  1550  a 

u.  Dacres  1051,1145 

V.  Dee  1711 

V.  Fuller  1439 

V.  Green  906 

V.  Hartt  1498 

V.  Hill  500,  501 

V.  Hubble  294,  339 

f.  Jacoby  372 

r.  Jameson  1190 

V.  Jenks  744,  752 

V.Jones  679,  1193 

V.  Kane  546,  548 

V.  Kelly  229 

V.  Lincoln  131 

V.  Mercer  1701  a 

V.  New  Orleans,  &c.  Rv.  Co.        152 

V.  Osgood  "         544,  586 

V.  Parker  350 

V.  Parmele  613 

V.  Rochester  &  S.  R.  R.  Co.  44 

V.  Ross  822 

V.  Scott  504 

V.  Smith  Charities  417 

V.  Stevens  1373 

V.  Storts  1658 

V.  Sulouff  644 

Parkersburg  N.  Bank  v.  Neal                  465 

Parkes  v.  Parker  375,  991 

V.  Passingham  1411 

u.  White  1-111 

Parkhurst  v.  Bcrdell  913,  146!tj( 

V.  Cory  1*'''3 

r.  Cumraings  924,932,1141 

v.  Haubury  1123a 

883 


TABLE   OF   CASES. 


References  are  to  Sections. 


Parkhurst  v.  Hosford  546 

V.  McGraw  630 

V.  Northern  R.  R.  Co.  160 

V.  Steam  Engine  Co.    1699, 1701 

Parkinson  v.  Hanbury         1123,  1810,  1884 

V.  Jacobson  1502 

V.  Sherman  744,  754,  1502 

Parkist  v.  Alexander         476,  523,  525,  541 

Parkman  v.  Welch  722,  1621,  1627, 

1631 
Parks  V.  Allen  893,  900,  1606 

V.  Hall  250,  300 

V.  Jackson  583 

V.  Parks  286,  335 

Parlin  v.  Stone  97,  138  a,  683,  1590 

Parmelee  v.  Dann  817 

V.  Lawrence  266,  293,  335 

Parmenter  v.  Oakley  481,  791 

V.  Walker  1876 

Parmer  v.  Mangham  297  a 

V.  Parmer        324,  1039,  1070,  1322 
Parmly  V.  Walker  1915 

Parnell  v.  Tyler  1878 

Parrat  v.  Neligh  1347 

Parret  v.  Shaubhut  488,  495,  515 

Parrish  &  Hazard's  Appeal  487 

Parrott  v.  Baker  283,  339 

■  V.  Hughes  1400 

Parry  v.  Kelley  112 

V.  Wright  857 

Parsell  v.  Thayer  586,  600 

Parsons  v.  Clark  610 

V.  Copeland  444,  445 

V.  Denis  113 

V.  Gas  Light  Co.  358 

V.  Hind  429 

V.  Hoyt  224,  583 

V.  Litlle  679 

r.  Lunt  457,511 

V.  Lyman  960 

V.  Mumford  340 

u.  Noggle  1146,1193 

V.  Robinson  1600 

V.  Welles  673,  675,  889,  972, 

1052,  1093,  1298 
Partridge  v.  Bere  1211 

V.  Gordon  1307 

V.  Hemenway         453,  1446,  1657 
V.  Partridge  813,  817,  1355 

V.  Smith  460,  490 

V.  Swazey  250 

Pascault  ?;.  Cochran  469,1516 

Paschal  v.  Brandon  237 

V.  Harris  1752 

Pasco  V.  Gamble  1522 

Pass  V.  New  Eng.  Mortg.  Co.  642 

Passumpsic  Sav.   Bank  v.  First  Nat. 

Bank  547,  5.52,  571,  579,  580 

Paston  D.  Eubank  1411 

Patapsco  Guano  Co.  v.  Elder  1740 

Patchy.  Wild  1139 

Patchin  v.  Pierce  309,  1088 

Paton  V.  Murray  1381,  1407 

Patrick's  Appeal  821,  822 

Patridge  v.  Bere  1211 

884 


Patten  v.  Accessory  Transit  Co. 


1517, 
1521 

V.  Moore        555,  586,  591,  593,  600 
V.  Pearson  1876 

Patterson  v.  Allen  1404 

V.  Ball  84,  501 

V.  Birdsall  885 

V.  Clark  648 

V.  De  La  Ronde  456,  572 

z;.  Donner  249,618,1606 

V.  Harlan  -  65 

V.  Johnston  357,  380 

V.  Linder  464 

V.  Mills  848,  873 

V.  Rabb  842 

V.  Robinson  H6 

V.  Sweet  1504 

V.  Taylor  96 

V.  Triumph  Lis.  Co.  408 

V.  Yeaton  1105 

Pattie  V.  Wilson  915,  1457 

Pattison  v.  Hull  812,  817,  907,  1701 

V.  Powers  1223,  1351 

V.  Shaw  1425, 1439,  1440 

Patton  V.  Adkins  748,  761 

V.  Eberhart  459 

V.  Hollidaysburg  595,  596 

V.  Page  '-^ 

V.  Smith  1618 

V.  Stewart  1'18 

V.Taylor  1502 

V.  Varga  1659 

Patty  V.  Pease         723,  981,  982,  1621,  1631 
Paul  V.  Connersville  &  N.  R.  R.  Co.        592 
V.  Fulton  555 

V.  Hoeft  536 

Paulett  V.  Pcabody  1646  a,  1561 

Pauley  v.  Cauthorn  1420 

Paulison  v.  Van  Iderstine  97 

PauUing  v.  Barron  18,  1052 

V.  Creagh  651 

Paxton  V.  Harrier  722 

V.  Marshall  500 

Payn  v.  Grant  1439,  1589 

Payne  v.  Abercrombie  547,  574 

V.  Avery  655 

V.  Burnham  111,616,1495,1718 

y.  Newcomb  642  n,  642  6 

V.  Patterson  241,  323 

u.  Pavey  517,552 

Paynter  v.  Carew  1537 

Peabody  v.  Brown  63 

V.  Eastern  Methodist  Soc.  799 

V.  Penton  828 

V.  Patten  1056,  1067 

V.  Peabody  614,  1512 

V.Roberts  1147,1156,1.395, 

1425, 1551,  1688 
Peacock  v.  Monk  107 

Peagler  v.  Stabler  277,  279,  286,  326, 

329,335,340,711 
Peake  V.  Thomas  1484 

Peaks  V.  Dexter  961 

Pearce  v.  Hall  344 

v.  Hennessv  74,1141 


TABLE   OF   CASES. 


References  are  to  Sections. 


Pearce  v.  Morris 
V.  Pearce 
V.  Savage 
V.  Wilson 
Pearcy  v.  Tate 
Pearl  v.  Hervey 
Pears  v.  Laing 
Pearsall  v.  Kiugsland 
Pearsou  v.  Powell 
V.  Seay 
V.  Sharp 
Pease  v.  Benson  7 

V.  Egan 
V.  Pilot  Knob  Iron  Co. 


1055,  1063 

1652 

972,  1052,  1077,  1240 

69,  242,  618 

1056 

472 

1198 

644,  745,  832 

505 

257,  265,  275 

312 


V.  Warren 
Peasley  v.  McFadden 
Peat  V.  Gilchrist 
Pechaud  r.  Rinquet 
Pechin  v.  Brown 
Peck's  Appeal 
Peck  V.  Hapgood 
V.  Mallams 
V.  ]\Iayo 
V.  Minot 
V.  Williams 
Peckenbaugh  v.  Cook 
Peckham  v.  Haddock 
Peebles  v.  Reading 
Peed  V.  Elliott 
Peers  v.  McLanghlin 
Pegg  V.  Wisden 
Peiffer  v.  Bates 
Peirce  v.  Goddard 
Pell  V.  McElroy 

V.  Ulmar 
Pelly  V.  Wathen 
Pelton  V.  Farmin 
■  V.  Knapp 
Pemberton  v.  Simmons 
Pence  v.  Armstrong 
Pender  v.  Pittman 
Pendergrass  v.  Burris 
Pendleton  v.  Elliott 
V.  Fay 
V.  Booth 
V.  Rowe 
V.  Spear 
Penfield  v.  Dunbar 
Penman  v.  Hart 
Penn  v.  Baltimore 
V.  Butler 
V.  Ott 
Penn.  Coal  Co.  v.  Blake 
Penn.  L.  Ins.  Co.  v.  Austin 
Penn.  Mut.  Ins.  Co.  v.  Semple 
Penn.  Salt  Co.  v.  Neel 
Pennell,  ex  parte 
Penniman  v.  Ilollis 
Pennington  v.  Hanby 
Pennock  v.  Coe 

V.  Hoover 
I'ennoyer  v.  Neff 
I'enny  v.  Cook 
j;.  Foy 


1112,  1261 

874,  874  a 

39,  1787, 

1821,  1895 

807 

586,  589 

1.500 

1717 

357 

936, 950,  1567 

1276,  1284 

66,  515,  517,  915,  1390 

657,  659 

904 

.^  464 

1051  a 

167,  946 

546 

629 

104 

262 

943 

143 

597,  598,  600 

715,  1052,  1093,  1633 

1137 

1440,  1442, 1445 

802,  943 


411 


166,  281 

924 

1805 

258 

414.418 

842 

1163,  1165 

1190 

16.38 

555 

458 

1663 

958 

136 

610,  906 

129,  241,  331 

444 

481 

862 

1285 

258,318,  1060 

152,  452 

487 

1716 

1898,  1899 

769 


Penouilh  v.  Abraham 
Pensoneau  v.  PuUiam 
Pentz  V.  Simonson 
Peuzel  V.  Brookmire 
People  V.  Beebe 

V.  Bergen 
*  V.  Bristol 

V.  Dennison 

V.  Dudley 

V.  Easton 

V.  Irwin 

V.  Keyser 

V.  Knickerbocker 

V.  Miner 

V.  Organ 

V.  Snyder 

V.  Stephens 

V.  Stitt 

V.  Storms 


1807  c 

279,  1053 

106, 112 

1699,  1701  a 

936 

1597,  1688 

506,  515 

1496 

1449 

1051  c 

262,  266 

958,  959,  1390 

1645 

959 

90 

500 

1677 

1693 

490 


V.  ULster  Com.  Pleas  1940 

People's  Bank  v.  Finney  1699,  1700,  1701 
V.  Hamilton  Manuf.  Co. 

1411,  1437,  1442 

V.  Hill  824  a 

V.  Nebel  79 

Pepper's  Appeal  479 

Pepper  v.  George  560 

V.  Shepherd  1536 

Perdue  v.  Aldridge  474,  1465 

V.  Bell  260,  265,  267 

V.  Brooks  645,  1081,  1113,  1123  a, 

1709  a 

Pereau  v.  Frederick  501 

Ferine  v.  Dunn       1107,  1108  a,  1563,  1566, 

1586 

Perkins  v.  Conant  646 

V.  Dibble  242 

V.  Drye  712 

r.  Elliott  106,116 

i>.  Hall  874  c,  885 

V.  Keller  1612 

y.  Matteson  791,817,990,991 

V.  Perkins  388 

V.  Pitts  940,  972 

V.  Sterne  817,  943,  1207 

V.  Strong  504,517,518 

V.  Swank  458,  460 

V.  West  586 

V.  Woods  134.5,  1414 

Perley  r.  Chase  697,16.58 

Perot  V.  Cooper  288  a,  335 

Perre  v.  Castro  1582 

Perrctt  v.  Yarsdorfer  1492 

Perrien  v.  Fetters  1638 

Perrin  v.  Kellogg  357 

V.  Reed  510,  665 

Perrine  v.  Newell  106 

V.  Poulson  1105 

Perry's  Api)cal  1701  a 

Perry  v.  Borton  1067 

V.  Brinton  955 

V.  Carr  1095 

V.  Hardison  027 

V.  Holl  1"50 

V.  Kearns  736,  1494 

885 


TABLE   OF   CASES. 


References  are  to  Sections. 


Perry  v.  Marston 
V.  Mc Henry 
V.  Meddowcroft 
V.  Vezina 

Person  v.  Merrick 

Persons  v.  Alsip 

V.  Shaeffer 

Peru  Bridge  v.  Hendricks 

Pestel  V.  Primm 

Peter  v.  Russell  \ 


1171 

323, 332 

262 

627 

1395,  1436 

1439 

877  a 

1465 

1825,  1911 

602,  603 


Peter's  Build.  Asso.  v.  Jaecksch  638 

Peters  v.  Bowman  1439,  1440,  1500, 

1502 

V.  Clements  224 

V.  Dunnells  1207 

V.  Plorence  969 

V.  Goodrich  523,  934 

V.  Ham  489,  538 

V.  Jamestown  Bridge  Co.      804,  808 

Petersen  v.  Chemical  Bank  960,  1389 

Peterson  v.  Breitag  612 

V.  Clark  244,  684,  687 

V.  Emmerson  1333,  1334 

V.  Hornblower  473 

V.  Kilgore  501 

V.  Lothrop  956 

Petisch  ?'.  Hambach  99 

Peto  V.  Hammond       1102,  1406,  1409,  1410 

Petrie  v.  Wright  163 

Petry  v.  Ambrosher  1404,  1406 

Pettee  v.  Case  391,  1260,  1301 

V.  Peppard  665,  761  a,  919,  920 

Pettengill  v.  Evans  687 

V.  Mather  988 

Pettibone  v.  Edwards  1378,  1412 

V.  Griswold  70,  344,  367 

V.  Stevens  1598 

Pettis  V.  Darling  927,  932 

V.  Providence  681  a 

Pettus  V.  McGowan  961 

Petty  V.  Dill  906,  991 

V.  Grisard  624 

Peugh  V.  Davis  251,  285,  321,  322,  340, 

711,  1039,  1123 

Peychaud  v.  Citizens'  Bank  525 

Peyton  f.  Ay  res  1181,1340 

V.  Peacock  499 

Pfeaff  1-.  Jones  458 

Pfirmann  v.  Wattles  1500 

Phares  v.  Barbour  1876 

Phelan  v.  Boyd  444 

V.  Brady  586,  589,  591,  1411 

V.  De  Martin  711 

V.  Fitzpatrick  332,  1067,  1207 

V.  Olney  822,  1701  a 

Phelps  V.  Ellsworth  1391,  1583 

V.  Fockler  460,  461,  464,  468 

V.  Loyhed  1709 

V.  McNeely  120 

V.  Relfe  991 

V.  Sage  22,  889,  892 

V.  Seely  318,  338 

V.  Sullivan  790 

V.  Townsley  705,  787 

Philadelphia,  &c.  Co.  v.  Williams  708 

886 


Phil.  &  B.  R.  R.  Co. ;;.  Johnson     677,  1186 

Phil.,  W.  &  B.  R.  R.  Co.  v.  Woelpper     152 

Philbrook  v.  Clark  1196,  1197 

Philbrooks  v.  McEwen  114,  1490 

Philips  V.  Bailey  1898,  1923 

V.  Bank  479,  546,  805,  829,  831 

V.  Belden  1705 

Phillips  V.  Adams  233 

V.  Bishop  83  a 

V.  Costley  586 

V.  Croft  286 

V.  Eiland  1521 

V.  Green  105 

V.  Hele  1062 

V.  Holmes  681 

r.  Hulsizer  266,269,308,1111 

V.  Leavitt  972,  1056 

V.  Pearson  522,  610 

V.  Roberts  642  a 

V.  Sinclair  1144,  1158 

V.  Taylor  1530 

V.  Thompson  387 

V.  Winslow  152,  155,  452 

Phillipsburg  Mut.   L.  &  B.   Asso.  v. 

Hawk  728 

Philly  V.  Sanders  528 

Phinizy  v.  Clark  26,  665 

Phinney  r.  Baldwin  1141 

r.  Phinney  1145,1339 

Phippen  v.  Stickney  1677 

Phipps  V.  Bishop  of  Bath  1524 

V.  Munson  262,  267 

v.  Rieley  1511a 

Phoenix  V.  Clark  1661 

V.  Gardner  250,  302,  335 

Phcenix  Ins.  Co.  v.  Dolan  411 

PhcEuix  Mills  V.  Miller  444 

Phyfe  V.  Riley         13,  19,  44,  674,  702,  715, 

1093,1205 

Piatt  V.  Oliver  123 

V.  Vattier  557 

Pickard  v.  Sears  602 

Pickens  v.  Kniseley  106,  109 

Pickersgill  v.  Brown  374 

Pickett  V.  Barron  460,  483 

V.  Buckner  1693 

V.  Foster  456,  1338,  1339 

V.  Jones  804,  1787,  1788 

V.  Merchants'  Nat.  Bank  876 

Pico  V.  Gallardo  20,  339,  514,  600 

Pidcock  V.  Potter  103 

Pidgeon  v.  Trustees  744 

Piel  V.  Brayer  1334,  1646 

Pierce,  in  re  1231 

Pierce  v.  Balkam  1284 

V.  Brown  667 

V.  Emery  149,  155,  452 

V.  Faunce       414,  557,  710,  834,  1487 

V.  Fort  316,335 

V.  Gardner  224 

V.  George  444,  445 

V.  Grimley  1742,  1829,  1907 

V.  Insurance  Co.  609 

V.  Jackson  476 

V.  Kibbee  618 


TABLE   OF   CASES. 


References  are  to  Sections. 


Pierce  v.  Kneeland  79,  359,  1606  a 

V.  Mil.  &  St.  P.  R.  R.  Co.             152 

f.  Potter  953,1229 

V.  Robinson  251,  288 

V.  Shaw  1699,  1703 

V.  Taylor  581 

V.  Traver  306,  329,  335 

V.  Wilcox  1236 

Pierson  v.  Clayes  1107,  1569 

V.  Hooker  958 

V.  Ryerson  1807 

Pigot's  Case  94 

Pike  V.  Allen  552 

V.  Armstead  538 

V.  Brown  752,  765 

V.  Collins  344,  574 

V.  Galvin  528,  561 

V.  Gleasou  871 

r.  Goodnow  573,849,865,1199 

V.  Robertson  586 

V.  Seiter  748,  758 

Pilcher  v.  Rawlins  574 

Pillow  V.  Sentelle  1414,  1718 

Pillsbury  v.  Smyth  889 

Pinckard  v.  Ponder  652 

Pine  V.  Shannon  1368 

Pine  Bluff,  &c.  Ry.  Co.  v.  James  1323, 

1857 

Pingrey  v.  Watkins  785 

Pinnell  v.  Boyd  644,  736,  745 

Pinneo  v.  Goodspeed  1123 

Pintard  r;  Goodloe  173 

Pioneer  Loan  Co.  v.  Farnham  1051  b 

V.  Powers  720 

Pique  V.  Arendale  587 

Piser  V.  Lockwood  1648 

Pitman  v.  Thornton  _       1106 

Pittman's  Appeal  731,  1632 

Pittman  v.  Sofley  546,  548 

Pitts  V.  Aldrich  868,  1067,  1291 

t'.  Cable  262,  265,  275,  293 

V.  Parker  217,  225,  229,  235 

V.  Tilden  1309 

Pitzer  w.  Burns  96,1192,1194,1362, 

1364 

Pixley  V.  Huggins  464 

Place  V.  Fagg  435 

Plain  V.  Roth  1632 

Plaisted  v.  Holmes  710 

Plant  V.  Gunn  626 

V.  Shryock  548 

V.  Smythe  464 

V.  Storey  881 

Planters' Bank  V.  Dickinson  112 

V.  Douglass  874,  883  a, 

1187 

V.  Prater  817 

Plato  i;.  Roe  244,320,1039 

Piatt  V.  Brick  1087 

V.  Bright  681  a,  708 

V.  Gilchrist  1502 

V.  Griffith  375 

r.McClure  1741,1768,1814 

V.  Newcomb  642 

V.  Robinson  1493 


Piatt  V.  Smith 

V.  Sprigg 

V.  Squire 
Playford  v.  Playford 
Pleaffv.  Jones 
Plimpton  V.  Ins.  Co. 
Plowman  v.  Shidler 


1187 

1401 
551,  603,  1055 

1065 
458 
401 

1503 


Plum  i;.  Studebaker  Bros.  M.  Co.         1887 

Plumb  V.  Bav  464 

V.  Pluitt  571 

Plume  V.  Bone  458 

Plumer  v.  Guthrie  312 

V.  Robertson  593,  594 

Plummer  v.  Doughty  1388,1428 

I'.  Jar  man  113 

Plvler  V.  Elliott  1469  a 

Po'age  V.  Wabash,  &c.  Ry.  Co.                  574 

Poett  V.  Stearns  357,  1473 

Pogue  V.  Clark  1368,  1378,  1467 

Poignard  v.  Smith  '^^Z  J^^ 

Poindexter  v.  Burwell  1774  a 

V.  McCannon  258,  279 

Point  Breeze  Perrv  Co.  v.  Bragaw        1611 

Poland  V.  Lamoille  Val.  R.  R.  Co.         163, 

167, 608 

Polhemus  v.  Trainer  280 

Polk  u.  Chaison  574 

V.  Cosgrove  517,  574 

Pollak  V.  Davidson  547,  553,  554 

Pollard,  ex  parte  184 

Pollard  V.  Lively  510 

V.  Somerset  Mut.  F.  Ins.  Co.      422 

Poller  V.  Seymour  1931 

Pollock  V.  Maison  27,  1207 

Pomeroy  v.  Latting  535,  1283 

V.  Winship  1244,  1262 

Pomet  r.  Scranton  525 

Pomeroy  v.  Rice  924,  926,  930 

V.  Stevens  544,  586 

Pond  V.  Causdell  1499,  1597 

V.Clarke  929,934,1187 

V.  Eddy  300,  333,  681  a,  827 

Ponder  v.  Scott  549 

r.  Tate  1521 

Pool  V.  Davis  1388 

V.  Hathaway  869 

V.  Horton  1439 

Poole  V.  Gerrard  83  a 

V.  Johnson  1128 

Poor  V.  Oakman  436 

Pope  V.  Allen  591 

V.  Burrage  1854 

V.  Durant          1175,  1180,  1577, 1735, 

1859 

V.  Henry  488 

V.  Hooper  1182  a 

V.  Jacobus  804,  820,  837 

V.  Marshall  639 

V.  Pope  560 

Popkin  r.  Bumstead  866 

Poplin  w.  Mundell  .504,517,519 

Popple  i;.  Day  381,610,917 

Port  f.  Embree  461,489 

V.  Rohbins  924,  930 

Porter  v.  Barclay  1698 

887 


TABLE   OF    CASES. 


References  are  to  Sections. 


Porter  v.  Byne 

489 

V.  Cfements 

269 

V.  Green 

459 

V.  Hill 

972 

V.  Hubbard 

1258 

v.  Kilgore 
V.  King 

1395 
483,  843,  1229 

V.  Kingman 
V.  Lafferty 
V.  Millet 

1535 

680 
977 

V.  Muller 

60,  979 

IK  Nelson 

267,  307 

V.  Parmley 
V.  Perkins 

746 
940 

V.  Pierce 

1838 

V.  Pillsbury 
V.  Sevey 
V.  Smith 

1228 

253, 544 

354 

V.  Steel  Co. 

436,  629,  1051c 

V.  Trail 

1389 

V.  Vanderlin 

878 

Portland  Bank  v.  Hall 

701 

Portmore  i-.  Morris     284,  1146,  1207,  1441, 

1509 

Portwood  V.  Outton  492 

Portz  V.  Schantz  501 

Post  ;;.  Dart  1493,  1494 

V.  Dorr  669,  1524,  1527,  1536 

V.  First  Nat.  Bank  1 13  a,  626,  662 

V.  Leet  1649 

V.  Losey  114 

V.  Mackall  1439 

V.  Tradesmen's  Bank        387,  950,  951 

Posten  V.  Miller  1038,  1067,  1097 

Poston  V.  Eubank  1626 

Potomac  Manuf.  Co.  v.  Evans  1777  b, 

1831 

Potter  v.  Crandall  1391 

V.  Cromwell  429,  444 

V.  Dooley  504,  515 

V.  Holden  367 

V.  Langstrath  312 

V.  McDowell  464,  467 

V.  Rowland  1351 

V.  Small  1263 

V.  Stevens  817 

V.  Stransky  483,  494,  1204 

Potts  V.  Blackwell  460,  1487 

V.  Blanchard  141 

V.  N.  J.  Arms  Co.  444,  1439 

I".  Plaisted  893,  900 

Pouder  v.  Ritzinger  924,  925,  971 

Poughkeepsie  Sav.  Bank  v.  Winn         1597 

Poulson  V.  Simmons  854 

Poutz  V.  Reggie  456 

Powell  V.  Conant  87,  616 

V.  Haley  548 

V.  Hopkins      1806,  1807,  1808,  1869 

V.  Hunt  644,  1493 

V.  Monson  &  B.  Manuf.  Co.         446 

V.  Ross  1420,  1422 

V.  Security  Co.  117 

V.  Smith  853,  1187 

V.  Tuttle  1633,  1790 

V.  Williams  18,  1229 


Power  V.  Lester  44,  138, 139,  851 

Powers  V.  Andrews  1322,  1897 

V.  Denuison  433 
V.  Golden  L.  Co.      1055,  1075,  1086 

V.  Guardian  Ins.  Co.  1422 

V.  Kueckhoff  1854 

V.  Patten  71,  389,  1308 

I?.  Russell  1105 

Poweshiek  Co.  v.  Dennison  1181,  1577, 

1619,  1654 

Powis  V.  Corbet  1083 

Powles  V.  Griffith  1621 

V.  Innos  401 

Poydras  v.  Laurens  586 

Prather  v.  Wilkens  316 

Pratt  V.  Adams  657,  659 

V.  Bank  817 

V.  Clemens  166 

V.  Coman  461 

V.  Frear  1048,  1436 

V.  Huggins        1203,  1204,  1207,  1215 

?;.  Jarvis  338 

V.  Nixon  744, 1491 

V.  Poole  788 

V.  Potter  503 

I'.  Pratt  679,1080,1411 

V.  Ramsdell       1111,  1450,  1602,  1603 

V.  Skolfield  667,  807,  1052 

V.  Stiles  1602 

V.  Tinckom  1831 

V.  Topeka  Bank  473 

Pray  v.  Jenkins  1654 

Preble  17.  Baldwin  1897  a 

V.  Conger  734 

Frees  r.  Coke  1108rt 

Preiss  v.  Campbell  1815 

Prenser  t;.  Hensbaw  627 

Prentice  v.  Brimhall  758,  761  a 

Presbvterian  Corp.  v.  Wallace       129,  1621 

Preschbaker  v.  Faemaa  244,  245,  248, 

273,  293,  1039 

Prescott  V.  Ellingwood  1298 

V.  Hayes  71 

V.  Trueman  1504 

Presley  v.  McLean  1709  a 

Preston  v.  Breckinridge  1646 

V.  Briggs  439,  1657 

V.  Casei  817,  834 

V.  Hodgen  1077 

V.  Hull  90,  91 

V.  Longhran  1457,  1636 

V.  Nash  586 

V.  Shutton  1805 

V.  Walker  651 

V.  Young  674 

Preusser  v.  Henshaw  627 

Prewett  v.  Dobbs  303,  324 

Price  V.  Amis  1236 

V.  Bray  ton  .                  434 

V.  Brown  170 

V.  Copner  1144,  1166 

V.  Courtney  877 

V.  Cutts  163 

W.Davis  874  c 

V.  Dowdy  1521 


TABLE   OF   CASES. 


References  are  to  Sections. 


Price  V.  Evans  332 

V.  Cover  299,  384 

r.  Great  Eastern  Ry.  Co.  1141 

V.  Great  Western  Ry.  Co.  74 

V.  Jenks  444 

V.  Karnes  293,  335 

V.  Lauve  226,  1576 

V.  Lawton  1500 

r.  Martin  559 

V.  Mastersou  627 

v.  McDonald    495,522,544,550,551, 

578 
V.  Perrie  7, 

V.  Pollock  1491, 

V.  State  Bank 
V.  Weehawken  Eerry  Co. 
V.  White 

Prichard  v.  Sharp 
V.  Wilson 

Pridgen  v.  Andrews 
V.  Warn 

Priest  V.  Rice 

V.  Wheelock 

Prince  v.  Case 

Princeton  L.  &  T.  Co.  v.  Munson 


1043 

1494 

'  1323 

436 

539 

917 

1810 

1439 

1632 

466,  467 

936 

433,  529 

1182  «, 

1821, 1937 

Pringle  v.  Dunn        488,  494,  495,504,  515, 

520,  552,  557,  559,  560,  567,  574 

r.  Woolworth  1442  o 

Pritchard  v.  Brown  255,  586 

;;.  Elton  7,  1046 

V.  Kalamazoo  College  482 

V.  Sanderson  1813 

Pritchett  v.  Mitchell  1493 

Probasco  v.  Johnson  179 

V.  Vaneppes  1450,  1459,  1577 

Procter  r.  Cowper  1166 

Proctor  V.  Baker  1396,  1436 

V.  Cole  248 

V.  Furnam  1652 

V.  Robinson  795,  893,  1387 

V.  Thrall  972 

Pront  V.  Hoge  116,  817,  1373,  1377 

Prouty  y.  Eaton  910,1211,1512 

V.  Price  906,  1512 

Providence  Co.  Bank  v.  Benson  400 

Provident  Inst.  v.  Burnham  1307 

Provost  V.  Roedieger  1676  a 

Pruyn  v.  Milwaukee  74,  1141 

Prvce  V.  Bury  181 

Pryor  v.  Baker  1859,  1800 

V.  Hollinger  1095 

V.  Wood  787,  834,  842,  843,  1355 

Public  Schools  V.  Anderson  763 

V.  Trenton  714 

Puckett  V.  Reed  591,  1404 

Pueblo   &   Ark.   Val.   R.    Co.   v.   Be- 

shoar  687 

Puffer  V.  Clark  951 

Pugh  V.  Davis  711 

v.  Eairmount  M.  Co.  1512 

V.  Holt  220,  1701  a 

Pullan  V.  Cincinnati  &  C.  Air  Line  R. 

R.  Co.  154,452,670,1516,1532 

Pullen  V.  Heron  Min.  Co.  1425 


Purcell  V.  Enright 
V.  Mather 
Purdie  v.  Whitney 
Purdy  V.  Bullard 
V.  Coar 
V.  Huntington 

484,  511 
Purnell  v.  Vaughan 
Purrington  v.  Pierce 
Purser  v.  Anderson 
Parsley  v.  Forth 
Purviance  v.  Holt 
Purvis  V.  Brown 

V.  Carstaphan 
Putnam  v.  Bicknell 
V.  Clark 
V.  Collamore 
V.  Putnam 
v.  Ritchie 
V.  White 
Putney  v.  Farnhara 
Pye  V.  Daubuz 
Pym  V.  Blackburn 
V.  Bowreraan 


Q. 


589 
136 

1777 

172,218,  226 

744 

114,479,481,  483, 

,  514,  808,  870,  872 

1808,  1809,  1813 

253 

913,  943,  946,  948 

1615 

324 

1055 

949 

133 

843,  844  a 

865 

1088,  1099 

1128 

476 

750 

179 

321 

1062 


Quackenbush  v.  O'Hare  1691  a 

Quarks  v.  Knight  1563 

Quarrell  o.  Beckford  1525 

Quartermous  v.  Kennedy  7,  96 

Quaw  V.  Lameraux  1624,  1680 

Quayle  u.  Guild  1207 

Queen  City  Bld'g  Asso.  v.  Price  1740, 

1785,  1787,  1902 
Qnertier  r.  Hille  1338 

Quick  V.  Milligan  596,  734 

V.  Turner  304,  335 

Quidort  v.  Pergeaux  1388 

Quill  V.  Gallivan  1334 

Quimby  v.  Cook  652 

V.  Putnam  1198 

Quin  V.  Brittain         1069,  1095,  1096,  1108. 

1127 
Quinby  v.  Manhattan  Cloth  &  Paper 


Co 

Quincy  v.  Cheeseman 
Quinlan  v.  Stratton 
Quinn's  Appeal 
Quinn  i'.  Brittain 

V.  Champagne 

V.  Logan 
Quint  V.  Little 
Quirk  V.  Thomas 
Quivey  v.  Baker 


R. 

Rackliffe  v.  Seal 
Racouillat  v.  Rcenc 

V.  Sansevain 
Radcliffe  v.  Rowley 
Rader  v.  Ervin 

889 


429,  446,  447 

1516,  1530, 1532 

877 

1693 

1123,  1517,  1523 

66 

457 

1152,  1265 

556 

1464 


1345 

492,  574 

163,  166,  492,  522 

988  a 

1590 


TABLE   OF  CASES. 


References  are  to  Sections. 


Radford  v.  Carwile 
V.  Folsom 
Rafferty  v.  Mallory 
Raftety  v.  Kiug 
Rafsnyder's  Appeal 
Raglaiul  V.  Justices 
Rasruet  v.  Roll 


225 

244,  339 

574 

1065,  1149,  1156 

417 

26 

619,  626,  1355 


Rapelye  v.  Prince  358,  1134,  1597 

Rapier  v.  Gulf  City  Paper  Co.        275,  1055 


Rahway  Sav.  Inst.  v.  Irving  St.  Bap. 

Ch.  433  a 

Railroad  Co.  v.  Chamberlain  708 


V.  Soutter 
V.  Swasey 
Railway  Co.  v.  Sprague 
Raines  v.  Walker 
Rains  v.  Mann 
Rake  v.  Lawshee 
Rakestraw  v.  Brewer 

V.  Hamilton 
Ralphs  V.  Hensler 
Ralston  v.  EfRnger 
Ramborger  v.  Ingraham 
Rammelsberg  v.  Mitchell 
Ramsay  v.  Warner 
Ramsbottom  v.  Wallis 
Ramsdell  v.  Eaton 
Ramsey's  Appeal 
Ramsey  v.  Jones 

V.  Merriam 
V.  Riley 
Rand  v.  Cutler 

V.  Ft.  Scott,  &c.  Ry.  Co. 
Randall  v.  Bourquardez 
V.  Bradley 
V.  Duff 
V.  Elwell 
V.  Hazelton 
V.  Howard 
V.  Phillips 
V.  Raab 
V.  Sanders 
V.  Silverthorn 
Randell  v.  Mallett 
Randle  v.  Boyd 
Randolph  v.  Gwynne 
V.  Middleton 
V.  N.   J.  West  Line 
Co. 

Rands  v.  Kendall 
Rangely  r.  Spring 
Rank  v.  Dauphin  &  S.  Coal  Co 
Rankert  v.  Clow 
Rankin  v.  Coar 


969 

1600 

1179 

495 

953,  1459 

106 

714,1155 

229 

1388 

380 

116 

166 

1105 

1102 

1440 

1628 

.525 

1854,  1855,  1882 

519 

881  a 

681  a 

1500,  1718 

1144 

1440 

452 

1825,  1899 

1674 

135,  704 

715 

267 

586,  592 

706 

1440 

446 

1182 

R.  R. 

67,  524 


Rapp  V.  Gold  Co. 

V.  Stoner 

V.  Thie 
Rappanier  v.  Bannon 


V.  Mortimere 
Ranney  v.  Hardy 

V.  Hogan 

V.  Peyser 
Ransom  v.  Brown 

V.  Hays 
V.  Sutherland 
Ransone  i;.  Frayser 
Ranstead  v.  Otis 
Rapelye  v.  Anderson 

890 


Rardin  v.  Walpole 
Rasdall  v.  Rasdall 
Rathbone  v.  Clark 

V.  Hoaney 
Ratliff  V.  Davis 
Rattere  v.  Conley 
Ranch  v.  Dech 

V.  Oil  Co. 
Ranu  V.  Reynolds 
Ravald  v.  Russell 
Ravisies  v.  Stoddart 
Rawdon  v.  Rawdon 
Rawson  v.  Eicke 
V.  Hall 
V.  Lampman 
V.  Samuel 
Ray's  Appeal 
Ray  V.  Ferrell 
V.  Goodman 
V.  Hallenbeck 
V.  Pearce 
Raymond  v.  Clark 

V.  Raymond 
Raynham  v.  Snow 

V.  Wilmarth 
Raynor  v.  Drew 
V.  Lyons 
V.  Raynor 
V.  Selmes 
V.  Wilson 
Raynsford  v.  Phelps 
Read  v.  Cambridge 

V.  Edwards 
Reading  v.  Waterman 

V.  Weston 
Reading  of  Judge  Trowbridge 
Ready  v.  Huebner 
Reagan  v.  Hadley 


1606 
748 
1462 
874,  877  a,  878, 
1923 
882 
320 
1576,1621,  1840 
1439,  1445,  1589 
1388 
546 
679 
128 
1630,  1681 
1065 
117 
103 
774 
901,  1309 
1397 
1805 
177 
1464 
233 
84,  610 
1192, 1196,  1197 
156 
811,  1248 
1290 
1291 
288,  342  a,  1145 
288,  323 
1127, 1751 
1075,  1645 
530 
1080 
681  a 
1204 
1717,  1849 
265,  282,  289,  745 
787,  789 
644 
967 


46,  1693 

1269 

679 

3 

680, 1080 


V.  Kinsey  697,  780,  1658 

V.Major     790,813,822,1369,1378, 

1700 


187,  251 

530,  586,  587,  591 

465 

1524 

217,  220 

1493 

1709  a 

262,  274 

332 

1713 


Real  Est.  Sav.  Inst.  v.  Collonious 

Real  Est.  T.  Co.  v.  Balch 
V.  Keech 
V.  Rader 

Ream  v.  Jack 

Reap  V.  Battle 

Reasoner  v.  Edmundson 

Reck  V.  Clapp 

Rector  v.  Mack 
V.  Shirk 

Red  Bank  Mut.  B.  & 
terson 

Redd  V.  Burrus 

Redden  u    Miller 

Reddick  v.  Gressman 

Reddish  v.  Ritchie 

Redfearn  v.  Ferrier 

Rcdfield  V.  Hart 

Rfd  fields  V.  Red  fields 

Redin  v.  Branhau 


583 

738,  760 

647,  1499 

1495 

755 

1225,  1493 

28,  458,  498 

551 

1654 

331 

L.  Asso.  V.  Pat- 

638,  728 

150 

555,  556 

39, 1177  b 

841 

843 

1395 

65 

791,  1897  a 


TABLE   OF   CASES. 


References  are  to  Sections. 


Redman  v.  Deputy 

1190 

V.  Purrington 

821,  1182 

Redmond  v.  Packenham 

1799,  1899 

Redpath  v.  Lawrence 

460 

Reece  v.  Allen 

1921 

V.  Roush 

332 

Reed  v.  Aubrey 

1331 

V.  Bond 

1486 

V.  Catlin 

1606 

V.  Coleman 

118 

V.  Eastman 

1494 

V.  Elwell 

720, 

1116,  1240 

V.  Gannon 

548,  599 

V.  Home  Sav.  Bank 

1190 

V.  Jones 

981 

V.  Kemp 

495 

V.  King 

967 

V.  Lansdale 

1079 

V.  Latson 

1492 

V.  Marble 

791, 

896,  1406 

V.  Miller 

633, 

650, 1222 

V.  Ownby 

464 

V.  Paul 

769 

V.  Reed     263,  265 

275,  279 

,  298,  322, 

324,  340,  IV. 

9,  1139, 

1140,  1239 

V.  Shepley 

1361 

Reeder  v.  Bar 

574 

V.  Carey 

1700 

V.  Dargan 

670,  772 

V.  Martin 

644 

V.  Trullinger 

312 

Reedy  v.  Burgert 

1355 

Reeks  v.  Postlethwaite 

1171 

Reel  V.  Wilson 

1425 

Rees  V.  Logsdon 

346 

V.  Ludington 

609 

Reese  v.  Burts 

217 

Reeside  v.  Peter 

1840 

Reeve  v.  Downs 

236 

V.  Hicks 

1156 

Reeves  v.  Butcher 

623 

V.  Hayes        475 

791,  813 

,  814,  817, 

820,  956  a,  957,  967 

V.  Kimball 

842 

V.  Ladies'  Build. 

Asso. 

638 

V.  Scully 

834,  842 

956, 1487 

V.  Vinacke 

99,  574 

575,  1193 

V.  Wilcox 

1715 

Reg.  V.  Lee 

429 

Regina  v.  Staffordshire  Ry.  Co. 

447 

Reichert  v.  McClure 

465 

Reid  v.  Abernethy 

501,  925 

V.  Bank  of  Tenn. 

1120 

V.  Evergreens 

1385 

V.  McCrum 

400 

V.  Middleton 

1536 

V.  Mullins 

1929 

V.  Stevens 

113 

Reiffr.  Eshleman 

344 

Reigard  v.  McNeil     241 

,  250,  293,  322,  324 

Reilly  v.  Mayer 

1631 

Reimer  i\  Newel 

713,  1835 

Reimsdyk  v.  Kane 

657 

Reineman  v.  Robb 

842,  843 

Reinig  v.  Hecht 

1717 

Reitenbaugh  v.  Ludwick 


Relfe  V.  Relfe 
Remann  v.  Buckmaster 
Remington  v.  Campbell 
V.  Palmer 
V.  Willard 
Remington    Paper    Co.   v. 

erty 
Remsen  v.  Beekman 

V.  Hay 
Ren  V.  Bulkeley 
Renard  v.  Brown 
V.  Clink 
Renaud  v.  Conselyea 
Renfro  v.  Adams  * 

Reniek  v.  Frazier 
Renken  v.  Bellmer 
Renshaw  v.  Richards 

V.  Stafford 

V.  Taylor 
Renvoize  v.  Cooper 
Kenwick  v.  Wheeler 
Requa  v.  Rea 

Ressegieu  v.  Van  Wagenen 
Revalk  v.  Keaemer 
Reybold  v.  Hordman 
Reynal,  ex  parte 
Reynolds  v.  Buckman 

V.  Canal  &  B 


Co. 


V.  Dietz 
V.  Dishon 
V.  Green 
V.  Harris 
V.  Hennessy 
V.  Hosmer 
V.  Kingsbury 
V.  Morse 
V.  Rees 
V.  Shirk 
V.  Scott 
Reynoldson  v.  Perkins 
Rhinehart  v.  Stevenson 
Rhines  v.  Baird 
Rhinesmith  v.  Slote 
Rhoades  v.  Canfield 

V.  Parker 
Rhoads  v.  Reed 
Rhodes  v.  Biickland 
V.  Dutcher 
V.  Evans 
V.  Green 
V.  Rhodes 
Riblet  V.  Davis 
Ricard  v.  Sanderson 
Rice  V.  Adams 
V.  Bird 

V,  Boston  &  W, 
V.  Brown 
V.  Bunce 
V.  Clark 
V.  Cribb 
V.  Dewey 


244,  248,  277, 

1114 

218 

920 

293 

750 

1606  a 

O'Dough- 

889,  988  a 

742 

340,  711,  1046 

12 

1075,  1118  a 

893 

1.390 

990,  991 

574 

84 

3.59 

680 

931, 1118, 1414 

1563 

951  a 

1642,  1672 

744 

1420,  1423 

1683 

436 

568 

19,  1121, 

1124 

740  6,  1715 

1195 

1157, 1195 

1587 

1940 

1587, 

488 

229 

963,  964  a 

1472 

244 

1401 

1586 

312,  374 

917 

535,  608 

389,  391,  668 

1174 

1102,  1797 

1615,  1651 

1404,  1717 

555,  556 

917 

1218 

752,  757,  1713,  1714 

446 

977 

R.  R.  Co.  824 

1775,  1837,  1846,  1921 

138  a 

1312 

359,  817,  1485,  1591,  1606 rt 

147,  387,  430,  525,  603, 

726,  842,  932 


891 


TABLE   OF   CASES. 


References  are  to  Sections. 


Rice  V.  Dole 

V.  Godiiard 
V.  Kelso 
V.  Maxwell 
V.  Morris 
V.  Eice 


326 

1504 

679,  877,  1656 

618 

877 

252,  268,  272,  300,  604 


V.  St.  Paul  &  P.  R.  E.  Co.  37 

V.  Tower  422 

V.  Wilburn  1229 

Eich  I'.  Doane  261,  262,  277,  317,  325 

V.  Lord  705 

Richards  v.  Bibb  Co.  L.  Asso.       1331,  1339 

V.  Cooper  1438,  1439 

V.  Crawford  29,  342  c 

V.  Fisher  218 

V.Griffith.  877 

y.  Holmes     351,1176,1181,1634, 

1873,  1882 

r.  Kni^'ht  1658 

r.  McPherson  1004,  1141 

r.  Thompson  1402,  1414 

V.  Warring  842 

l:  Worthley  1493 

Eichardson  v.  Barrick  250,  266,  624 

v.  Cambridge  138,  824,  886, 

913,  946 

V.  Campbell  634,  650,  653 

V.  Copeland  445 

V.  Hadsall  1395 

V.  Hall  1062 

V.  Hamlett  1 63,  229 

V.  Hastings  1367 

V.  Hickman  1214 

V.  HockenhuU  848,  870 

V.  Johnson  323 

V.  Jones  1 643 

V.  McKim  822,  1699,  1701 

V.  Parrott  1586 

i:  Tolman  1512 

V.  Traver  877 

i;.  WaUis  1121 

V.  Woodbury  298 

V.  Woodruff  842 

j;.  Younge  1166,1171 

Eichelieu  &  0.  Nav.  Co.  v.  Thames,  &c. 

Ins.  Co.  408 

Eicheson  v.  Crawford  881 

Eichmond  v.  Aiken  1192,  1198,  1204 

V.  Lattin  994 

V.  Marston  874  a 

Eichmond  Iron  Works  v.  Woodruff       1293 

Eichmond  Manuf.  Co.  v.  Davis  90 

Eick  V.  Cribb  817 

Eickard  v.  Talbird  943 

Eickert  v.  Madeira  701 

Eicketson  v.  Eichardson  70,  343 

Eiddick  v.  Walsh  1420,  1424,  1694 

Riddle  v.  Bowman  387 

V.  George  607 

V.  Eosenfield  646 

Eider  v.  Bagley  1516,  1536 

V.  Johnson  834 

V.  Powell  97 

Ridgely  v.  Howard  500 

Eidgeway  f.  Bank  1531a 

892 


E idler  v.  McGehee 
Riedeburg  v.  Scmitt 
Rigge  V.  Bowater 
Eiggs  V.  Armstrong 

V.  Boy  Ian 

V.  Pursell 
Righter  i'.  Forrester 
Rigler  v.  Light 
Rigney  v.  Lovejoy 

v.  Small 
Eiley  v.  Hoyt 

V.  JlcCord 

V.  Olin 

V.  Pierce 

V.  Quigley 

V.  Rice 
Rilling  r.  Thompson 
Rines  v.  Mansfield 
Ringgold  V.  Bryan 


506 

119 

1537  a 

1776 

517 

r85, 1642,  1643,  1646 

464,  467, 

608 

813,  817 

1674 

527,  548 

936,  1345 

637 

117 

588 

744 

74,  635,  1141,  1606 

113 

544,  586 


V.  Waggoner  547 

Ripley  v.  Babcock  103 

V.  Harris  134,  364,  369,  489 

Rippetoe  v.  Dwyer  1621 

Ripple  V.  Ripple  546 

Eisk  V.  Hoffman  768,  881 

Eisley  v.  Parker  630 

Rissel  V.  Eaton  1420 

Pitch  V.  Eichelberger  1621,  1624 

Ritchie  v.  Judd  1821,  1830,  1902,  1912 

V.  McDufBe  748 

V.  Williams  920 

Ritger  v.  Parker  1654 

Ritter  v.  Phillips  735,  744,  745,  1141, 

1491 

V.  Worth  499 

Roach  V.  Karr  562,  626 

Roane  v.  Baker  465,  468,  470,  471,  474 

Roartv  y.  Mitchell  1782 

Roath  y.  Smith  1388 

Robabaugh  v.  Pitkin  941 

Robards  v.  Brown  1323 

V.  Cooper  1503,  1506 

Robbins  v.  Abrahams  113 

V.  Arnold  1395 

V.  Chicago  1383 

V.  Eaton  104 

?;.  Rice  1263,  1292,  1306 

V.  Sackett  30 

Robensou  i-.  Vasou  1732 

Roberdeau  v.  Rous  1663 

Robert  v.  Traders' Ins.  Co.                       411 

Roberts,  in  re  1141 

Roberts  v.  Bauer  490,  611 

V.  Bowne  523 

V.  Bozon  1765 

V.  Croft  182 

V.  Dauphin  Bank  436,  446 

V.  Flat  1717 

V.  Fleming      583,  1128,  1674,  1876 

V.  Francis  219 

V.  Halstead  *  956  a,  957,  1355 

V.  Hughes  1646 

v.  Littlefield  1144,1194 

V.  McMahan  268,  295,  332 

V.  Mansfield  607,  817 


TABLE   OF  CASES. 


References  are  to  Sections. 


Roberts  v.  Moseley 

586 

V.  Pierce 

1590 

V.  Richards 

293 

V.  Roberts 

1677 

V.  Sutherlin 

47,  715 

V.  Welch 

915, 1192 

V.  Wiggin 

104 

V.  Wood 

1231,  1440 

Robertson  v.  Bradford 

874 

V.  Campbell 
V.  Cauble 

258,318 
1709  n 

V.  Corsett 

439,  444,  446,  447 

V.  Guerin 

1701  a 

V.  Hay 

V.  Hogsheads 

V.  Lockie 

1492  a 

1805,  1811 

1823 

V.  Mowell 

874 

V.  Norris 

1106,  1801 

V.  Paul 

1759,  1792 

V.  Read 

1122,  1127 

V.  Robertson 

332 

V.  Stark 

71,  350 

V.  Vancleave 

1334 

Robeson's  Appeal 
Robeson  v.  Robeson 

875 
841,  1487 

Robins  v.  Swain 

953,  954 

Robinson  v.  Ala.  &  G.  M.  Co.  1 179  c, 

1383,  1822,  1923  a 
V.  Amateur  Asso.  1757,  1840, 

1876,  1883,  1897,  1906,  1915 
V.  Batchelder  1269 

V.  Bland  620,  657 

V.  Brennan  66 

V.  Crenshaw  548 

V.  Cromelein  378 

V.  Cropsey         258,  264,  269,  275, 
279,  309 
V.  Cross  973 

V.  Cullom  1886 

V.  Dix  236 

V.  Farrellv  251,  265,  286,  325 

17.  Fife      ■  1072,  1144,  1157,  1170 
V.  Hall  1231 

V.  Harbour  229 

V.  Leavitt  848,  874,  889,  893, 

902,  923 
V.  Loomis  76,  359,  1606 

V.  Kinney  1141 

V.  Mauldin  151 

r.  Meigs  1639 

V.  Preswick  428,  1527 

V.  Robinson  241,  769 

V.  Russell  684,  696 

V.  Ryan  358,  808,  812,  1075, 

1080,  1134,  1551, 1596,  1678, 
1683,  1751,  1902,  1921 
V.  Sampson  967,  971 

V.  Smith  460 

V.  Stewart  99,  627 

V.  Suiter  358 

V.  Urquhart  877,  925,  932 

V.  Walker  117,  IGOO 

V.  Williams         64,  364,  368,  372, 
374 
V.  Willoughby  244,  f68,  539 


Robinsons  v.  Lincoln  Sav.  Bank      315,  332 

Roby  0.  Skinner  1112 

Robson  V.  Tomlinson  630  a 

Roche  V.  Farnsworth  1844 

V.  Knight  57,  1445,  1843 

Rochester  v.  Whitehouse  1293 

Rockhilljy.  Rockhill  1211 

Rockholt  V.  Kraft  731 

Rockwell  V.  Blair  Sav.  Bank  758,  1713 

V.  Bradley  22,  667 

V.  Hobby  186 

V.  Humphrey  272,  320,  335 

V.  Servant  936,  1152,  1161, 

1211,  1661 

Roddam  v.  Morley  1198 

Roddy's  Appeal  874 

Roddy  V.  Brick  445,  446,  447 

v.  Elam  172 

V.  Williams  1178 

Rodenbarger  v.  Brarablett  758 

Rodes  V.  Bronson  901 

Rodgers  v.  Gibson  462 

r.  Jones  1187 

V.  Kavanaugh  489 

V.  Moore  292,  329 

r.  Olshoffsky  1506  a 

V.  Wilteumyer  903 

Rodman  v.  Hedden  1187 

V.  Sanders  877 

Rodriguez  v.  Haynes  94,  716,  808 

V.  Orena  1204 

Rodwell  V.  Phillips  697 

Roe  V.  Nicholson  1577 

Roelofson  v.  Atwater  660 

Roganr.  Walker  250,  320,  1039,  1144 

Rogers  f.  Beach  265,271,294 

V.  Benton  669,  1146,  1443,  1902 

V.  Blum  875 

V.  Brokaw  444,  447 

V.  Buckingham  642 

V.  De  Forest  889 

u.  Herron  755,870,1064,1121 

V.  Holyoke  1425 

V.  Hoskins  546 

V.  Humphreys  774,  876,  777 

u.  Lisurance  Co.  1484 

V.  Ivers  1 688 

V.  James  229 

r.  Jones  244,  544,  548,  553,  571, 

586,  587,  588 

V.  Meyers  875,  1061,  1220 

V.  Newton  1529 

V.  Place  1503 

V.  Prattville  Manuf.  Co.       429,  444 

V.  Traders'  Lis.  Co.  876,  924 

I'.  Trustees  of  Schools  924 

V.Tucker  468,471 

V.  Union  Cent.  L.  Ins.  Co.  631 

V.  Ward  109 

V.  Watson  1496,  1792 

V.  Wiley  548,  5.53,  554 

Roll  I'.  Rca  541,557,586 

V.  Smalley  1609 

Rolland  v.  Hart  560,  562,  565,  566 

Rollins  V.  Columbian  F.  Ins.  Co.  422 

893 


TABLE   OF   CASES. 


References  are  to  Sections. 


Rollins  V.  Forbes 
Rolston  V.  Brockway 
Eolt  V.  Hopkinson 
Roney  v.  Bell 
Rood  V.  Winslow 
Rooker  v.  Benson 
Rooney  v.  Crary 


1461,  1590,  1720 

822 

365 

1425 

612  a,  621,  626 

881 

1114 


Roosevelt  v.  Bull's  Head  Bank  900 

V.  Carpenter  1230 

V.  Ellithorp  1391,  1458 

tJ.  N.  Y.  &  H.  R.  R.  Co.    900,1450 

Root  V.  Bancroft  170 

V.  Collins  1091,  1092,  1621 

V.  King  1675  a 

V.  Wheeler  1687,  1751,  1822 

V.  Wright  745,  1404 

Rootes  V.  Holliday  -     458 

Roper  V.  Day  229 

V.  McCook  229 

Rorer  v.  Roanoke  N.  Bank  474 

Rorer  Iron  Co.  v.  Trout  557 

Rorke  v.  Lloyd  565 

Roscarrick  v.  Barton  6,  1401 

Rose  V.  Kimball  790 

V.  Munford  652  a,  653 

V.  Page  1439 

V.  Rose  687 

Roseboom  v.  Whittaker  124 

Rosenberg  v.  Ford  112 

Rosenheim  y.  Hartsock  113 

Rosevelt  v.  Stackhouse  719 

Ross  V.  Boardman      1067,  1118,  1395,  1551 

V.  Brusie  335 

V.  Demoss  1876 

V.  Haines  1625 

V.  Kennison  755,  758 

V.  Mead  1859 

V.  Mitchell  176,  1207 

V.  Norvell  318,  1144 

V.  Shurtleff  1361 

V.  Sutherland  1053 

V.  Terry  824 

V.  Wilson  149 

V.  Worthington  494,  574,  575 

Rosseel  v.  Jarvis  1182,  1471,  1586 

Rosser  v.  Cheney  574 

Rossett  I'.  Fisher  1813 

Roulhac  V.  Jones  1864 

Round  V.  Donnel  71 

Rourke  v.  Coulton  738,  1545 

Roussel  V.  St.  Nicholas  Ins.  Co.  408 

Routh  V.  Spencer  525 

Rowan  v.  Mercer  1425 

V.  Sharps'  Rifle  Co.     155,  372,  1137 

Rowand  v.  Finney  312 

Rowe  V.  Beckett  1734 

V.  Blake  1 600 

V.  Ream  586 

V.  Table  M.  Water  Co        1324,  1720 

V.Wood  1123,    1125,1523,1525 

Rowell  V.  Jewett        110,  298,  391,  395,  673, 

1097,  1126,  1138 

V.  Mitchell  673,  892,  1097 

V.  Williams  459,  538 

894 


Rowland  v.  Coleman 
V.  Leiby 
V.  Rowland 
V.  Sworts 
V.  West 

Rowley  v.  Brown 

V.  Williams 

Rubens  v.  Prindle 

Rublee  v.  Mead 

Ruby  V.  Abyssinian  Soc. 

Ruckmau  v.  Alwood 
V.  Astor 
V.  Ruckman 
V.  Stephens 

Rucks  V.  Taylor 

Rudge  V.  Richens 


630  a 

1324,  1720 

643 

433 

431 

1857 

1396 

76,  741,  768 

586 

1127 

293 

1118,  1119 

84,  940 

1393 

1439 

1219 


Rue  V.  Dole  260,  262,  265,  267,  275 

RufF  i;.  Doty  1587,1668 

Ruffier  V.  Womack  265,  316,  324,  325, 

328 

Ruffners  v.  Putney  271 

Rugg  V.  Brainerd  743 

Ruggles  V.  Barton  808,  1282,  1311 

V.  Nat.  Bank  1587,  1654,  1658, 

y.  Williams  315,511,513 

Ruhl  v.  Ruhl  221 

Ruhling  V.  Hackett  97,  99 

Rumpp  V.  Gerkens  848,  873 

RundJe  v.  Weinberg  742 

Runkle  v.  Gaylord  547,  557,  1909 

Runlet  V.  Otis  244,  307 

Runyan  v.  Mersereau  13,  44,  701,  813, 

889 

Rupert  V.  Mark  548 

Rush  V.  Rush  623,  1190 

Rushmore  v.  Miller  1432 

Rushton  V.  Lippincott  679 

Rusling  V.  Rusling  614 

Russ  V.  Alpaugh  679 

Russel  V.  Russel  163,  179 

Russell  V.  Allen  736,  774,  1051  c 

V.  Austin  866 

r.  Blake  1127,1129 

V.  Blakeman  1600 

V.  Carr  1701  a 

V.  Cedar  Rapids  Ins.  Co.  422 

V.  Clark  1233 

V.  Dudley  736,  747 

r.  Duflon  1751,1940 

V.  East  Anglian  Ry.  Co.  1535 

r.  Ely  715 

v.  Hauk  1360,  1709  rt 

V.  Howard  1629 

V.  Kinney  744,  1491 

V.  Lumber  Co.  1743,  1902 

V.  Merchants'  Bank  684 

V.  Mixer  970,  1587 

V.  Moore  589 

V.  Petree  547,  551,  552 

V.  Pew  1670 

V.  Pistor         750,  755,  865,  876,  888 

V.  Plaice  1766 

V.  Reed  94 

V.  Richards  1634,  1873 


TABLE   OF  CASES. 


References  are  to  Sections. 


Russell  V.  Southard  266,  275,  279,  285, 

321,323,  324,325,  420,  711, 

712,  1046 

Russell  V.  Swezey  66,  586 

V.  Theological  Union  500 

V.  Waite  253,  513,  842 

V.  Weinberg  742 

V.  Whitely  1902 

Russura  V.  Wanser  522,  776,  788,  1785 

Rutgers  v.  Kingsland  99 

Rutherford  v.  Green  467 

V.  AVilliams      1825,  1876,  1877, 

1886 

Ruyterv.  Reid  1413,  1439 

V.  Wickea  14UG 

Ryan  v.  Adamson  401 

V.  Dox  241,  277,  332 

V.  Gillinm  1804 

V.  Kales  1922 

V.  McGehee  680 

V.  Newcomb  1797 

V,  San ford  642 

V.  Shawneetown  381 

Ryder  v.  Cobb  609 

V.  Hulett  1857 

V.  Rush  554 

Ryer  v.  Gass  856,  858,  864,  868,  869 

Ryerson  v.  Boorman  1618 

V.  Willis  1500,  1502 

Rylands  v.  Latouche  1098 


Sable  V.  Maloney  320,  335 

Sacchi,  in  re  1233 

Sacerdotte  v.  Duralde  519 

Sackett  v.  Twining  1 646 

Sackner  v.  Sackner  619,  1807  a 

Sadler's  Appeal  542 

Saeger's  Appeal  981 

Saenger  v.  Nightingale  1373 

V.  Von  der  Herde  917 

Safford  v.  Vail  644 

Sage  V.  Cent.  R.  R.  Co.      1560,  1561,  1578, 

1612,  1614, 1615 

V.  McLaughlin  1556,  1560 

r.  Riggs  359,1606  0,1923  6 

Sager  v.  Tupper  893,  895,  1051,  1064, 

1087,  1621,  1622 

Sahler  v.  Signer         241,  332,  702, 715,  849 

St.  Albans  Bank  v.  Dillon  1709  b 

St.  Albans  Trust  Co.  v.  Farrar  927  a 

St.  Andrews  Church  v.  Tompkins  533 

St.  Croix  Land  Co.  v.  Ritchie  504,  515, 

520 
St.  Helen  Mill  Co.,  in  re  128,  492 

St.  John  u.  Boughton  1171 

V.  Bumpstead  71.5,  1406,  1822 

V.  Camp  344 

V.  Conger  510,  550 

V.  Grabham  1387 

V.  Mayor  of  N.  Y.  1639 

V.  Spalding  479,  485 

V.  Swain  1658 


St.  John  V.  Wareham  262 

St.  Johnsbury  &  L.  C.  R.  R.  Co.  v. 

Willard  681  a,  1440 

St.  Joseph  Manuf.  Co.  v.  Daggett  557, 
1835,  1838.  1857,  1911 
St.  Louis,  A.  &  T.  Ry.  Co.  v.  Whit- 

aker  1516 

St.  Louis  r.  Priest  1192,1211 

St.  Mark's  F.  Ins.  Co.  v.  Harris  474 

St.  Paul  V.  Viscount  Dudley  848 

Salem  v.  Edgerly  743,  1089 

Sales  V.  Lusk  1516,  1523 

Salinus  v.  Turner  113 

Salisbury  v.  Andrews  490 

V.  Chadbourne  1556 

Salisbury  Sav.  Soc.  v.  Cutting         528,  529 

Salsbury  v.  Benton  583 

Salmon  v.  Allen  1395 

V.  Bennett  630 

w.  Claggett  684,1181,1859 

V.  Dean  784 

V.  Gedney  1395 

Saloway  v.  Strawbridge  1889 

Salter  v.  Baker  459 

Saltmarsh  v.  Spaulding  127,  1887 

Salzmau  v.  Creditors  1338,  1701 

Sample  v.  Rowe  99,  814,  822 

Sampson  v.  Pattison  1547  a 

V.  Williamson  731 

Samson  v.  Rose  1658 

V.  Thornton  500 

Samuel  y.  Holladay  1736 

V.  Peyton  749 

Sanborn  v.  Adair  458 

V.  Dennis  1271 

V.  Osgood  625 

V.  Pettes  1874 

V.  Robinson  494,  574 

Sanders  v.  Askew  1054 

V.  Beck  322 

V.  Cassady  787,  889,  1889 

V.  Farrell  1464 

V.  Lisle  1524 

V.  Reed  687 

V.  Richards  1766 

V.Wilson  1122 

Sanderson  v.  Edwards  921,  1298 

V.  Price  43 

Sandford  v.  McLean  874  a 

y.  Travers  1501,1502 

V.  Weeks  591,  593 

San  df OSS  v.  Jones  332 

Sandon  I?.  Hooper  11236,1129,1137 

Sands  v.  Church  644,  745,  1495 

V.  Pfeiffer  455,  1657 

V.  Wood  1426 

Sands  Ale  Brewing  Co.,  in  re  400,  404 

Sandwich  Manuf.  Co.  v.  Zellmer     112,  113 

Sanford  v.  Bulkley  1381 

V.  Haines  1612 

V.  Hill  1089,  1092,  1621 

V.  Kane  642 

V.  Pierce  1118 

V.  Van  Arsdall  848,  908 

V.  Wheeler  367 

895 


TABLE   OF   CASES. 


References  are  to  Sections. 


San  Francisco  u.  Lawton  1439,  1440, 

1445,  1579,  1581,  1589,  1656 

San  Francisco  v.  Pixley  1616 

San  Gabriel  W.  Co.  v.  Witmer  636 

Sanger  v.  Bancroft  818 

V.  Craigue  489,  515 

V.  Niglitingale  1214  b,  1668 

Sangster  v.  Love  804,  813,  822,  1207, 

1700 
Sankey  v.  Hawley  513 

Santa  Cruz  v.  Santa  Cruz  1475 

Santa  Marina  v.  Connolly  1636 

Sappington  v.  Oeschli  464,  467 

Sargeant  v.  Fuller  866 

V.  Rowsey  1091 

Sargent  j;.  Baldwin  13S7 

V.Howe  62,821,838,1699, 

1774,  1789 
V.  Hubbard  574 

V.  M'Farland  1314 

V.  Webster  127,  130 

V.  Wilson  1420,  1423,  1441 

Sarles  v.  McGee  530,  723,  982 

Sartwell  v.  North  629 

Satterfield  v.  Malone  335,  546,  550,  560,  567 
Satterwhite  v.  Rosser  591 

Sauer  r.  Steinbauer  1615,1711 

Saunders  v.  Dehew  542 

V.  Frost  300,  414,  900,  1077 

V.  Gould  332 

V.  McCarthy  1699 

V.  Milsome  1225 

V.  Stewart  306 

Sauthoff  V.  Olson,  in  re  1632 

Savage  v.  Dooley  664,  719 

V.  Foster  602 

V.  Hall  866,  868 

V.  Holyoke  106 

V.  Scott  358,  1134 

V.  Stone  1715 

Savannah  &  M.  R.  R.  Co.  v.  Lancas- 
ter 1179^,1181 
Savary  v.  Clements  794,  958 
Savery  v.  Browning  89 
V.  Sypher                                       1668 
Savile  V.  Savile                                          1642 
Savings  Bank  v.  Grant                      736,  871 
V.  Holt                                803 
Savings  &  L.  Soc.  v.  Deering        1830,  1895 
V.  Horton                   1590 
Sawtelle's  Appeal                                     111 
Sawyer  v.  Adams                                515,  518 
V.  Bradshaw                                 1921 
V.  Campbell                                  1871 
V.  Lyon                                          1090 
V.  Pennell                                       507 
V.  Prickett                              834,  1486 
Sawyers  v.  Baker                                        600 
Saxton  V.  Hitchcock                           258,  269 
Sayer  v.  Tupper          894,  1051,  1064,  1621, 

1622 
Sayles  v.  Smith  1847,  1874 

Saylors  v.  Saylors  387 

Say  re  v.  Ely  ton  Land  Co.  1709  a 

896 


Scammon  v.  Com.  Union  Asso.  Co. 


V.  Ward 
Scanlan  ;;.  Cobb 

V.  Scanlan 
V.  Wright 
Scantlin  v.  Allison 
Scarfe  v.  Morgan 
Scarlett  v.  Gorham 
Scarry  v.  Eldridge 
Schaaf  v.  O'Brien 
Schade  v.  Bessinger 
Schadt  V.  Heppe 
Schaefer  v.  O'Brien 
Schafer  v.  Hartz 
I'.  Reilly 

Schaeffer  v.  Bond 
Schaidt  v.  Blaul 
Schalk  V.  Kingsiey 
Schee  v.  McQuilken 
ScheariF  v.  Dodge 
Scheibe  v.  Kennedy 
Scheible  v.  Bacho 
Scheibler,  ?-e 
Scheifele  v.  Schmitz 
Schell  ?'.  Stein 
Schenck  v.  Conover 


1.34  a, 

422 

1214,  1222 

1397 

293,  338 

63 

1503 

894 

583 

744,  1403,  1465 

1351 

305 

1404,  1425 

1740 

917 

86,  611,  788,  844  a, 

1688 

1903 

488 

43,  454 

1491 

218,  891,  892 

1459,  1476 

617,663 

184 

444,  446,  447 

515,  517,  518 

1601,  1611,  1663, 

1688 

V.  O'Neill  616 

Scheppelmann  v.  Feurth  736 

Schermerhorn  v.  Farley  964 

V.  Peck  708 

V.  Talman  1095 

Schiffer  v.  Feagin  360 

Schifferstein  v.  Allison  1198,  1207,  1225 

Schiukel  v.  Hanewinkel  889 

Schlatre  v.  Greaud  751 

Schlawig  V.  Fleckenstein  1161  a 

Schley  v.  Fryer  748,  752 

Schlichter  v.  Brooklyn  Sawmill  Co.     1375  a 

Schluter  v.  Harvey  460 

Schmeltz  v.  Garey  1406 

Schmidt  v.  Hoyt  464 

V.  Mackey  1462 

V.  Opie  627 

U.Potter  1606,1607 

r.  Smith  1926  6 

Schmucker  i'.  Sibert        750,  752,  755,  1198, 

1201,  1202,  1207 

Schoch  V.  Birdsall  471,  1840 

Schoener  v.  Lessauer  626 

Schoenewald  v.  Dieden  ■       1089,  1617 

V.  Rosenstein  1462 

Scholefield  v.  Heafield  1572 

V.  Templer  967 

School  District  v.  Taylor  586 

Schoole  V.  Sail  1216 

Schooley  v.  Romain  76,  1181 

Schoonhoven  v.  Pratt  1053 

Schoonmaker  v.  Tavlor  76,  1179 

Schrack  v.  Shriner"  1620,  1631 

Schradski  v.  Albright  304,  330 

Schreiber  v.  Carey         57,  1521,  1522,  1526, 

1,')31  a,  1616,  1632 


TABLE   OF   CASES. 


References  are  to  Sections. 


Scliilber  v.  Le  Clair 


262,  264,  272,  320, 
332,  335 
Scliroeder  v.  Gtiriicy  467 

Schubart  v.  Hartcau  1490 

Schuelenbiir;;  v.  Martin  305,  729,  900 

Scbulling  V.  Lintner  1675 

Schnits  V.  Moore  488 

Schultz  V.  Mead  1351 

V.  PlanlKiiiton  Bank  1699 

Schultze  V.  Honfes  501,  555 

Schuize  V.  Bolting  99,  365,  378 

Schumitsch  v.  Am.  Ins.  Co.  422 

Schumpert  v.  Dillard      460,  401,  925,  1408, 

1409 
Schutt  V.  Large  553,  558 

Schwallback  v.  Milwaukee,  &c.  R.  R. 

Co.  597 

Schwartz  v.  Palm  1575 

8chwarz  v.  Sears  36,  1921 

V.  Steiu  220 

Schweiss  v.  Woodruff  552,  553 

Schwinger  t'.  Hickok  1716 

Scituate  v.  Hanover  244 

Scobey  v.  Kiningham  1051 

Scofield  V.  Doscher  1223,  1351 

V.  State  Nat.  Bank  134 

Scoles  V.  Wilsey  520 

Scott  V.  Austin  633,  646 

f.  Brest  1132,1526 

V.  Childs  1920 

V.  Clinton  &  S.  R.  R.  Co.       152,  452 

V.  Crosdale  1355 

V.  Featherston  751 

V.  Field  991,  992 

t,'.  Fields  1225 

r.  Freeland  1922 

V.  Frink  888 

V.  Fritz  772 

V.  Gallagher  586,  598 

V.  Gill  758 

V.  Henry         245,  246,  279,  287,  1055, 

1061,  1064 

V.  McFarland        242,  244,  1244,  1262 

V.  Mitgloughlin  612,  628,  841 

V.  M'Murran  462 

V.  Mewhirter  250,  279,  701 

V.  Russ  1573 

V.  Saffold  651 

V.  Sells  1444 

u.  Shy  1926  6 

V.  Sloan  1509 

V.  Somers  1604 

V.  Turner  817 

V.  Ware  670,  1215,  1516,  1521 

V.  Webster       684,  092,  693,  695,  868, 

1628 
Scottish  &  Am.    Mortg.  Co.  v.   Mox- 

son  113 

Scribner  v.  York  1439 

Scripter  v.  Battleson  1343 

Scripture  i'.  .loliii.son  1083 

Scriven  v.  llur.sh  874  c,  15y.'J 

V.  Moote  697,  1658 

Scrivncr  v.  l^ietz  848,  870,  872,  873 

Scroggins  v.  lloadley  218 

VOL.  II.  57 


Scruggs  V.  Railroad  Co. 

V.  Scruggs 
Scudder  v.  Union  Nat.  Bank 
Seabrook  v.  Brady 
Seagram  v.  Kniglit 
Sea  Grove,  &c.  Asso.  v.  Stockton 


1123 

1211 

656,  657 

583 

1156 

1051, 

1350 

Sea  Ins.  Co.  v.  Stebbins      1516,  1521,  1527, 

1528,  1531,  1.532,  1536 

Seals  V.  Casliin  36 

Seaman  v.  Fleming  365,  369 

V.  Hax  665 

V.  Hicks  1645,  1040  a,  1649 

w.  Huffaker  120,1597 

17.  Riggins  1075 

Searing  v.  Benton  1713 

Searle  v.  Adams  74,  1141 

V.  Chapman  731,  1280,  1032 

V.  Sawyer  089,  692,  695  a 

Scars  V.  Dixon  258,  265 

V.  Henry  1618 

Seaton  v.  ScoviU  1600 

V.  Twyford  1177,  1859 

Seaver  w.  Durant  1110 

V.  Spink  474 

Sebrell  v.  Couch  1485 

Sebriug  v.  Conkling  1709  b 

Seckler  v.  Delfs  30,  669 

Second  Nat.  Bank  v.  Grand  Lodge       761  c 

V.  Swan  1051  b 

Second  Ward  Bank  v.  Upmann  244 

Secor  V.  Singleton  1654 

Security  Co.  v.  Arbuckle  113 

V.  Eyer  1606 

V.  Graybeal  964 

V.  Kent  612  a 

V.  Hichardson  964  a 

Security  F.  Ins.  Co.  v.  Martin  1467 

Security  Loan  Asso.  v.  Lake       1801,  1804, 

180.5,  1806 

Sedam  v.  Williams  1463 

Sedgwick  v.  Cleveland  1233 

V.  Fish  1615 

V.  Grinnell  12.33 

v.  Luflin  67,  661 

Seeley  v.  Hills  1472 

V.  Maiming  672 

V.  Mitc-hell  119,  120 

Seevcrs  v.  Delashmutt  459 

Sefton  v.  Hargett  1030 

Segrest  v.  Seyrest  1107 

Sehorn  v.  McWhirter  218,  226 

Seibergcr  i'.  Cam|)l)ell  463 

Seiberling  v.  Tipton  848,  966 

Sc-ignious  v.  Pate  1522 

Seller  v.  Northern  Bank  297 

V.  Wilber  1855 

Scitz  V.  Burning  956,  966 

V.  U.  P.  R.  Co.  219 

Selby  V.  Cooling  1766 

Selilen's  A|i])eal  1355 

Self  u.  Madox  1411 

Seligman  v.  Dudley  1496 

V.  Laubheimer  954,  1333 

Sell  V.  Miller  661 

897 


TABLE    OF   CASES. 


References  are  to  Sections." 


Sellers  v.  Botsford 
V.  Sellers 
V.  Stalcup 

Sellwood  V.  Gray 


644,  1494 

521 

275,  310,  326 

47,  1047,  1055,  1396, 

1654 

518,  528 

47 

1402,  1406,  1425 


Semon  v.  Terhune 
Semple  v.  Bank 

V.  Lee  1402,  1406,  1425,  1514 

V.  Miles  474 

Sepulveda  v.  Baugh  1462 

.'Sergeant  v.  Ingersoll  542 

V.  Martin  612  a 

V.  Euble  975 

Servis  v.  Beattj  217 

Sessions  v.  Kent  874,  964  a 

V.  Peay  1612 

V.  Richmond  1111 

V.  Sherwood  85,  501 

Seton  V.  Slade  1039 

Severance  v.  Griffith        677,  807,  808,  1457 

■Severin  v.  Cole  681  a,  708 

Severson  v.  Moore  1511 

Sevier  v.  Greenway  284 

Sewall  V.  Braiuerd  653 

V.  He3'maker  474 

Seward  v.  Huntington  385,  883  a 

Sewell  V.  Price  322 

.Sewing-Machine  Co.  v.  Emerson  744 

Sexton  V.  Breese  697 

V.  Pickett  727 

Seymour  v.  Bailey  1800 

V.  Canandaigua,    &c.    R.    R. 

Co.  152,  156 

r.  Continental  Ins.  Co.  1141 

V.  Darrow  343,  552,  579,  924 

V.  Davis  1063 

V.  Lay  cook  963 

V.  Mackay      338,  926,  966  a,  971, 

977 

V.  McKinstry  586,  589,  597 

Shaeffer  V.  Chambers  1123,1126,1139 

Shafer  v.  Bear  River,  &c.  M.  Co.  677 

Shall  V.  Biscoe  173,  229 

Shamokin  Val.    R.    R.    Co 

more 
Shanahan  v.  Perry 
Shanks  v.  Klein 
Shannon  v.  Bradstreet 
V.  Dunn 


V.  Hall 
V.  Hay 
V.  Marselis 

V.  Speers 
Shapley  v.  Rangeley 
Sharkey  v.  Sharkey 
Sharp  V.  Barker 

V.  Cutler 

V.  Daugney 

V.  Lumley 

V.  Proctor 

17.  Shea 

V.  Sraitherman 
Sharpe  v.  Arnott 

V.  Davis 

898 


173, 
Liver- 

156 

735 

1063,  1064 

12 

638 

526 

1858 

1500,  1502,  1621, 

1624,  1631 

1108 

1254 

244 

77,  1606  a 

1489 

1964 

583 

112 

465,  467 

293, 335 

1190 

557 


Sharpe  v.  Foy 

V.  Scarborough 
Sharpnell  v.  Blake 
Sharts  V.  Await 
Shattuck  V.  Bascom 
V.  Kniirht 


566,  602 

1436 

890,  897,  1088 

841,  1229,  1334 

335 

166 


Shaver  v.  Bear  River,  &c.  M.  Co.  1222 

V.  Williams  731,  871,  971 

V.  Woodward  293,  513 

Shaw  V.  Abbott  1070 

V.  Bunny  1884 

V.  Burton  678 

V.  Carpenter  620 

V.  Chamberlin  1589  a 

V.  Dwight  988  a 

v.  Erhkine  241,244 

V.  Gray  1339 

V.  Heisey  1546,  1654 

V.  Hoadley    702,  1402,  1407,  1687, 

1931 

V.  JeflFery  264 

V.  Lenke  433  a 

V.  Lindsey  665 

V.  Loud  63,  385 

V.  McNish  1428 

V.  Newsoni  607 

V.  Norfolk  Co.  R.  R.  Co.      124,  1244, 

1341,  1443,  1547  a 

V.  Spencer  959 

V.  Walbridge  251,  311,  711,  1046 

r.  Wellman  1185 

Shays  v.  Norton  262,  293,  335 

Sheafe  V.  Gerry  70,  71,  1194 

Shear  v.  Robinson  291,  1642 

Shearer  r.  Lof tin  1780 

V.  Mills  936 

V.  Shearer  123 

Shearn  v,  Robinson  587 

Sheckell  v.  Hopkins  1042 

Shed  V.  Garfield  1454 

Shedd  V.  McConnell  1336 

Sheddy  v.  Geran  945,  961,  1298 

Sheeks  v.  Klotz  1536 

Sheffey  v.  Bank  of  Lewisburg  538 

Sheidle  v.  Weishlee  114 

Shelden  i'.  Bennett  908,  1379 

r.  Edwards  431,848,870 

V.  Erskine  84,  135,  1715 

V.  Patterson  1421,  1545 

V.  Wright  1612 

Sheldon  v.  Cox  564,  565 

V.  Haxtum  657,  659 

V.  Hoffuagle  878,  1067 

V.  Holmes  479 

Shellabarger  v.  Binns  906 

Shellenberger  v.  Riser  1440 

Shelly's  Appeal  731 

Shelton  v.  Atkins  1288 

V.  Aultman  &  T.  Co.  635 

V.  Fickliu  444 

V.  Gill  1606 

V.  Hampton  711 

Sheorn  v.  Robinson  586 

Shepard  v.  Burkhalter  51 7 

r.  Jones  1128,1129 


TABLE   OF    CASES. 


References  are  to  Sections. 


Shepard  v.  Philbrick  697,  1658 

V.  Pratt  703 

V.  Richardson  1:^53,  1443,  1547  a, 

V.  Shepard  65,  367,  546,  1187, 

1462,  1472 

V.  Whaley  1633,  1634 

Sheperd  v.  Adams  1621 

Shephard  I'.  Elliot  1139,1140 

Shepherd  v.  Burkhalter  491 

V.  Gwinnet  1439 

V.  May  738,  741,  950 

V.  Murdock  1527 

V.  Orleans  Cotton  Co.  4  56 

V.  Pepper  1329,  1521,  1609, 

1610 

I".  Union  Mut.  F.  Ins.  Co.        422 

Sheppard  v.  Thomas  229 

Sheridan  v.  Wekli  703,  789,  1211  a 

Sheriden  v.  Smitli  899 

Sheriff  v.  Sparks  1108 

Sherman  v.  Sherman  889 

Shermer  v.  Merrill  1939 

V.  Willett      698,  1658,  1751,  1864, 

1905 

Sherrer  v.  Harris  250 

Sherron  v.  Acton  875,  1628 

Sherwood  v.  Archer  634,  934 

V.  Dunbar  984 

V.  Hooker  1107,  1108 

V.  La  Fayette  708 

V.  Landon  1616 

w.  Keade  1613,1751,1829 

V.  Roundtree  642  b 

V.  Saxton  1771,  1903 

V.  Wilson  977,  1060 

Shields  v.  Dyer  1860 

V.  Keys  1414 

V.  Kimbroiigh  1628 

V.  Lozear  9,  43.  889,  892,  973 

V.  Miller  1336 

V.  Schiff  1338 

Shier  v.  Prentis  1709  a 

Shillaber  v.  Robinson  1769,  1827,  1898 

Shimer  v.  Hammond  848,  878 

V.  Shinn  1397 

V.  Smith  114 

V.  Taylor  219 

Shin  V.  Bosart  1454 

Shiner.  Hill  1859,  1915 

SbJnn  V.  Budd  874  h 

V.  Fredericks  229 

V.  Shinn  557,  1397 

V.  Smith  114 

Shipley  V.  Fox  734,  913 

Shippen  v.  Kimball  1406 

Shirk  V.  Andrews  1679 

V.  Williamson  624 

Shirkey  v.  Hanna  1368 

Shirley  v.  Burch  86,  90 

Shirras  v.  Caig       141,  343,  365,  367,  367  a 

368,  377,  379,  507,  710 

Shitz  V.  Dieffenbach  180 

Shiveley  v.  Jones        1337,  1414,  1645,  1651 

Shivers  v.  Hand  706 

Shockley  v.  Shockley  1393 


172 

64,  343,  560 

1427 

574 

351,367 

1589 

113,  117,  200,  460 

244,  253 

877 

1473, 1474 

551,  557 

480,  842 

1516,  1521,  15.34 

710 

1046,  1114 

504 

874  a,  1536 

44 

1.333 

495 

462,  464 

151,  439 

252 


Shoecraft  v.  Bloxliam 
Shoemake  v.  Smith 
Shoemaker  v.  Austin 

V.  Chai)j)ell 
Shores  v.  Doherty 

V.  Scott  River  Co. 
Short  V.  Battle 

V.  Caldwell 
V.  Currier 
V.  Nooner 
Shotwell  V.  Harrison 
V.  Matthews 
V.  Smith 
Shoufe  V.  Griffiths 
Shouler  v.  Bonander 
Shove  V.  Larsen 
Shreve  v.  Hawkin-on 
Shriver  v.  Siiriver 
Shroeder  v.  Bauer 
Shryrock  v.  Cannon 

V.  Waggoner 
Shuart  v.  Taylor 
Shubert  v.  Stanley 

Shufelt  I'.  Shufelt  644,  745,  1223,  loll 

Sliuler  V.  Hardin  736 

Shultz  V.  Hansbroiigh  1813 

Shurtletfr.  Francis  790 

Shute  V.  Grimes  702 

Sibley  v.  Baker  1629 

V.  Leffingwell  544,  586 

V.  Rider  936 

Sichel  i'.  Carrillo         1202,  1203,  1214,!  1606 
Sichler  r.  Look  1179/),  1182a,  1473, 

1589 

Sickles  V.  Flanagan  641 

Sickmon  v.  Wood  66,  99 

Sidenberg  i\  Ely  1134 

Sidener  o.  Pavey  847  c,  966,  966  a 

Sidle  V.  Maxwell  474 

Sidway  v.  Sidway  335 

Sidwell  V.  Wheaton  740 

Siegel  I'.  Drumm  635 

Siemers  v.  Schrader  1834 

Siewart  v.  Hamel  1709  b,    1721 

Siffken  v.  Davis  1397 

Sigourney  v.  Drury  1198 

V.  Larned  488 

V.  Munu  569,  574 

Sigworth  V.  Meriam  464 

Sill  V.  Ketchum  1383 

Sillers  v.  Lester  151,  152 

Silliman  v.  Gammage  848,  870,  873 

V.  Wing  1051 

Silloway  v.  Brown  35,  80,  667,  1121 

Silly  man  v.  King  554 

Silsbee  v.  Lucas  293 

V.  Smith  1095 

Silva  V.  Serpa  1490 

Silver  v.  Barnes  638 

V.  Bishop  of  Norwich  1524 

Silver  Lake  Bank  v.  North  134,  358, 

1080,  1597,  1683 

Silver  Val.  Min.  Co.  v.  Baltimore 

G.  &  S.  M.  &  S.  Co.  624 

Silverman  v.  Bullock  838 

899 


TABLE   OF   CASES. 


References  are  to  Sections. 


Silverman  i'.  N.  W.  Mut.  L.  lus.  Co 


Simanovich  v.  Wood 
Simar  v.  Canaday 
Simers  v.  Salt  us 
Simerson  v.  Branch  Bank 
Simmons  v.  Ballard 

i\  Lyle's  Adni. 


667, 

1516 

1897  a 

1420,  1645 

1502 

1653 

1149 

1897a 


Simmons  Hardware  Co.  v.  Brokaw       1230, 

1347,  1447 

Simms  v.  Eichardson  1218,  1414 

Simon  v.  Sewell  488,  506 

V.  Schmidt  250,  251,  309 

Simons  v.  Bryce  50 

V.  First  Nat.  Bank        384,  460,  573 

Simonson  v.  Blake  1475,  1477,  1578 

V.  Falihee  504,  515,  517 

Simonton  v.  Gray  848 

V.  Lanier  1808 

Simpkitison  v.  McGee  523 

Simpson  v.  Ammons  667 

V.  Castle  1051  c,  1324 

V.  Del  Hoyo  1487 

V.  Dix  1307 

V.  Edmiston  388 

V.  Gardiner  878 

V.  Mundell  495 

V.  Kobert  610 

Sims  w.  Adams  1526 

V.  Bank  1420 

V.  Cross  1467 

V.  Field  1897 

V.  Gaines  244,  627 

r.  Hammond  540 

V.  Hundly  1744 

Simson  v.  Brown  763 

r.  Ingham  906,  908 

V.  Satterlee  1375 

Sinclair  v.  Armitage  136,  173 

V.  Learned  1055  a 

V.  Slawson  504,  517 

Singer  v.  Jacobs  551 

Singer  Manut.  Co.  v.  Chalmers      459,  1862 

V.  Rawson  626 

V.  Book  500 

Singleton  v.  Scott  1857,  1859 

Sinking  Fund  Comm'rs  v.  Bank  1375 

Sinnett,  tn  re  1232 

Sire  V.  Wightman  1179,  1186 

Sisson  V.  Hibbard  436  a 

V.  Tate  1248,  1261 

Siter  V.  McClanachan  537 

Sitler  V.  McComas  495,  533 

Sitz  V.  Delhi  219 

Sixth  Ward  Build.  Asso.  r.  Wilson       458, 

522 
Skaggs  V.  Nelson  229 

Sked  V.  Sedgley  1668 

Skeel  V.  Spraker      848,  853,869,  1092, 1621 
Skeele  v.  Stocker  605 

Skelton  v.  Scott  682 

V.  Ward  1334,  1719 

Skillman  v.  Teeple  970 

Skilton  V.  Roberts  1897  a,  1927 

Skinner  v.  Beatty  1663 

900 


Skinner  v.  Brewer 

1244, 

1255 

V.  Buck 

20, 

1406 

V.  Cox 

69 

V.  Miller 

258,  297, 

1060 

V.  Reynick 

744 

V.  Smith 

1145 

V.  Young 

1064 

Skipper  v.  Stokes 

136 

Skipwitli  V.  Cunningham 

88 

Slack  V.  Emery 

729 

Slade  V.  Rigg 

1773 

Slater  v.  Breese  66,  736,  1462,  1628 

V.  Maxwell  1858 

Slattery  v.  Schwannccke  1654 

Slaughter  v.  Foust  1414 

V.  State  964  a 

Slauson  v.  Watkins  738,  758,  768 

Slayton  v.  Mclutyre  889,  1298,  1310, 

1313,  1315 

Sledge  V.  Obencbain  924,  926,  927  a 

Slee  V.  Manhattan  Co.  326,  785,  827, 

870a,  963,  1059,  1111,  1135, 

1144,  1158,  1602,  1751, 1767, 

1787,  1882,  1898 

Sleeper  v.  Iselin  1521 

Slicerr.  Bank  ,         1144,1157 

Slingerland  v.  Sherer  1206,  1719 

Sloan  V.  Becker  335 

V.  Coolbaugh  1806,  1808 

V.  Frothingham  1786,  1922 

V.  Holcomb  474,  1492 

j;.  Rice  924,  926 

Sioat  r.  Bean  1186 

Slocovich  V.  Oriental  Mut.  Ins.  Co.         397 

Slocum  V.  Catlin  848,  870,  924 

V.  Pomeroy  657 

Slowey  V.  McMurray  265,  269,  304 

Slutz  V.  Desenberg  311 

Smack  v.  Duncan  1708 

Small  V.  Staga  530 

V.  Williams  618,  626 

Smailey  v.  Hickok  1053,  1274,  1569 

V.  Martin  1577 

y.  Renken  1179,1185,1186 

Stnallwood  v.  Lewin  538 

Smart  v.  Bement  835,  1611 

V.  Hunt  1122,  1168 

V.  McKay  1181 

Smiley  v.  Pearce  335 

Smillie  v.  Titus  626 

Smith,  in  re  1927 

Smith  V.  Am.  L.  Ins.  &  T.  Co.  1668 

r.  Anders  1077,1088,1322 

V.  Atkins  1479 

V.  Austin  874  a,  1055 

V.  Ayer  560 

r.  Bailey  1108  a 

?'.  Bartholomew  1488 

V.  Black  1862,  1882,  1915 

V.  Bowen  542 

V.  Bowne  1331 

V.  Brackett  605 

i;.  Branch  Bank      474,581,582,598 

V.  Brand  294,  1545  a 

V.  Base  ^        1743 


TABLE   OF   CASES. 


References  are  to  Sections. 


Smith 


B)num 
Cannell 

927  a 
68 

Carson 

116,  117 

Chapman 
Columbia  Ins. 

1057,  1396,  1558 
Co.               399,419 

Conrad 

612 

Cremer         293,  323,  331,  334,  335 

Crosby 

258,  261,  265 

Cross 

641,  745 

Cunningham 

1701  a 

Dail 

493 

Davis 

1411,  1442,  1774a 

De  liussy 

1656 

Dinsmore 

877,  878 

Doe 

973,  1769 

Doyle 

266,  332 

Diinton 

560 

Dyer 

80,  700,  1248,  1288 

Filing 

1502,  1504 

Foran 

874 

Foster 

1146 

Gibson 

589 

Goodwin 

142,  687 

Graham 

361,  744 

Green      66,  663,  1051,  1087,  1102, 

1822 

Greenop 
Hague 

591 
239,  1658 

Harry 

383 

Hathorn 

647 

Henning 

1889 

High 

220 

Hitchcock 

808,  811 

Hollister 

634 

Hoyt 
Jackson 

1586 
589, 591 

Johns 

71,  702,  719,  1244, 

1289 

Jones 

1289 

Jordan 

466,  467,  557 

Kelley 
Keohane 

787,  889,  1072,  1273 
479 

Kerr 

121 

Kidd             95 

7,  964,  964  a,  1492  a 

Knoebel 

331, 339 

Lackor 

172 

Lamb 

950 

Larrabee 

1265 

Lewis 

680,  713,  714 

Lindsey 
Lowry 

526 
515,  574,  864,  1004 

Lowther 

1862 

Lumber  Co. 

630  a 

Mace 

94,  1333 

McEvoy 

1360 

Manning 

1099 

Marvin 

643 

Mason 

1235 

Miller 

588 

Monmouth  F. 

Ins.  Co.        2.53,  423 

Moore          218,  687,  689,  692,  694, 

702,  817,  1334 

Myers 
Neilson 

1637 
476,  874  a 

Nettles 

538 

Smith  V.  Niagara  F.  Ins.  Co.  1210 

V.  Newton  612,  1484,  1508 


113,  621 
758,  878 
1264 
1646 
294 
136 
72,  3.')3 
814 
1334 
528 
769 
218 
934 
138,  1064,  1904 
677,  67.^ 
848,  855,  1080,  1439, 
1589 
173,  1105,  1572 
900 
217,  234 
1693 
268,  293 
1439 
1075 
742 
777 
667,  1215,  1355 
1048 
244,  342  c,  511,  546,  808, 
812,  897,  953,  969,  974  a, 
1459,  1469  a,  1685,  1687, 
1931 
1387 
924 
830 
626 
822 
1225 
848,  871,  873 
665 
668,  698 
237 
797,  1521,  1528 
114,  115,  942 
V.  Trenton  Del.  Falls  Co.  704 

V.  Truslow  738,  749,  758 

V.  Union  Ins.  Co.  406 

i\  Valentine  1668 

V.  Vincent  664,  889 

V.  Von  Hutton  83  a 

V.  Vreeland  559 

V.  Walser  542 

V.  Washington  City,  &c.  R.  R. 

Co.  1204 

V.  Webb  1389 

V.  Wilson  112 

V.  Worman  460 

V.  Yule  548,  586,  591,  594 

Smith  Co.  V.  McGuinness  171 

Smith  Paper  Co.  r.  Servin  444 

Srnithhurst  v.  Edmunds  149 

Smitliwick  v.  Kelly  102 

Smyth  V.  Carlisle  243 

901 


V.  Osborn 

V.  Ostermeyer 

V.  Packard 

V.  Painter 

r.  Parks 

V.  Patton 

V.  People's  Bank 

V.  Perkins 

V.  Pierce 

V.  Pollard 

V.  I'ond 

V.  Price 

I'.  Prince 

y.  Provin 

V.  Rice 

V.  Roberts 


V.  Robinson 
V.  Rockwell 
V.  Rowland 
V.  Rumsey 
V.  Sackett 
V.  Shaffer 
V.  Shay 
V.  Shelden 
V.  Shepard 
V.  Shuler 
V.  Sinclair 
V.  Smith 


V.  Smoult 
i;.  Stanley 
V.  Starr 
V.  Steely 
V.  Stevens 
V.  Stewart 
V.  Swan 
V.  Sweetser 
V.  Taylor 
V.  Turner 
V.  Tiffany 
V.  Townsend 


TABLE   OF   CASES. 


References  are  to  Sections. 


Smyth  V.  Knickerbocker  L.  Ins.  Co 


V.  Lonibardo 

V.  Munroe 
Smythe  v.  FitzsimmoDS 
Suavely  v.  Pickle 


482, 

683 

1495 

616,  631,  683 

117 

265,  279,  318,  326, 

1139, 1197 


Southbridge  Sav.  Bank  v.  Stevens  Tool 


Snetleker  v.  Warring      428,  433  a 

436,  447 

Sneed  v.  Ward 

493 

Snell  V.  Palmer 

979 

V.  Snell 

97,  99 

Snelling  v.  Mclntyre 

874  c 

Snow  V.  Lake 

474 

V.  Pressey 

244,  1259 

V.  Stevens 

664,  666 

V.  Warwick  Inst. 

1132,  1924,  1925, 

1933 

Snowman  v.  Harford 

583 

Snyder  v.  Blair 

1709  a 

V.  Braden 

626 

Snyder  v.  Bunnell 

69, 1469 

V.  Chicago,  &c.  11 

R.  Co. 

681,  708 

V.  Greaves 

332 

V.  Griswold 

261,  293 

V.  Martin 

464 

V.  Partridge 

99,  708 

V.  Robinson 

907 

V.  Snyder 

619,  848 

V.  Sponable 

567,  569 

V.  Stafford 

1351,  1611,  1687, 

1934 

V.  Summers 

769 

Socicte  D'E])argnes  v.  McHenry 

1236 

Soggins  V.  Heard 

303 

Sohier  v.  Loring 

742  a 

Solberg  v.  Wright 

822,  1785 

Soles  V.  Sheppard 

1606 

Solms  V.  McCulloch 

464,  538 

Solon  V.  Sav.  Bank 

1492  a 

Solt  V.  Wingart 

1934 

Somers  v.  Cresse 

966 

Somersworth  Sav.  Bank 

V.  Roberts          71, 

250,  344 

Somes  V.  Brewer 

559 

V.  Skinner           5i 

8,  679,  I 

280,  1307 

Soper  V.  Guernsey 

388 

,  395,  688 

Sorchan  v.  Mayo 

1537  a 

Souder  v.  Morrow 

523 

Souders  v.  Vansickle 

777 

Soule  V.  Albee 

343,  1404 

i\  Chase 

1835 

V.  Corbley 

484 

V.  Ludlow 

1669,  1906,  1911 

V.  Shot  well 

460 

V.  Union  Bank 

416 

South  Berwick  v.  Huntress 

90 

South   Carolina  Loan,   &c.  Co.  v 

Mc- 

Pherson 

458,  463 

South  Sea  Co.  v.  Duucorab 

70 

South  St.  Louis  Ry.  Co. 

y..  Plate 

1176 

Southampton  Boat  Co.  v. 

Muntz 

1807 

Southard  v.  Dorrington 

1134,  1597 

Souihbiidjre  Sav.  Bank  t 

.  Exeter 

Ma- 

chine  Works 

429,'436 

,  444, 446 

Southbridge  Sav.  Bank  v 

Mason 

429,  444 

902 

25, 


560 


Co.  435 

Souther  v.  Wilson 

Southerin  v.  Meudum  42,  813,  817 

Southerland  v.  Harper 
Southern  Pacific  Ry.  Co.  v.  Doyle 
Southern  White  Lead  Co.  v.  Haas 
Southworth  v.  Paiker 
V.  Scofield 
Soutter  V.  Miller 
Soverhill  v.  Suydam 
Sowden  v.  Craig 
Sowell  V.  Barrett 
Sowle  V.  Holdridge 
Sowles  V.  Buck 
V.  Day 
V.  Harvey 
V.  Witters 
Spader  v.  Lawler  364,  368 

Spalding  v.  Bank 

Sparhark  v.  Bagg  35, 

V.  Wills       1072,  1126,  1276, 

Sparkman  v.  Gove  752 

Sparks  v.  He.ss  217 

V.  Pico 

V.  State  Bank  446,  535 

Spalding  v.  Crane 
V.  Davis 
V.  Hallenbeck 

V.  Harvey  i 

V.  Scanland 
Speakman  v.  Oaks  1493, 

Spear  v.  Hadden 

V.  Ward 
Spears  v.  Hartly 
Speck  V.  Car  Co. 
V.  Riggin 
Spect  V.  Spect 
Speer  v.  Evans 

V.  Hadduck 
V.  Whitfield 
Speiden  v.  Parker 
Spence  i'.  Scott 

V.  Steadman 
Spencer  i'.  Annon 
V.  Ayrault 
V.  Fredeudall 
V.  Harford 
V.  Haynes 
V.  Levering 
V.  Pierce 
V.  Spencer   • 
V.  Waterman 
Spengler  v.  Snapp 
Sperrer  v.  Harris 
Sperry  v.  Horr 
Spicer  v.  Hunter 
Spielmann  v.  Kliest 
Spies  V.  Newberg 
Spiller  V.  Scribner 
Splahn  V.  Gillespie 
Spofl^ord  V.  Manning 

V.  Weston 
Sporle  V.  Whayman 
Spottswood  ;;.  Herrick  903, 


1499, 
145G, 


544 
674 


364 


264.  265 


627,  634,  848 

320 

951, 

166,  185,  187, 


'42, 


1334,  1647, 


545 


,  436 
1263 
,  889 
1815 
1769 

627 
1629 

848 
1769 

919 

524 
1060 

237 
1381 
,  562 
1647 

950 
,372 
1606 
,  664 
1296 
,  768 
,234 
1204 
,  608 

869 

745 

752 
574  a 

508 

ieo6 

1497 

114 

1204 

1922 

545 

,  715 

518 

1891 

,  954 

429 

1324 

,  292 

1855 

,  857 

,  947 

1567 

1335 

358 

74 

1225 

707 

644 

244 

1606 

241 

478 

177 

65 

1652 

589 

,  548 

181 

1855 


TABLE   OF   CASES. 


References  are  to  Sections. 


Spoor  V.  Phillips 

1322 

Sprague  v.  Graham 

828, 834, 1112 

V.  Jones 

1709  a 

V.  Rockwell 

481,  1361 

V.  White 

597 

Spray  v.  Rodman 

874  a 

Sprigg  V.  Bank 

285 

Spring  V.  Haines 

1249,  1254 

V.  Reed 

642 

Springer  v.  Drosch 

283 

V.  Vanderpool 

1233 

Springfield  F.  &  M.  Ins.  Co.  v.  Allen     406, 

412,  413 
Springfield   Sav.  Bank   v.  Springfield 

Cong.  Soc.  99 

Spurgeon  v.  Collier  1039,  1041 

Spurgin  v.  Adamson  848,  1064,  1069, 

1072,  1080,  1395,  1431 

w.  Traub  113 

Spurlock  V.  Sullivan  460 

Spurr  V.  Andrew  735 

Spyche  v.  Werner  741 

Squier  v.  Norris  1636 

V.  Shepard  767 

Squire  v.  Wright  1055  a 

Staats  V.  Bigelow  1775 

Stacv  V.  Barker  1465 

Stackpole  v.  Arnold  300 

?;.  Robbins      812,936,953,1679, 

1681,  1902,  1921 

Stafford  V.  Ballon  551,  603 

V.  Jones  380 

V.  Van  Rensselaer  534,  608 

Stafford  Nat.  Bank  v.  Sprague  62,  600, 

630  a 
Stafford  Sav.  Bank  r.  Underwood  110, 

113 

Stagg  V.  Small  586 

Stahl  V.  Charles  1639 

)}.  Dehn  269,  270 

V.  Hammontree  1502 

V.  Roost  936 

Stainback  v.  Geddy  1069 

Staines  v.  Rudlin  1572 

Stalker  v.  M' Don  aid  460,  556 

Stall  V.  Cincinnati  311 

V.  Wilbur  697 

Stallings  v.  Thomas  1774,  1876  a 

Stalworih  v.  Blum  79,  901 

Stampers  v.  Johnson  258,  316 

Stanard  v.  Eldridge  44 

Stanbrough  y.  Daniels  966  a,  1406 

Stanclift  v.  Norton  76,  77,  1179 

Standish  v.  Dow  1439 

V.  Vosberg  1459,  1859,  1937 

Stanford  v.  Andrews  350,  1872 

V.  Broadway  Sav.  Bank  1457, 

1483 

Stang  V.  Redden  1637 

Stanhope  v.  Dodge  344 

V.  Manners  1176,  1557 

V.  Vcrney  540 

Stanley  v.  Beatty  822,  1378,  1699 

V.  Chamberlin  560 

V.  Green  560 


Stanley  v.  Kempton 
V.  Mather 
V.  Valentine 

Stanly  v.  Stocks. 

Stansel  v.  Roberts 

Stansfield  o.  Hobson 


1298 

1387 

966  a 

1620,  1626 

469,  470,  472,  539 

1163, 1164, 1167, 

1171,  1368 

Stanton  v.  Ala.  &  C  R.  R.  Co.  1535 

V.  Kline  1751 

Stantons  v.  Thompson  848,  870,  873 

Staples  V.  Fenton  594,  597 

V.  Nott  659 

Stapleton  v.  Conway  660 

Stapp  V.  Phelps  297 

Stapylton  v.  Scott  1648 

Stark  V.  Brown       57,  716,  808,  1396,  1406, 

1414,  1678 

V.  Coffin  901 

V.  Mercer  1711 

Starks  v.  Redfield  320 

Starkweather  v.  Hawes  1321 

Starling  v.  Blair  65 

Starr  v.  Ellis  848 

V.  Haskins  843 

State  V.  Bailey  1323 

V.  Bradish  574 

r.  Brown  1126 

c.  Bvrne  406 

V.  Davis  515,  519,  752 

V.  Doane  1638 

V.  Easton  &  A.  R.  R.  Co.  681  a 

V.  Frazier  1484 

V.  Griffith  1771 

V.  Hemingway  383 

V.  Holliday  1612 

V.  Insurance  Co.  609 

V.  Kennett  113 

V.  Lake  924,  927  a,  936 

V.  Loveless  609 

V.  Nauert  627 

V.  Northern  C.  R.  R.  Co.         154,  452 

V.  Ragland  45 

V.  Titus  1576,  1621 

State  Bank  v.  Abbott  140G,  1679 

V.  Chapelle     62,  134,  626, 1773, 

1902 

V.  Frame        460,  544,  547,  814, 

817 

V.  Green  1638 

V.  Hinton  1693 

V.  Tweedy  822,  1077,  1699, 

1700,  1701 

V.  Wilson  1333,  1443 

State  Ins.  Co.  of  Missouri  v.  Todd  399 

State  Nat.  Bank  v.  Flathers  834 

State  Sav.  Bank  v.  Harbin  1632 

V.  Kerchcval  429,  433, 

684 

V.  Shaffer  94 

Staton  V.  Davenport  586 

Stayton  v.  Riddle  1493 

Stead  V.  Grosfield  489 

Stearns  v.  Bennett  366 

V.  Godfrey  927  a 

V.  Porter  344,  513 

903 


TABLE   OF   CASES. 


References  are  to  Sections. 


Stearns  v.  Quincy  F.  Ins.  Co.  400,  408 

V.  Welsh  1634,  1874 

Stears  v.  HoUenbeck  680 

Stebbins  v.  Duncan  495,  526 

V.  Hall  748,  749 

V.  Howell  968 

V.  Miller  747 

V.  Watson  90 

V.  Willard  878 

Stedman  v.  Perkins  515 


Steel  V.  Black 

V.  Brad  field 
V.  Steel 
Steele  v.  Boone 
V.  Mansell 
V.  Williams 
Steere  v.  Childs 


275,  310,  328 

76 

35,  69,  242,  250 

526 

458 

65 

1622,  1625 


Steffian  v.  Milmo  Nat.  Bank  460 

Steffin  V.  Bauer  500 

Steiu  V.  Indianapolis,  &c.  Asso.  1494 

V.  Sullivan  479 

Steinbeck  v.  Stone  1469,  1574 

Steiner  v.  Clisby  534,  569 

V.  Ellis  992 

V.  McCall  460 

Steinhardt  v.  Cunningham  1418,  1695 

Steinkcmeyer  v.  Gillespie  172,  229 

Steinmitz  v.  Lanpf  917 

Steinnick's  Appeal  332 

Stell  V.  Paschal  423 

Stelie  V.  Andrews  634,  1627 

Stephen  v.  Beall  1880 

Stephens  v.  Allen      172,  258,  271,  272,  279, 

281,311a 

V.  Anthony  229 

V.  Bichneli  1545 

V.  Casbacker  764 

r.  Clay  21,736,1621,1769, 

1771a 

V.  Greene  Co.  Iron  Co.    226,  1215 

V.  III.  Mut.  F.  Ins.  Co.     397,  1661 

V.  Monongahela  Bank  724 

V.  Muir  644,  745 

V.  Weldon  834,  1504 

Stephensou  v.  Arnold  330 

V.  Haines  469 

V.  January  1840 

r.  Miller  118 

V.  Thompson  241,  268,  323, 

332 

Steppus  V.  Beall  113 

Sterling  F.  Ins.  Co.  v.  Beffrey  413 

Sternberg  v.  Valentine         1629,  1771,  1915 

Sternberger  v.  Hanna  1621 

Stetson  V.  Everett  1270,  1272 

V.  O'Sullivan  1888 

Stevens  v.  Bachelder  515 

V.  Brecn  627 

V.  Brown  36,  667 

V.  Buffalo,  C.   &  N.  y.  R.  R. 

Co.  155 

V.  Buffalo  &  N.  Y.  C.  R.  R. 

Co.  452 

V.  Campbell    1402,  1404,  1422, 1465 
V.  Chadwick  217,229 

904 


Stevens  v.  Church 
V.  Cooper 


^37 


309,  722,  982,  1089, 

1090,  1627,  1631 

v.  De  Cardona  1180 

V.  Dedham  Inst.  1144,  1152 

V.  Dufour  1 228 

V.  Ferry  1363,  1444 

V.  Goodenough  548,  874,  879 

V.  Hampton  474,  488,  495 

V.  Hayden  409 

V.  Higginbotham  1490 

V.  Hulin  597 

V.  Mfers  642  a 

V.  Minor         1072,  llOG,  1108,  1566 

V.  Morse  474,  488 

V.  Reeves  634,  635,  1375 

V.  Taft  700 

V.  Veriane  1602,  1603 

V.  Watson  152,  464 

Stevens  Institute  v.  Sheridan  745,  752 

Stevenson  v.  Adams  979 

V.  Black  751,  822,  1701 

V.  Edwards  1065,  1123,  1411 

V.  Hano  1835,  1873 

V.  Maxwell  237 

V.  Saline  Co.  3.30 

V.  Tex.  Ry.  Co.  465,  467 

Steward  v.  AVelch  387,  817,  821 

Stewart's  Appeal  312,  335 

Stewart  v.  Ackley  283 

r.  Babbs  113 

V.  Brown  893,  1847,  1849 

V.  Clark  1277,  1309,  1310 

V.  Croj-by  889 

V.  Davis           718,  1240,  1273,  1307 

V.  Doughty  697 

V.  Fellows  281 

V.  Huff    _  489 

V.  Hntchins  166 

V.  Hutchinson  188 

V.  McMahan  981 

V.  McSweeney  510 

V.  Mathews  474 

V.  Nettleton  1577 

V.  Petree  650,  652 

V.  Raymond  R.  R.  Co.  681  a 

V.  SniUh  468,  473 

V.  Whitlock  625 

Stewartson  v.  Watts  224 

Stich  V.  Dickinson  1441 

Stickney  v.  Evans  1821,  1840 

V.  Stickney  1594 

Stiger  2;.  Bacon  1504,1628 

V.  Bent  1080 

r.  Mahone  1432,1711,1887 

Still  V.  Buzzell  1060,  1095,  1111,  1122 

Stillman  v.  Looney  617,  663,  673 

V.  Norriirup  643 

V.  Stillman  879,  921 

Slillwell  y.  Adams  1181 

V.  Hamm  1100 

V.  McDonald  464 

V.  M'Neely  1383 

Stilwell's  Estate  1695 

Stilwell  V.  Kellogg  616,  1.507,  1710 


TABLE   OF   CASES. 


References  are  to  Sections. 


Stimpson  v.  Bishop  924 

V.  Tease  873,  971 

Stinchfield  v.  Milliken  241,  265,  268,  282, 

298,  3.31,  413,  418,  420,  1050,  1052 

Stine  V.  Wilkson  1838 

Stinnett  v.  House  510 

Stinsou  r.  Pepper  1078,1917 

V.  Ross  664 

Stockbridire  Iron   Co.  v,  Hudson   Iron 


Co. 

335 

Stockett  V.  Taylor 

548 

Stocking  V.  Fairchild 

244 

Stockman  ?;.  Wallis 

1 533 

Stockmeyer  v.  Tobin 

1338 

Stocks  V.  Young 

1095 

Stockton  B.  &  L.  Asso.  v. 

Chalmers      1423 

Stockton  I'.  Ctaddick 

710 

V.  Dundee  Manu 

f.  Co. 

1586 

V.  Johnson 

822 

Stockwell  V.  Campbell 

433  a 

V.  Mc Henry 

518 

V.  State 

541 

Stoddard  v.  Forbes 

1047,  1333 

V.  Hart 

357,  889 

V.  Rottou 

514,  867 

V.  Whiting 

309,  331,  476 

Stoever  v.  Stoever 

244,  1940 

S  toff  el  (■.  Schroeder 

1915 

Stokes  V.  Clendon 

1435 

V.  Maxwell 

1411 

V.  Biley 

548,  552 

Stone  V.  Ellis 

765,  1070 

V.  Godfrey 

1067 

V.  Lane 

357,  1079 

V.  Lannon 

990 

V.  Locke 

1103, 

1141,  1377 

i;.  Patterson 

775 

V.  Scripture 

960 

V.  Seymour 

1139 

V.  Welling 

372 

Stonehewer  v.  Thompson 

1069,  1436 

Stoney  v.  Shultz 

1615, 

1621,  1678 

Storch  V.  McCain 

964  a 

Storer  v.  Little 

1243,  1261 

V.  McGaw 

899 

Stores  V.  Snow 

629 

Storey  v.  Krewson 

892,900,  1004 

Storms  V.  Storms 

345 

Story  V.  Hamilton 

1927 

V.  Johnson 

105 

S  to  ugh  ton  V.  Pasco 

70,  346,  367 

Stout  V.  Polger 

769,  1472 

V.  Keyes 

1661 

V.  Lye 

1233,  1411 

V.  Kider 

642 

Stoutz  V.  House       286,  32 

6,  711, 

1045,  1046 

Stover  V.  Bounds 

176,  1041 

V.  Eycleshiraer 

150 

V.  Johnnycake 

1606  a 

V.  Wood 

966 

Stow  V.  Tifft 

468 

Stowe  V.  Merrill      244,  35 

1,  352 

1239,  1240 

V.  Kussell 

892 

Stowell  V.  Pike 

687,  689,  721 

Strachn  v.  Foss 

925 

734 

530,  723, 1439 

1048,  1119,  1123,  1393 

99,  162 

1882 

220   224   229 

1439,  1587, 'l 61 2 

271 

813 

224 

1292 

275,310,  328 


Strafford  v.  Lane 
Straight  v.  Harris 
Strang  v.  Allen 
V.  Beach 
Stratford  v.  Twynam 
Stratton  v.  Gold 

V.  Reisdorph 

V.  Sabin 

Strause  w.  Josephthal 

Strauss's  Appeal 

Straw  V.  Greene 

Streator  v.  Jones 

Street  v.  Beal  1072,  1074,  1425,  1680 

V.  United  States  1838 

Streeter  y.  Ilsley  1840 

Strever  v.  Earl  787 

Stribling  v.  Bank  117 

V.  Splint  Coal  Co.  959,  974 

Strickland  v.  Kirk  586 

r.  Summerville  226 

Stricklin  v.  Cooper  224 

Stringham  v.  Brown  1808 

Strobe  v.  Downer  1439,  1589  a 

Strohauer  v.  Voltz  736,  768 

Strohn  v.  Hartford  F.  Ins.  Co.  408 

Strong  V.  Blanchard  1105,  1129,  1134, 

1138,  1271 
V.  Burdick  1080,  1081 

y.  Catton  1634,1670 

V.  Converse  666,  738,  748,  864, 

865 
V.  Ehle  468 

V.  Jackson  805,  807,  817,  837, 

842 

V.  Laurence  99 

V.  Manuf.  Lis.  Co.  397,  398 

y.  Shea  293,328,331,586 

V.  Smith  488 

V.  Stewart  309 

V.  Strong  293,  335,  9.50 

r.  Tomlinson  1742 

V.  Van  Deurson  473,  536 

y.  Waddell  116,1483,1646 

Stronghill  v.  Austey  129 

Strother  v.  Law  1789,  1792,  1871 

Stroud  V.  Casey  1587 

V.  Lockart  466,  559 

Struhle  V.  Neighbert  1462 

Struthers  v.  Drexel  639 

Struve  V.  Childs  1447,  1801,  1803,  1806 

Stryker  v.  Hershy  242,  265 

V.  Storm  1675,  1676 

Stuart  V.  Gay  1615 

V.  Hervey  752 

V.  Phelps  622 

r.  Worden  101,761a 

V.  Worrall  1108 

Stubbs  V.  Houston  103 

Stucker  v.  Stucker  1368 

Studabaker  v.  Marquardt      745,  1491,  1493 

Studebaker  Manuf.  Co.  v.  McCargur 

Co.  821,  1193,  1459,  1701  a 

Stuffier  y.  Puckett  112 

Sturcli  V.  Young  1519 

Sturdevant  v.  Mather  680 

905 


TABLE   OF   CASES. 


References  are  to  Sections. 


Sturgeon  v.  Daviess  Co.  1454 

Sturges  V.  Crowninshield  1204 

Stuitevant  v.  Jaques  9.59 

);.  Sturtevant  309 

Stuyvesant  v.  Hall  343,  523,  530,  958, 

982,  1092,  1621 

V.  Hone        530,  583,  1624,  1631 

Sucklinge  v.  Coney  1088 

Suddereth  v.  Smyth  496 

Suffern  v.  Johnson  1351,  1663 

Suffield  Ecc'l  Soc.  v.  Loomis  1141 

Suffolk  F.  Ins.  Co.  v.  Bovden         397,  409, 

420,  421 

Sugden  v.  Beasley  1658 

Suhr  iJ.  Ellsworth  1512 

Suiter  t\  Turner  1413 

Suittcrlin  v.  Conn.  Mut.  L.  Ins.  Co.    1051  a 

Sullivan  i\  Jennings  1646  a 

Sullivan  v.  Toole  429,  435,  436 

Sullivan  Sav.  Inst.  v.  Copland  641 

V.  Young  461 

Summers  v.  Brice  460 

V.  Bromley  1439,  1440,  1445 

V.  Darne  318,  469,  470 

V.  Kanawha  713  ! 

V.  Kiljius  479 

V.  Boos  374 

Sumner  v.  Barnard  68,  735 

V.  Coleman  1402,  1406 

V.  Palmer  1334 

V.  Bhodes  488 

V.  Waui;h  838,  1621 

Sumrall  v.  Chaffin  1857 

Sum  wait  V.  Tucker  34 

Sunderland  v.  Sunderland  295 

Sussex  Co.  Mut.  Ins.  Co.  v.  "Woodruff 

397,  420 
Sutherland  v.  Lake  Superior  Ship  Ca- 
nal Co.  1535 
r.  Rose      989,1098,1099,1107 
V.  Tyner  1436 
Sutlive  V.  Jones  121 
Sutphen  v.  Cushman                  265,  267,  293 
V.  Ellis                                  795,  1388 
Sutton  V.  Aiken  113 
V.  Jervis                                              586 
V.  Mason  39 
V.  Bawlings                                     1924 
V.  Stone                                          1562 
V.  Sutton                                        1331 
Suydam  v.  Bartle                  1223,  1351,  1511 
Swaby  v.  Dickon                                       1535 
Swain  v.  Seamens                                       974 
V.  Stockton  Sav.  Soc.                     877 
Swaine  v.  Ferine                                         666 
Swan  V.  Emerson                                      1080 
V.  Mitchell      1051  h,  1521,  1531,  1532 
V.  Moore                                               466 
V.  Patterson                                       877 
V.  Stedman                                        121 
V.  Stephens                                       665 
V.  Vojiel                                    517,  518 
V.  Wiswall                                       1291 
V.  Yaple                    804,  808,  820,  924 
Swank  v.  Hufnagle                                  118  a 

906 


Swann  v.  Wright 
Swart  V.  Service 
Swarthout  v.  Curtis 
Swarts  I'.  Stees 
Swartz  V.  Leist 
Sweaney  v.  Mallory 
Sweeney  v.  Peaslee 
Sweet  V.  Jacocks 
V-  Mitchell 
V.  Parker 
V.  Southcote 
V.  Tinslar 
V.  Van  Wyck 
Sweetser  v.  Lowell 
Sweetzer's  Appeal 
Sweetzerr.  Atterbury 

V.  Jones 
Sweezy  v.  Chandler 
V.  Jones 
V.  Thayer 
Swegle  V.  Belle 
Swenson  v.  Halberg 


1588 

309 

957, 1467 

490 

822 

138a 

634 

464 

320,  323,  331,  1046 

250,  308 

557 

283 

827 

350,  703 

250,  266,  268,  332 

338 

433,  442, 446,  736 

1661 

478 

1331 

311  a,  322,  1095,  1114 

1061,  1852, 1857, 

1915 


V.  Moline  Plough  Co.  1378 

Sweny  v.  Peaslee  641,  643,  647 

Swepson  1-.  Bank  511,517 

Swetland  v.  Swetland  279,  301 

Swett  V.  Horn  889,  893 

V.  Sherman  1226 

V.Stark  834,1182,1377,1487 

Swift  V.  Alleghenv  Build.  Asso.  1355 

V.  Conboy   '  728,  1628 

V.  Edson  1057,  1396,  1402,  1404, 

1425, 1567 


V.  Kraemer 

V.  Lumber  Co. 

V.  Men  dell 

V.  Smith 

V.  Stebbins 
Swink  V.  Thompson 
Switzer  v.  Knapps 
Swope  v.  LeflSngwell 
Sword  V.  Low 
Syer  v.  Bundy 
Sykes  v.  Lafferry 
Svmns  V.  Noxon 
Syracuse  City  Bank  v.  Tallman 


927  a 

332 

1258,  1260,  1261 

814, 1051 

1383,  1398 

1334 

493 

948 

429,  431 

555 

610 

1600 

771, 

1516,  1.521 


Taaffe,  in  re 

Taber  v.  Cincinnati,  &c.  R.  R. 

V.  Hamlin 
Tabor  v.  Eox 
Tadlock  v.  Eccles 
Taft  V.  Boyd 
V.  Stetson 
V.  Stevens 
Tagg  V.  Tenn.  Nat.  Bank 
Taggart  v.  Ditch  &  M.  Co. 

V.  Wade 
Taintor  v.  Hemmingway 
V.  Keys 


Co 


1186 

1181 

924 

842 

1420 

926 

438,  1121 

700,  809 

560 

1324,  1591 

1607 

750 

293,  335 


TABLE   OF   CASES. 


References  are  to  Sections. 


Talbot  V.  Braddill  1040,  1153 

V.  Frere  1932 

Talbott  V.  Lancaster  1137 

Talburt  v.  Berkshire  L.  Ins.  Co.  763 

Talieferro  v.  Barnett  229 

V.  Gay  31,  667,  772,  1659 

Talley  v.  Eobinsou  1492 

Tallmadge  v.  Wallis  1502,  1.504 

Tallmau  v.  Ely        57,  715,  716,  1395,  1654, 

1678 

I'.  Truesdcll  lG06a 

Talmad<;e  v.  Wilgers  530 

Tangiiay  v.  Felthousen  748 

Tankard  v.  Tankard  586,  591 

Tanner  ;;.  Bell  473 

V.  Hicks  173,  229 

i;.  Taussig  1926^ 

Tanning  Co.  v.  Turner  643 

Tant  V.  Guess  331,  334,  339,  340,  341, 

1654 

Tantum  v.  Green  828 

Tapia  v.  Demartine  364,  365,  369,  372, 

373,  374,  375,  376 

Tappan  v.  Aylsworth  342 

V.  Evans  1511 

V.  Morseman  964 

Tapplv  V.  Sheather  264 

Tarbel  v.  Bradley  119,  120 

Tarbell  v.  Durant  878 

V.  Page  433,  439,  981,  1258 

V.  Parker  919 

V.  West  476,  523,  527,  541 

Tant  V.  Clayton  1821,  1830,  1871 

Tarver  v.  Ellison  463 

Tasker  v.  Small  1095 

Tassell  v.  Smith  1083 

Tate  V.  Evans  1811 

Tator  i;.  Adams  1688 

Tatum  V.  Holliday  1859 

V.  McLellan  1127 

Taylor  v.  Adams  664 

V.  Atl.  &c.  Kv.  Co.  357,  361 

r.  A.  &  M.  Asso.  812,1902 

V.  Baldwin  309 

V.  Barker  109 

V.  Bassett  1090 

V.  Bowles  834 

V.  Build.  &  L.  Asso.  638 

V.  Burlington,  &c.  Ry-  158 

V.  Chowning  "         1767,  1865 

V.  Cole  913,  986 

V.  Collins  429,  446,  684,  1541 

v.  Cornelius  281,  375,  383 

V.  Dickinson  1790 

V.  Eckford  219 

V.  Emerson  281 

V.  Farmers'  Bank  881,  883  a 

V.  Fowler  1693 

V.  Gilpin  1641 

V.  Harrison  504 

1-.  Hearn  1452,  1484 

V.  Heggie  878,  1884,  1885 

V.  Hopkins  1862 

j;.  Ilotchkiss  510,517 

V.  Kearn  1654 


Taylor  v.  Kelly 

557 

V.  King 

1771  a 

V.  La  Bar 

375 

V.  Luther 

285,  313,  322 

V.  McClaiu 

250 

V.  McLain 

288,  342  c 

V.  Maris       523,  530,  723,  1624,  1631 

V.  Maver  749 

V.  Miller  465 

V.  Mobclv  586 

V.  Page  '  616,  834,  835,  1487 

V.  Pearce  *  1338 

V.  Porter  664,  1063,  1292 

V.  Reid  1835,  1838 

V.  Rountree  1715 

V.  Short  982,  1631 

V.  Stearns  1770 

V.  Stibbert  573,  586,  589,  593 

V.  Thomas  361,  525 

V.  Townsend  673,  675 

V.  Watkins  433  a 

V.  Weld       242,  244,  300,  1244,  1257 

V.  Whitmore  752,  1500 

V.  Wing  608,  874  c,  1141 

Tavlor's  Heirs  v.  Elliott  1859 

Teaff  V.  Hewitt  429,  444 

V.  Ross  925 

Teal  V.  Hinchmau  936,  1334 

V.  Walker       244,  247  a,  667,  670,  719, 

771,  774,  775,  777,  778,  1120 

Tebb  V.  Hodge  437 

Tedford  v.  Wilson  486 

Teed  v.  Carruthers  935 

Tcetshorn  v.  Hull  1036 

Tefft  V.  Munson  476,  528,  679,  682 

Telford  v.  Garrels      634,  642,  652  a,  1606  a 

Temple  v.  Whitiier  871,  873 

Ten  Eick  v.  Simpson  593 

Ten  Eyck  v.  Casad  1118,  1118  a,  1395, 

1425 
711,  712,  714,  1636, 
1884 
385 
862 
928,  1045 
1668,  1670,  1674 


V.  Craig 

V.  Holmes 
Tenison  v.  Sweeney 
Tennery  v.  Nicholson 
Terbell  v.  Lee 


Ter-Hoven  r.  Kerns 

372 

Terhune  v.  Taylor 

647 

Terrell  v.  Allison 

1663 

V.  Andrew  Coun 

ty 

515 

Terrio  v.  Guidry 

889 

Territory  v.  Judge 

1444 

Terry  v.  Anderson 

1193 

V.  Eureka  College 

1179 

V.  Fitzgerald 

1816 

V.  George 

229 

V.  McClintock 

104 

V.  Roscll 

19, 1628 

V.  Tuttle 

624,  842 

V.  Woods 

822,  924 

Terwilliger  v.  Belcher 

874  r. 

Tessier  v.  Hall 

505 

Tetrault  i>.  Labbe 

1106, 

1108,  1108  a, 
1109 

Toulon  V.  Curtis 

1153,  1547  a 

907 


TABLE   OF   CASES. 


References  are  to  Sections. 


Texas  Land  Co.  v.  Blalock 
Texira  v.  Evans 
Thaclier  i'.  Churchill 
Thatcher  v.  Massey 

V.  Rockwell 
Thames  v.  Rembert 
Tharp  v.  Feltz 
Tharpe  v.  Dunlap 
Thaxton  v.  Roberts 
Thayer's  Appeal 


83  a,  596 

90 

110 

909  b 

750 

117,  461 

907,  1114 

229,  583 

244,  292,  342  c 

822 


Thayer  v.  Campbell       356,  804,  1345,  1369 

V.  Cramei'  50,  1202 

V.  Mann  110,  1204,  1215,  1296 

V.  Richards  391,  1121 

V.  Smith  1244 

V.  Stark  501 

V.  Star  Min.  Co.  651 

V.  Torrey  749 

Thebnud  v.  Hollister  848 

Thoisen  v.  Dayton  740,  864 

Theurer  y.  Nautre  435 

Theyken  v.  Howe  Machine  Co.  842 

Thibodaux  v.  Anderson  1769 

Tholen  v.  Duffy  634,  635,  1606,  1606  a 

Thomus's  Appeal  357,  943 

Thomas  v.  Allen  384,  769 

V.  Brown  1223,  1351 

V.  Da  vies  1531 

V.  Davis  375,  429 

V.  De  Baum  1665 

V.  Dunning  1386 

V.  Evans  1088 

V.  Hanson  468 

V.  Jones  1095,  1876,  1923 

V.  Kelsey  464,  1692 

V.  Mahone  1800 

V.  Marshfield  63 

V.  Mitchell  1494 

V.  Moravia  Machine  Co.  1621, 

1622 

V.  Olney  381 

V.  Parker  102 

V.  Reynolds  1004 

V.  Simmons  854,  870 

V.  Stewart  881,  885  a 

V.  Stone  556 

V.  Vanlieu  463,  467,  557 

V.  Voukapff  400,  403 

Thomasson  v.  Townsend  635,  1606 

Thomaston  Bank  v.  Stimpson  276,  298 

Thompson's  Appeal  1355 

Thompson  ?;.  Bauks  275,  299,  328 

V.  Berry  634 

V.  Bertram       741,  748,  752,  758 

V.  Bowyer  1162 

V.  Boyd  870 

V.  Campbell  1060 

V.  Cartwright  566 

V.  Chandler         869,  1057,  1082, 

1395 

V.  Chicago,  &c.  Ry.  Co.       681  a 

V.  Commissioners         1829,  1843 

V.  Crocker  1574 

V.  Davenport  318 

V.  Davies  1677 

908 


Thompson  v.  Davis 

V.  Dearborn 
V.  Ela 

V.  Ellsworth 
V.  Field 
V.  Flatbers 
V.  George 
V.  Heffner 
V.  Heywood 


1334,  1719 

752,  758,  762 

1242 

1496 

1699,  1703 

776 

947 

224 

684,  865,  18.35, 


1873,  1906, 1910,  1921 

V.  Hickey  -669 

V.  Holladay  131 

V.  Humboldt  Trust  Co.  611 

V.  Jones     731,  1574,  1575,  1584, 

1587 

V.  Kenyon  808,  1109,  1257, 

1259,  1260,  1266 

V.  Lambert  124 

V.  Layman  918 

V.  Lee  1046 

V.  Lyman  468,  533 

V.  Mack  515 

V.  Marshall  47,  62,  1354 

V.  Morgan  494,  744 

V.  Mount  1670,  1676 

i'.  Parker  1229 

V.  Pickel  1141 

V.  Pioche  548,  553,  586,  587, 

588,  589 

V.  Railroad  Co.  152 

V.  Schmieder  1645 

V.  Scott  116 

V.  Smith  1411,  1663 

V.  Thompson  751,  761  a 

V.  Van  Vechten  644 

V.  Vinton  1258,  1262 

V.  Woodbridge  647 

Thomson  v.  Betteus  1713 

V.  Smitlf  237 

V.  Wilcox  524 

Thorn  v.  Darlington  1423 

Thornborough  v.  Baker  262,  275 

Thoriiburg  v.  Jones  1836 

Thorndike  v.  Norris  807 

Thorne  v.  Newby  1432 

V.  Thorne  1061 

Thorneycroft  v.  Crockett  1102,  1140 

Thornhill  v.  Burthe  66 

V.  Evans  650 

Thornlcy  v.  Moore  1051 

Thornton  v.  Bank    113,  134,387,  893,  1516 

V.  Boyden  1874 

V.  Enterprise  Ins.  Co.      412 

V.  Irwin    924,  974,  1876,  1877 

V.  Pigg    936,  1218,  1229,  1420, 

1422,  1424 

Thorp  V.  Keokuk  Coal  Co.      741,  755,  758, 

759,  760,  762 

V.  Merrill  489,  508 

Thorpe  v.  Durbou  219 

V.  Holdsworth  604 

V.  Ricks  1099 

V.  Thorpe  627 

Thorwarth  v.  Armstrong  1850 

Thrall  v.  Spencer  387 


TABLE   OF   CASES. 


References  are  to  Sections. 


Thmlgill  V.  Pintard  173 

Threlkelds  v.  Campbell  1647 

Throckmoitou  v.  Price  504,  517,  518,  519 

Thunder  ;;.  Belcher  776 

Thurber  v.  Slimmel  943 

Thurlow  V.  Mackeson  1871 

Thurman  v.  Cameron  499,  500 

V.  Stoddard  460 

Thurston  v.  Miller  1838 

V.  Minke  706 

V.  Prentiss  1188,  1886 

Tibbetts  v.  Home  445 

V.  Langley  Manuf.  Co.  473, 

1693 

V.  Moore  431,  466 

Tibbs  V.  Morris  266,  340,  1147 

Tibeau  v.  Tibeau  304,  324 

Tice  V.  Annin  525,  876,  1229,  1380 

V.  Kussell  1051 

Ticheuor  v.  Dodd  738,  749,  751 

V.  Yankey  97 

Tichont  v.  Harmon  877 

Tickner  v.  Wiswall  627 

Ticknor  v.  Leavens  1618 

Tiedemann  v.  Ackerman  642 

Tiernan  v.  Hinman  1078,  1181 

Tierney  v.  Spira  1345 

Tift  t;.  Mayo  112 

Tifft  V.  Horton  431,  439 

V.  Walker  307 

Tilden  v.  Blair  657 

V.  Greenwood  244,  670,  771,  779 

V.  Streeter  301,  335 

Tilford  V.  James  385,  1187 

Tillar  v.  Cleveland  639 

Tillery  v.  Wrenn  1813 

Tillin;,-hast  v.  Champlin  547,  568,  569 

Tillman  v.  De  Lacy  429,  436,  444,  446 

V.  Jackson  1857 

Tillotson  V.  Boyd  748 

Tillou  I'.  Kingston  Mut.  Ins.  Co.              397 

Tillson  V.  Moulton     248,  250,  277,  282,  293 

Tilton  11.  Cofield  583 

V.  Hunter  523 

Timms  V.  Shannon  11 

Tinkom  v.  Purdy  1634,  1873 

Tipton  V.  Wortham  1876 

Tisdale  v.  Maxwell  265 

Tisher  v.  Beckwith  84,  616 

Tison  V.  Association  843 

Titley  v.  Wolstenholme  1787 

Tittemore  v.  Vt.  Ins.  Co.  423,  426 

Titus  V.  Glens  Falls  Ins.  Co.  397,  399, 

413  a,  424  a 

V.  Haynes  787 

V.  Mabee  452 

V.  Neiison  666,  1693 

Toby  V.  Ilced  664,  697 

Todd  V.  Campbell  268,  312,  326,  335 

V.  Creamer  822,  1427,  1701  a 

V.  Davey  238,  1051  c,  1619 

i;.  Johnson  68 

y.  Lee  112 

V.  Outlaw  368,  488,  49.5,  539,  584 

V.  Weber  758 


Toft  ?;.  Stephenson  1198 

Toler  V.  Passmore  1231 

V.  Pender  326 

Toliver  v.  Morgan  1636 

Toll  V.  Davenport  99 

V.  Hiller  905,  1665,  1669 

Toller  V.  Carteret  1444 

Tolman  v.  Smith  471,  870,  874  c,  1404, 

1445,  1720 

Tome  V.  Loan  Co.  1439 

Tomlinson  v.  Greenfield  150 

V.  Monmouth  Ins.  Co.    253,  423 

V.  Thompson  687 

Tompkins  v.  Drennen    1864, 1923  a,  1923  b, 

1940 

V.  Halstead  1887 

V.  Henderson  548 

V.  Seelv  1087 

I'.  Tom'pkins  1190,1513 

Tompkins  v.  Wiltberger      1590, 1620,  1621 

Tompson  v.  Tappan  1257,  1269 

Toms  V.  Boyes  679,  1594 

Tong  V.  Eifort  1423 

Tongue  v.  Morton  583 

Tonkin  v.  Baum  1225 

Tooke  V.  Newman  643,  1S08,  1816, 

1838,  1852 
Tooker  v.  Sloan  1 13,  500,  964  a 

Tooley  v.  Kane  1646  a 

Toomer  v.  Kandolph  18,1114,1115 

Toomes  v.  Conset  1042 

Tootte  V.  Maben  917 

Topi  is  v.  Baker  1194,1215 

Tormey  v.  Gerhart  1709  a 

Torrans  v.  Hicks  1587,  1637 

Torrent  v.  Hamilton  1458 

Torrey  v.  Bank  743,  747  a,  1625 

V.  Cook  706,  936,  1215,  1897 

V.  Deavitt  787,  819,  820,  962 

Torry  v.  Black  613 

V.  Fitzgerald  1859 

Totteu  r.  Stuyvesant  1411,1579 

Toulmin  I'.  Steere  1887 

Tousley  v.  Tousley  352,  354,  465,  490, 

504,  517 
Tower  v.  Divine  870 

V.  Fetz  305,  324 

V.  White  1457 

Towle  V.  Hoit  878 

V.  Rowe  1377  a 

Town  V.  Griffith  508 

i;.  Washburn  1210 

V.  Wood  770 

Town  of  Clinton  i;.  Westbrook  22 

Townc  V.  Fiske  433  a 

V.  Fitchburg  F.  Ins.  Co.  399 

Towner  v.  McClelland  817 

V.  Wells  537 

Townsend,  re  1022 

Townsend  v.  Corning  652 

V.  Empire  Stone  Dress- 
ing Co.  357,  374,  381 
V.  Jeniison  1204 
V.  Litlle                              571,  591 
V.  Long  762 

909 


TABLE   OF   CASES. 


References  are  to  Sections. 


Townsend  v.  Peterson  335 

V.  Riley  655,  657,  659  a,  660 

V.  Threshing  Mach.  Co.        1080, 

1134 

V.  Todd  367 

V.  Ward  751 

V.  Wilson  1787,  1790 

Townsend  Sav.  Bank  v.  Epping    1404,  1423 

V.  Munsou  678  a 

Townshend  v.  Stangroom  321 

Trabue  v.  Ingles  1663 

Tracey  v.  Lawrence  1823 

Tracy  v.  Jeuks  508,  517,  G23 

Traders'  Ins.  Co.  v.  Race  413 

Traders'  Nat.  Bank  v.  Manuf.  Co.  539, 

641,  865 
Tradesmen's  Build.  Asso.  v.  Thomp- 
son 479,877,885  6,957 
Tranum  v.  Wilkinson  490 
Traphagen  v.  Irwin  523 
Trapier  v.  Waldo  1414,  1639 
Trapnall  v.  State  Bank  701 
Trappes  i'.  Harter  430,  441 
Trash  y.  White  1149 
Travellers'  Ins.  Co.  v.  Brouse  1531  a 
V.  Patten  1406 
Traylor  v.  Townsend  544,  548,  552 
Trayser  i>.  University         1174,  1190,  1513, 

1580 

Treadwell  v.  Moore  907 

Treat  v.  Pierce  702,  718,  1249,  1307 

V.  Strickland  241 

Trecothick  v.  Austin  960,  1389 

Tredway  v.  McDonald  583 

Trefts  V.  King  547 

Treiljer  v.  Shaffer  1577 

Trenholm  v.  Wilson     666,  1067,  1584, 1663 

Trent  v.  Hunt  771,  774,  776 

Trentman  v.  Eldridge  557,  558,  1629 

Trenton  Banking  Co.  v.  Woodruff         966, 

967,  1523,  1525 

Trezise  v.  Lacy  591 

Tribble  V.  Poore  113 

Trieber  v.  Andrews  287 

Triebert  v.  Burgess  1471 

Trilling  v.  Schumitsch  1637 

Trimble  v.  McCorraick  258,  275,  907 

Trimm  v.  Marsh  13,  44,  712,  715,  1229 

Trimmier  v.  Vise  849,  870,  871,  951 

Tripe  v.  Marcy  42,  523,  1211  a,  1241 

Triplett  v.  Parmlee  951 

V.  Sayre  1454,  1462 

Tripp  I'.  Cook  1670,  1671,  1673 

V.  Ida  1894 

V.  Vincent  710,  741,  983 

Tritch  V.  Norton  609 

Trogden  v.  Winona,  &c.  R.  R.  Co.        681  a 

Troll  V.  Carter  319 

Troost  V.  Davis  1128 

Trope  V.  Kerns  1587,  1667 

Troth  V.  Hunt  1439 

Trotter  v.  Erwin  1204,  1209 

V.  Hughes  741,  748,  752,  755, 

760,  761a,  762,  1713 

V.  White  1681 

910 


Troughton  v.  Binkes 

1099 

Troup  V.  Haight 

499,  1496 

Trow  V.  Berry 

1265,  1269 

Trowbridge  v.  Harleston 

1629 

Troxell  v.  Silverthorn 

874,  877 

Troy  V.  Smith    ' 

627 

Troy  City  Bank  v.  Bowman 

1466 

V.  Wilcox 

558 

Truax  v.  White 

959 

Trucks  V.  Lindsey 

262 

279,  295,  329 

True  V.  Haley 

1056 

1  Truesdale  v.  Ford 

586 

Truitt  V.  Truitt 

583 

Trull  V.  Bigelow 

557 

V.  Eastman 

867 

V.  Fuller 

447 

V.  Skinner 

252,  557,  1046 

Trullinger  v.  Kofoed 

487 

Trulock  V.  Robey 

11 

22,  1164,  1171 

'  Truman  v.  Lore 

497 

r.  McCollum 

84,  501 

r.  Truman 

271,  848 

Truscott  V.  King 

343, 

365,  368,  372, 
375,  5.30 

Trusdell  v.  Dowden 

744,  745 

V.  Jones 

647,  648 

Trust  Co.  I".  Shaw 

956  a 

Trustees  v.  Connolly 

121 

5,  1287,  1289, 
1293,  1294 

V.  Greenough 

1603 

r.  Snell 

1612 

V.  Trenton 

714 

V.  Wheeler 

475, 

586,589,  601, 

791, 

833 

843,  844,  982 

Tryon  v.  Munson 

48, 

355,  474,  1355 

f.  Sutton 

65,  1462 

Tubb  V.  Fort 

774 

Tuck  V.  Calvert 

219,  1597 

V.  Hartford  F.  Ins 

Co. 

397 

Tucker  v.  Alger 

355, 

927,  931,  935 

V.  Buffum 

1133 

V.  Constable 

546 

V.  Conwell 

1333 

i:  Crowley 

865 

V.  Fenno 

133,  1252,  1892 

V.  Field 

65 

V.  Henzill 

565 

V.  Jackson 

1668 

V.  Keeler 

672 

V.  McDonald 

1217,  12.30 

V.  Tilton 

560,  563 

V.  Tucker 

393 

V.  Wells 

83  a,  1204 

V.  West 

623 

V.  White 

1052 

Tuder  v.  Morris 

1397 

Tufts  V-  Maines 

1273 

V.  Taplev 

253,  514 

I*.  Tufts " 

556 

Tuite  V.  Stevens 

736 

Tulane  v.  Clifton 

917 

Tull  V.  Owen 

330 

Tully  V.  Harloe 

374, 627 

Tunno  ik  Robert 

357 

Turk  V.  Funk 

471 

TABLE   OF   CASES. 


References  are  to  Sections. 


Turk  1-.  Ridge  677 

Turman  v.  Bell         339,  341,  514,  517,  586, 

597,  598,  1395 

V.  Forrester  909  b 

Turnbull  v.  Tliomas  345 

Turner  v.  Biibb  583 

V.  Bouchell  1767 

i;.  Flinn  1629 

V.  Hart  97 

V.  Johnson  1111,  1123,  1132, 

1549,  1767 

V.  Kerr  266,  267,  268,  279 

V.  Lassiter  237 

y.  Littlefield  338,711 

V.  McFee  460 

V.  Mebane  453 

V.  Quiney  F.  Ins.  Co.  406,  408 

V.  Turner  1107 

V.  Watkins  19,  62,  665,  1769 

V.  Wentworth  429,  433  « 

V.  Wilkinson        265,  279,  286,  325, 

329,  335;  339 

V.  Williams  1095 

Turnipseed  v.  Cunningham  279 

Turpie  v.  Lowe  251,  273,  275,  281,  294, 

329,  340,  378 

Turpin  v.  Ogle  479 

Tuthill  V.  Lupton  1921 

V.  Morris  892,  893,  899,  988  a 

V.  Tracy         1751,  1893,  1894,  1904 

Tutten  V.  Stuyvesant  1579 

Tuttle  V.  Armstead  750,  768 

V.  Brown  848,  1282 

V.  Churchman  597 

V.  Dewey  1070 

V.  Jackson  586,  591 

V.  Turner  84 

Tutwiler  v.  Dunlap  1406 

Twining  v.  Neil  1646  a,  1670 

Twin-Lick  Oil  Co.  v.  Marbury  1636 

Twitchell  v.  McMurtrie  500,  787 

y.  Hears  751,758,762,834, 

842 

Twogood  V.  Stephens  731,  981 

Twombly  v.  Cassidy  878,  1087 

Twopenny  v.  Young  862 

Tydings  v.  Pitcher  574,  576 

Tyer  v.  Milling  Co.  1614,  1639 

Tylee  v.  Webb  1397 

V.  Yates  651,  932 

Tyler  v.  Herring  1782,  1862,  1895 

V.  Lake  1867 

V.  Mass.  Ins.  Co.  646,  1841,  1889 

V.  Thomas  583 

Tyrrell  v.  Ward  878 

Tyrwhitt  v.  Tyrwhitt  857 

Tyson  v.  Applegate  1383 

V.  Eyrick  1506  a 

v.  Post  431a,  436  a 


Uhler  V.  Semple 
Ullman  v.  Jasper 
Ulrich  V.  Drischell 
Ulster  Co.  Sav.  Inst.  v.  Leake 
Umbenhower  v.  Miller 
Unifreville  v.  Keeler 
Underbill  v.  Atwater 
Underwood  v.  Nat.  Bank 
Unger  v.  Leiter 
V.  Smith 
Union  Bank  v.  Bell 


U. 


Ufford  V.  Wells 
Uhlcr  V.  Hutchinson 


220 
464,  46.5,  466 


465 

316 

1587 

413 

248,  312 

241 

362,  1592 

874  11 

1693 

752,  761  a 

644,  1397,  1420, 

1441,  1493 

V.  Emerson  435 

V.  Stafford  1204 

Union  Cent.  L.  Ins.  Co.  v.  Bonnell        1190 

V.  Curtis  1174 

V.  Jones  1174 

u.  Scheidler      1215 

Union  College  v.  Wheeler       482,  593,  723, 

791,  792,  834,  842,  844, 

844  a,  982 

Union  Co.  v.  Sprague  62,  630  a 

Union  Dime  Sav.  Inst.  v.  Clark  644 

V.  Duryea  460 

Union  Ins.  Co.  v.  Van  Rensselaer        1611, 

1688 

Union  Inst.  v.  Boston  1141 

Union  Mut.  L.  Ins.  Co.  v.  Hanford        742, 

755,  758,  761  a,  761  c,  762 

Union  Mutual  Life  Ins.  Co.  v.  Kirchoff 

10.53,  1076 
V.  Lovitt  40,  783 
V.  Plaster  Co. 

1185 

V.  Slee       265,  332, 

708,  808,  811, 

817 

0.  White  293, 

1053,  1055 

Union  Nat.  Bank  v.  International 

Bank  644 

V.  Pinner  1504,  1698 

Union  Safe  Dep.  &  T.  Co.  v.  Tele- 
graph Co.  436  a 
Union  Trust  Co.  v.  St.  Louis,  &c.  R. 

R.  Co.  1520 

Union  Water  Co.  v.  Murphy's  Flat 

Fluming  Co.  147,  1509,  1579 

United  N.  J.  R.  &  C.  Co.  v.  Long 

Dock  Co.  706 

United  Sec.  L.  Ins.  Co.  v.  Vande- 

grift  1414 

United  States  v.  Athens  Armorj'  26 

V.  Crookshank  927  a 

V.  Griswold  465 

V.  Hooo  365,  367,  377 

V.  January  906 

V.  N.  O.  Railroad       158,431 

V.  Sliney  589 

V.  Sturges  367,  384,  827 

United  States  Ins.  Co.  v.  Shriver  476 

United  States  L.  Ins.  Co.  v.  Poillon      1222, 

1223,  1351 

United  States  Mortg.  Co.  v.  Gross       134  a, 

574,  681  a,  838 

911 


TABLE   OF   CASES. 


References  are  to  Sections. 


United  States  Mortg.  Co.  v.  Hill  761  a,  769 

V.  S  perry     102  b, 

103,  653,  657 

United  States  T.  Co.  v.  Roche  102 

W.Stanton  1198 

Updegraft  v.  Edwards  817,  834 

Updike  V.  Elevator  Co.  1745 

Upham  V.  Brail  ley  706 

Upperton  v.  Hjirrison  1708 

Upton  V.  Archer  90,  91 

V.  Craig  630 

V.  Nat.  Bank  357,  1079 

Urquhart  v.  Brayton  749,  752,  762 

Usborne  v.  Usburne  684 

Usher  v.  Livermore  269 

Usina  v.  Wilder  65,  611,  682,  1483 

Utlev  V.  Smith  344,  380 

Utz  'v.  Utz  1378 


Vaccaro  v.  Asher 
Vail  V.  Arkell 
V.  Drexel 
V.  Foster 


659 
1586 

236 
1713 


Vanderhaise  v.  Hugues         250,  1060,  1128, 

1140 

Vanderkemp  v.  Shelton  479,  525,  736, 

848,  1395, 1396,  1425, 

1439,  1580,  1651,  1720 

431,  444 

453,  455,  684 

1425,  1479 

630,  984 

1592 

1177 


Vanderpoel  v.  Van  Allen 

Vanderslice  v.  Knapp 

Vanderveer  v.  Holcomb 

Van  Deusen  v.  Friuk 

Van  Deventer  v.  Stiger 

Van  Doren  v.  Dickerson 

Van  Duesen  v.  Charter  Oak  Ins.  Co.      422 


V.  Jacobs  1862,  1873,  1895,  1909,  1915 
V.  Weaver  436,  438 

Valentine  v.  Belden  1636 

V.  Fish  644 

V.  Havener  1395 

V.  Piper  1889 

V.  Teller  1663 

V.  Van  Wagner  76 

V.  Wheeler  769 

Valle  V.  Am.  Iron  Mountain  Co.  10 

Vailcjo  Land  Asso.  v.  Viera  1654 

Vallette  v.  Bennett  27 

Valpey  v.  Rea  103 

Van  Aken  v.  Gleason  534,  535 

Van  Amburgh  v.  Kramer  1483 

Van  Arman  v.  Byington  413 

Van  Arsdalen  v.  Vail  1670 

Vanarsdall  v.  Watson  124,  134 

Vanatta  v.  N.  J.  Mut.  L.  Ins.  Co.  1498 

Van  Aiiken  v.  Dunning  663 

Van  Benschooten  v.  Lawson  650 

Van  Bergen  V.  Demarest  1813,1818 

Van  Bernuth  v.  Sutton  864 

Van  Beuren  v.  Van  Gaasbeck  1141 

Van  Bokkelen  v.  Taylor  976 

Van  Brunt  v.  Mismer  678 

Van  Buren  v.  Olmstead  309,  337,  896, 

1069,  nil,  1122,  1123, 
1124,  1602 
V.  St.  Joseph  Co.  Village 

F.  Ins.  Co.     399,408,413  a 

Vanbussum  v.  Maloney  1641,  1672 

Vance  v.  Johnson  51 

V.  Lincoln  281,  288 

Vandegraaf  v.  Medlock  401 

Vandegrift  v.  Herbert  308,  337 

Vandercook  v.  Baker         504,  528,  561,  814 

V.  Cohoes  Sav.  Inst.  792, 

1087,  1576,  1668 

912 


Van  Dusen  v.  Worrell 
Van  Duyne  v.  Shann 

V.  Vreeland 
Van  Dyke  r.  Van  Dyke 
Van  Dyne  v.  Thayre 

Vane  v.  Rigden 
Van  Epps  v.  Van  Epps 
Van  Etta  v.  Evanson 
Vanjiilder  ;;.  Hoff'inan 
Van  Heusen  v.  Radcliff 
Van  Ilook  v.  Throckmorton 
Van  Hoozer  i\  Corey 
Van  Horn  v.  Bell 

V.  Duckworth 

V-  Keen  an 
Van  Houten  v.  McCarty 
Van  Husan  r.  Kanouse 
Van  Keuren  v.  Cent.  Ry.  Co. 

V.  Corkins 
Van  Lew  ?;.  Parr 
Van  Loan  v.  Squires 
Van  Marter  v.  McMillan 
Van  Meter  v.  Darrah 

V.  Hamilton 
V.  Knight 
Vanmeter  v.  JNIcFaddin 

V.  Vanmeter 
Van  Nest  v.  Latson 
Vannice  v.  Bergen 
Vanorden  v.  Johnson 


Van  Pelt  v.  McGraw 
Van  Rensselaer  v.  Akin 

V.  Bull 

V.  Dennison 

V.  Stafford 

V.  Wright 
Van  Riper  v.  Williams 
Van  Riswick  v.  Goodhue 
Vansant  v.  Allmon       27,  72,  817,  936,  9.50, 
1218,  1220,  1511,  1567,  1699,  1789 


309,  341 
971,  1075,  1118 
546 
1670 
14,  666,  715,  1093, 
1205 
1766 
1884 
90 
266,  319,  328,  329 
460 
1663,  1664 
150 
91 
1395 
103 
1502 
893 
586,  597 
479,481,  791,  964 
1502 
1427 
1606  a 
1745,  1793 
1805 
510,  1743 
185 
345, 755 
1402,  1407 
966,  967 
523,  530,  722,  723, 
982,1631 
454,  689,  696 
934 
1646 
140 
170f 
1608 
1504, 1698 
492 


Van  Schaack  v.  Saunders 
Van  Schaick  v.  Edwards 
Vanscoyoc  v.  Kimler 
Van  Sickle  v.  Palmer 
Van  Sickles  v.  Town 
Van  Slyck  v.  Skinner 
Van  Slyke  i;.  Sheldcn 

V.  Van  Loan 
Van  Story  v.  Thornton 
Van  Syckle  v.  O'Heran 
V.  Olteran 


1751,  1822 

661 

1646 

631,  645 

626 

120,  574 

1751, 1822 

1621 

463 

1191 

1190 


1190, 


TABLE   OF   CASES. 


References  are  to  Sections. 


Van  Thorniley  v.  Peters 


Van  Vechten  v.  Terry 
Van  Vronker  v.  Eastman    106 
Van  Wagenen  v.  Brown 
V.  Hopper 
Van  Waggoner  v.  McEwen 
Van  ^yagner  v.  Van  Wagner 
Van  Wii)kle  v.  Earl 

V.  Williams 
Van  Wyck  v.  AUiger 
V.  Walters 


99,  457,  465, 

488,  495 

1398 

7,  1139,  1172 

848 

554 

1500,  1502 

265,  357 

744 

874  a 

684,  693 

642 


Varden  Seth  Sam  r.  Luckpatliy  Roy- 

jee  Lallah 
Varick  v.  Briggs 
V.  Crane 
Varnum  v.  Abbot 
I'.  Meserve 


Vartie  v.  Underwood 
Vason  V.  Ball 
Vassear  v.  Livingston 
Vasser  v.  Vasser 
Vattier  v.  Hinde 
Vaugh  V.  Lytle 

V.  Wetherell 
Vaughan  v.  Dowden 
V.  Marable 
V.  Powell 
Vaughn  v.  Nims 

V.  Tracy 
Vaupcll  I'.  Woodward 
Vawter  v.  Crafts 
Veach  v.  Schaup 
Vechte  v.  Brownell 
Veeder  v.  Fonda 
Venn  urn  v.  Babcock 
Ventress  r.  Creditors 
Verdier  v.  Bigne 
Verdin  v.  Slocum 
Verdine  v.  Olney 
Verges  v.  Giboney 
Vermilya  v.  Beatty 
Vermont  Sav.  Bank  v.  Elliott 
Verner  v.  Betz 

V.  McGhee 
Vernon  v.  Bethell 

V.  Smith 

V.  Vawdry 
Very  v.  Russell 

V.  Watkins 
Vesey  v.  Ockington 
Vest  V.  Michie 
Vick  V.  Smith 
Vickers  v.  Cowell 
Vickery  v.  Dickson 
Viele  V.  Judson 


184 
482,  527,  557,  559 
660 
1292 
1695,  1792,  1925, 
1931 
114 
26,  433  a 
1496 
246,  250,  303 
554,  710 
1646 
671 
1067 
1773,  1804 
1782 
1590,  1591,  1597,  1618 
544,  586 
894 
79,  981 
1395,  1425,  1429 
1806, 1819 
1612.  1645:  1646a 
1046 
1701a 
1354 
1648 
964  a 
901,  991 
960 
1693 
43,  144,  453 
630  a 
1042 
400 
1143 
1749,1767,  1876,  1897  c 
1215 
643 
544,  547,  548,  554 
906,  924 
1382 


634,  641 

480,  481,  484,  844  a,  967, 

987 

Vigoureux  f.  Murphy  1616 


Vilas  V.  McBride 
Villa  V.  Rodriguez 
Vincent  v.  Berry 
V.  Moore 
V.  Walker 
Vint  V.  Padget 

VOL.    II. 


634,  645,  7.50 

251,  711 

824 

1080 

117,  265,  279,  324,  329 

1083 

58 


Vinton  v.  King  110,  610,  1296,  1297 

Virgin  v.  Brubaker  473 

Virginia  v.  Ches.  &  O.  Canal  Co.      74,  877, 

1141 

118 

1606 

90 

244 

384 

1622 

1189 

113 

94 

349 

1321 

1207,  1225 

429,431,  44.5,446 


Viser  v.  Scruggs 

Vitrified  Paving  Co.  v.  Iron  Works 
Vliet  V.  Camp 
V.  Young 
Vogan  V.  Caminetti 
Vogel  V.  Brown 

r.  Harris 

V.  Leichner 

V.  Ripper 
Volmer  v.  Stagerman 
Von  Baumbach  v.  Bade 
Von  Campe  v.  Chicago 
Voorhees  v.  McGinnis 


Voorhies  v.  Frisbic  1232 

Voorhis  v.  Freeman  451 

V.  Westervelt  464 

Vosburgh  v.  Lay  1606 

Vose  V.  Handy        787,  813,  817,  1298,  1308 
Voss  V.  EUer     248,  258,  261,  265,  267,  269, 

277,  294 
Vredenburgh  v.  Burnet  534,  538,  579, 

842,  843 

464 

1694 

1402,1414 

614 

748 

nil,  1568,  1602, 

1654,  1921 

960 

116,  7.53,  758,  760 


Vreeland 


Vroom  I', 


V.  Claflin 
V.  Jacobus 
V.  Loubat 
V.  Schoonmaker 
V.  Van  Blarcom 
Ditmas      1084, 


V.  Van  Home 
Vroom  an  v.  Turner 


W. 

Wabash,  St.  L.  &  P.  Ry. 

tral  Trust  Co. 
Wacker  v.  Straub 
Waddell  v.  Carlock 

V.  Hewitt 
Wade's  Case 
Wade  V.  Beldmeir 
V.  Coopc 
V.  Harper 
V.  Hennessy 
r.  Howard'    856,  86 
V.  Miller 
Wadsworth  v.  Blake 

V.  Loranger 
V.  Lyon 
V.  Williams 
Wagar  v.  Stone 
Wa<,'ener  v.  Swygert 
Wager  i'.  Hall 
V.  Link 
Wahl  V.  Phillips 
Wailes  v.  Cooper 
Wainscott  v.  Silvers 
Wain  Wright  v.  Flanders 
Wait  V.  Baldwin 
i".  Savage 

913 


Co.  V.  Cen- 

1439 

13.55 

233 

1711 

6,  1088 

858 

1068 

1898 

681  a 

1,  889,  984,  1298 

43,  1539,  1665 

874  d 

301 

7.36 

858,  864 

36,  1522 

1444 

629 

760 

936,1218 

546,  574 

1577 

99 

574 

466,  66G 


TABLE   OF   CASES. 


References  are  to  Sections. 


Wait  V.  Smith 

Waite  V.  Ballou 

V.  Dennison 
V.  Dimick 

Wake  V.  Hart 

Wakefield  v.  Day 

V.  Johnson 

Wakeman  r.  Banks 
V.  Grover 

Walcop  V.  McKinney 

Walcutt  V.  Spencer 

Walden  v.  Brown 
V.  Speigner 

Waldo  V.  Rice 

V.  Richmond 
V.  Williams 

Waldrip  v.  Black 

Waldron  v.  Letson 

Wales  i).  Mellen 

V.  Sherwood 

Walkenhorst  v.  Lewis 

Walker  v.  Abt 
V.  Bank 
V.  Baxter 
c.  Carleton 
V.  Cockey 
V.  Conant 
V.  Covar 
V.  Dement 
V.  Douglas 
V.  Ebert 


489 

634,  1813 

1876 

278 

1673 

282 

237 

667 

1439 

39,  702 

1276,  1285,  1296, 

1305 

1088 

1069,  1322 

1152,  1156 

966  a 

1618 

1380 

1655 

80,  668,  1289 

741,  752 

218,229 

1687 

335,  1373,  1426 

729,  848,  870,  871 

345,378,  1906,  1922 

1808 

971  a 

1628 

606,  822,  838 

583 

616 


V.  Farmers'  Bank 

V.  Goldsmith 
V.  Hallett 
V.  Harris 
V.  Hill 
V.  Jarvis 
V.  Johnson 
V.  Kee 
V.  King 
V.  McConnico 
V.  McCusker 
V.  McDonald 
V.  Mebane 


24.  290,  329, 

335,  340,  711 

748,  942 

1591,  1618,  1619 

1106 

1658 

1439,  1577,  1586 

52 

817 

54,  869,  877 

349 

1659 

258 

944 


V.  Oxford  Manuf.  Co.  671 

V.  Paine  349,  381 

V.  Schreiber  560,  817,  820,  821, 

822,  1699 
17.  Schum  1653,  1673 

r.  Sellers  1609 

V.  Sherman  447 

V.  Smalwood  1373 

V.  Snediker  374,  375,  377,  947 

V.  Stone  848 

V.  Summers  676 

V.  Teal  667,  1778 

V.  Thayer  720,  1256,  1257 

V.  Tiffin  Mining  Co.  244,  246 

V.  Tracey  1355 

V.  Villavoso  1338 

W.Walker  314,321,322,352  a, 

357 
v.  Whitehead  1145 

914 


Walljer  f.  Wilson  1503 

Wall  V.  Ambler  1335,  1449 

V.  Bissell  958,  959 

V.  Nay  1345 

Wall  St.  F.  Ins.  Co.  v.  Loud        1527,  1533 

Wallace  v.  Berry  316,  335 

V.  Blair  848 

r.  Campbell  467 

V.  Dunning  1488 

r.  Ferly  1351 

V.  Field  1720 

V.  Furber  65,  489 

V.  Glaser  655 

V.  Goodall  802,  808 

V.  Harrastad  90 

V.  Hussey  1513 

V.  Johnstone  247  a,  260 

V.  Mahaffey  464 

V.  Smith  267,  312 

y.  Stevens  1091,1112 

Wallenr.  Huff  1148 

Waller  v.  Arnold  1829,  1848,  1906 

V.  Harris    -  1107,  1425 

V.  Oglesby  802,  883 

?;.  Tate  1229 

Walling  7-.  Aiken  1083 

Wallis  V.  Long  974 

V.  Rhea  538 

Walls  V.  Baird  983 

V.  Endel  291 

Walmsley  v.  Milne  441,  444,  448 

Walrath  v.  Campbell  126 

Walsh  V.  Barton  157 

V.  Brennan  271 

V.  Maconiber  1897 

V.  Phila.  F.  Asso.  398 

r.  Rutgers  F.  Ins.  Co.        1123,1395 

1681 

V.  Schoen  1411 

V.  Truesdell  1397 

V.  Wilson  714 

V.  Young  105 

Walter  v.  Klock  332 

V.  Lind  641 

V.  Wala  1387 

Waltermire  v.  Westover  1203,  1204 

Walters  v.  Defenbaugh  •                   665 

V.  Farmers'  Bank  1711 

V.  Walters         355,  468,  924,  927  a, 

1202 

Walthall  V.  Rives  672,  711,  712,  1876 

Walton  V.  Bagley  1075,  1080 

V.  Cody  60,  1443,  1459 

V.  Copper  Co.  1351 

V.  Cronly  785 

V.  Hargroves  465 

V.  Withington  1114 

Walton  Plow  Co.  v.  Campbell  94 

Walworth  v.  Farmers'  L.  &  T.  Co.         1617 

Wandle  v.  Turney      '  1098 

Wanmaker  v.  Van  Buskirk  915,  1196 

Wannell  v.  Kem  500 

Wanzer  v.  Gary  842,  889 

Waples  V.  Jones  650,  654,  1179a 

Warburton  v.  Mattox  528 


TABLE   OF   CASES. 


References  are  to  Sections. 


Warbuvton  v.  Laiiman 

489 

Ward  V.  Billups 
V.  Carey 
V.  Carttar 

1801 

471 

1198 

V.  Comegys 
V.  Cooke 

1496 
364,  372 

V.  Gunn 

1282,  129.5 

V.  Hague 

523,  5.30,  562 

V.  Han  Bokkelen 

1426 

V.  Ins.  Co. 

113,  734,  1484 

17.  James 

1634 

V.  Kilpatrick 
V.  McNaughton 

433  a 
1688,  1690 

V.  Montclair  Ry. 

Co. 

1685 

V.  Seymour 

877,  878 

V.  Sharp 
V.  Swift 

1499 
1.535 

V.  Water  Works  Co. 

1043 

Warden  v.  Adams 

549 

,  786,  787,  806, 
817,  821,  1701 

Warder  v.  Enslen 

1145,  1152 

V.  Willyard 
Ware  v.  Bennett 

94 

1202 

V.  Egraont 
Wareham  v.  Brown 

547,  571 
129 

Warehime  v.  Carroll  Co.  Build.  Asso. 

1443,  1829 

Waring  v.  Cunlifie  650 

V.  Loder  398,  409,  412,  418 

V.  Smyth  44,  94 

V.  Somborn  738 

V.  Ward  751 

Wark  V.  Wiliard  528,  679 

Warner  v.  Blakeman  943,  1799,  1898 

V.  Brooks  349,  678,  1295 

V.  Crosby  500 

V.  Crouch  106 

V.  De  Witt  Co.  Nat.  Bank  722, 
1439,  1586,  1590,  1629 

V.  Fountain  592 

V.  Gouverneur  788,  832,  1498, 
1516,  1521,  1532 

V.  Helm  1545 

V.  Ins.  Co.  1821 

1-.  Jacob  1802 

r.  Juif  1141 

V.  Whittaker  555,  556 

V.  Winslow  479,  481,  503,  511 

Warren  v.  Boynton  1625 

f.  Branch  217,226 

V.  Burton  1439 

V.  Chapman  620 

V.  Emerson  280 

V.  Foreman  1576,  1670 

v.  Hayzlett  877,1709/; 

V.  Homestead  787 

V.  James  1741 

V.  Leiand  1873 

V.  Lovis  241,  244 

V.  Raymond  50 

V.  Sohu  609 

V.  Swett  552 

V.  Syme  489 

V.  Van  Brunt  177 

V.  Warren  848,  869 


Warrick  t;.  Hull  1911 

V.  Warrick  562 

Wartemberg  v.  Spiegel  624 

Warwick  v.  Dawes  644 

V.  Ely  1628 

V.  Hammell  1520,  1521 

Warwick  Inst.  v.  Providence  681  a 

Warwick  Iron  Co.  v.  Morton     1 182  a,  1 186, 

1606 
Wasatch  Min.  Co.  v.  Jennings        263,  267, 

316a,  1117 

Washburn  v.  Goodwin  1056,  1229 

V.  Hammond  628 

V.  Merrills  289 

V.  Wilkinson  1596 

Washington  v.  Bassett  1838 

Washington  B.  &  L.  Asso.  i*.  Beaghen 

728 
Washington  Co.  v.  Slaughter  873, 927  a 
Washington  F.  Ins.  Co.  v.  Kelly  411 

Washington  L.  Ins.  Co.  v.  Fleischauer 

1524 
Washington,   0.  &  W.   R.  R.  Co.  v. 

Cazenove  736 

Washington  University  i?.  Finch  1800 

Waterfall  v.  Penistone  435 

Waterman  v.  Curtis       644,  736,  1105,  1133 

V.  Hunt  1701 

V.  Kirk  wood  1202 

V.  Matteson        49,  687,  688,  689 

V.  Spaulding  1871 

V.  Webster  957 

Waters  v.  Bassel  769,  1439 

V.  Butler  1894 

V.  Chase  824 

V.  Crabtree  244,  245,  248,  254 

V.  Groom  1883 

y.  Hubbard       741,  742  a,  1561 

V.  Randall  252 

V.  Spofford  489 

V.  Stewart  44 

V.  Stickney  1388 

V.  Waters  972,  982 

Waterson  v.  Devoe  30,  713 

i».  Kirkwood  1202,1214  6 

Watford  v.  Gates  667,  702,  775,  1121 

Wathen  i'.  Glass  670 

Watkins  v.  Baird  626 

V.  Casou  938 

V.  Edwards  554,  595 

V.  Gregory  244 

V.  Hill  924,  926 

V.  Holman  1444 

V.  Houck  679 

V.  Jerman  1 663 

V.  Reynolds  162,  763 

V.  Stockett  299,  1060 

V.  Vrooman  162,  166 

V.  Watkins  1095 

V.  Williams  1063 

Watkinson  i'.  Root  651 

Watson  V.  Bell  237 

L'.  Bondurant  456,  1338 

V.  Campbell  499 

V.  Camper  1587 

915 


TABLE   OF   CASES. 


References  are  to  Sections. 


Watson  V.  Church  1420 

V.  Dickens  303,  383 

V.  Dundee,  &c.  Co.    479,  817,  848, 
1463,  1654 
V.  Gardner  848,  877 

V,  Grand  Eapids  &  I.  R.  Co. 

1636 

V.  Hawkins  1228 

V.  Hunter  685 

V.  Neal  1621 

V.  Priest  706 

V.Sherman  1837,1861,1876, 

1889,  1915,  1922 

V.  Spence  715,  1406,  1579 

V.  Steele  1069 

y.  Thurber  114 

V.  Watson  Manuf.  Co.  446 

Watt  I'.  Alvod  1420 

V.  Watt  1411,  1488 

Watts  V.  Bonner  378,  624 

V.  Gallagher  '  1423 

V.  Julian  1396,  1404,  1406,  1420 

V.  Miller  83  a 

V.  Symes  868 

Wattson  V.  Dowling  583 

Waugh  V.  Bailey  1647 

V.  Montgomery  917 

V.Riley  917 

"Way  V.  Arnold  529 

V.  Mullett  1093,  1095,  1797 

Wayman  v.  Cochrane  812,  924,  936 

Wayne  i'.  Hanham  1773 

Wayne  Co.  Sav.  Bank  v.  Low  657 

Wayt  I'.  Carwithen     162,  163, 165,  167,  168 

Weare  v.  Williams  710 

Wearse  v.  Fierce  612,  616,  632,  1297, 

1298,  1807  a 

Weatherhy  v.  Slack  1620,  1621 

V.  Smith  635,  1606  a 

Weathersly  v.  Weathersly  267,  303 

Weaver  v.  Alter  1080,  1701  a 

V.  Barden  460,  555,  788 

V.  Toogood  1621 

V.  Wilson  1508 

Webb  V.  Phmders  807 

V.  Haeffer  1740,1773,1827 

?;.  Hoselton       40,62,112,834,1747, 

1769 

V.  Lewis  1743,  1767 

V.  Mallard  1359 

V.  Maxan  1395,  1425 

V.  Meloy  854 

V.  Nightingale  1275 

V.  Patterson  250 

V.  Rice  277,  282,  309 

V.  Robbins  548,  573 

r.  Rorke  711,1126 

V.  Stone  71,  349,  908 

V.  Vt.  Cent.  R.  R.  Co.  1385 

Webber  v.  Curtiss  1821,  1906,  1911 

V.  Farmer  283 

V.  Ryan  1466 

V.  Taylor  591 

Weber  v.  Bridgman  964  <t 

V.  Herrick  1646 

916 


Weber  v.  Zeimet 

740 

Webster  v.  Bailey 

828 

V.  Bronston 

1632 

V.  Calden 

700 

V.  Maddox 

544,  586,  597 

V.  Mann 

210 

V.  Singley 

908,  1940 

V.  Vandeventer 

135,  795,  799, 
1283,  1293 

V.  Van  Steenbergh 

460,  527, 

548 

557,  586,  591 

Wedge  V.  Moore 

667 

Weed  V.  Beebe 

1439,  1558 

V.  Calkins 

1089 

V.  Covin 

72,  1225 

V.  Hall 

240 

V.  Hewlett 

790 

V.  Hornby 

1134 

V.  Lyon 

515 

V.  Stevenson 

241,  244,  1403 

Weed  Sew.  Mach.  Co.  v. 

Emerson          106, 

746,  748,  824 

V 

Maxwell      1709  & 

Weeden  v.  Hawes 

620 

Weeks  v.  Eaton 

802,  808 

V.  Garvey 

740,  744,  879 

V.  Haas 

114 

V.  Ostrander 

974  a 

V.  Thomas 

1116 

I'.  Tomes 

1141 

Weide  v.  Gehl 

254 

264,  302,  339 

Welder  v.  Clark 

293 

Weidner  v.  Thompson 

873 

Weil  V.  Churchman 

1225 

V.  Enterprise  Co. 

877 

V.  Howard 

1220,  1348 

V.  Uzzell 

1449,  1479,  1617 

Weilder  v.  Farmers'  Bar 

k 

571 

Weinberg  v.  Rempe 

459 

Weiner  v.  Heintz 

348,  870,  9.54,  1047, 

1052,  1459 

Weir  1-.  Field 

1344, 1717 

V.  Mosher 

922 

959,  966,  967 

V.  Simmons 

574 

Weisberger  v.  Wisner 

586 

Weiss  V.  Ailing 

1047,  1569 

Weisser  v.  Denison 

560,  562 

Welch  V.  Adams 

775 

V.  Beers 

743 

V.  Goodwin 

817,  969 

V.  Priest 

481 

808,  811,  966 

V.  Stearns 

1240 

Weld  V.  Madden 

467,  586 

V.  Rees             122 

7,  1838,  1862,  1881, 

1906,  1909 

V.  Sabin 

848, 1080 

Welles  V.  Baldwin 

464 

Welling  i\  Ryerson 

1620 

Wellington  v.  Gale 

1061,  1069 

Wells  V.  Atkinson 

1743 

V.  Caywood 

1771  a 

V.  Cooper 

1326 

V.  Garbutt 

1654 

v.  Harter             355,1196,1202,1207 

V.  Lincoln  Co. 

1678 

TABLE   OF   CASES. 


References  are  to  Sections. 


Wells  t;.  Maples  447 

V.  Morrow  265,  286,  555,  556 

V.  Tierce  1663 

V.  Rice  716,  945,  1637 

V.  Smith  523 

V.  Soniers  679 

V.  Tucker  1072 

V.  Van  Djke  674,715,1111, 

1129 

V.  Wells  1751,  1784,  1858 

Welsh  V.  Coley  646,  1861,  1898 

V.  Cooley  1785 

V.  Phillips  18,  804,  808,  809, 

860 

V.  Usher  169 

Welton  V.  Hull  879 

V.  Tizzard  464,  490 

Welp  V.  Gunther  697,  1365 

Wemple  v.  Stewart  1464 

Wendell  v.  Abbott  1243 

V.  New  Hampshire  Bank  1088 

Wentworth  v.  Tubbs  874 

Wentz  V.  Dehaven  974 

Werner  v.  Tuch  886,  981,  1351 

Wernwag  v.  Brown  1590 

Wert  V.  Naylor  460 

Wertz's  Appeal  462,  1355 

Weseott  V.  Gunn  374 

West's  Appeal  966 

West  V.  Bennett  26 

V.  Chamberliu  952 

V.  Chasten  1516 

V.  Conant  1531  a 

V.  Davis  1670 

V.  Fitz  542 

V.  Fitzgerald  1335,  1336 

V.  Hendrix  265,  275,  286,  326 

V.  Hindsey  329 

V.  Miller  1404.  1491 

V.  Reed  338,  870,  977 

V.  Reid  548 

V.  Shryer  1697 

West  Branch  Bank  v.  Chester      1176,  1654 

Westbrook  v.  Gleason      482,  527,  530,  535, 

559,586 
AVestchester  F.  Ins.  Co.  v.  Foster  397,  408 
Westerfield  v.  Bried  644 

Westerly  Sav.  Bank  v.  Stillman  Manuf. 

Co.  356,  456,  492,  538,  627 

Western  Bank  v.  Tallman  134 

Western  Ins.  Co.  v.  Eagle  F.  Ins.  Co.    1580, 

1698 
Western  Mass.  Ins.  Co.  v.  Riker  423 

Western  Md.  R.  R.  Co.  v.  Goodwin      1784, 

1788 
Western  Min.  &  Manuf.  Co.  v.  Coal 

Co.  586,  588 

Western  Nat.  Bank  v.  Maverick  Bank 

820  a 

Western  Reserve  Bank  (;.  Rotter  1426 

Western  Transp.  Co.  v.  Kildershouse      659 

AVestervelt  v.  Ilaff  460 

V.  Scott  788 

V.  Voorhis  465,  474 

V.  Wyckoff  575 


Westfall  V.  Jones 

V.  Westfall 
Westgate  v.  Handlin 


842 
336,  338,  339 
1634,  1751,  1847, 
1874 
Westheimer  v.  Thompson  848,  855 

Westlake  v.  Horton  293,  325,  342 

Westmoreland  v.  Carson  66,  67 

West  Point  Iron  Co.  v.  Reymert  499 

Wetherbee  v.  Green  339 

Wethered  v.  Boon  542,  546 

Wetherell,  ex  parte  182 

Wetherell  v.  Collins  1106,  1111 

V.  Stewart  646 

Wetherill  v.  Harris  102 

Wetmore  v.  Roberts  1127,  1128,  1751, 

1902 
Wetzler  y.  Schaumanu  1641,  1675 

Weyant  v.  Murphy  1075,  1630 

Weyrich  v.  Hobleman  634 

Whalley  y.  Eldridge  1210,1343 

V.  Small  520,  521 

Wharf  V.  Howell  275,  277 

Wharton  v.  Moore  147,  681 

Whately  i'.  Barker  643 

Wheat  V.  Kendall  742 

AVheaton  I'.  Phillips  112 

V.  A^oorhis  1493 

Wheeland  v.  Swartz  264 

Wheeler  v.  Bates  703 

V.  Ins.  Co.  400,  402 

V.  Kirtland  477 

V.  Menold  730 

V.  Morris  1067,  1421 

V.  Ruston  266 

V.  Scully  1751 

V.  Sexton  1747 

V.  Wheeler  950 

V.  Willard  869,  877 

Wheeler  &  Wilson  Manuf.  Co.  v.  How- 
ard 351,  1179, 1179  a,  1182 
Wheelock  v.  Hanna  900 
V.  Lee                            663,  1709  a 
Wheelwright  v.  Depeyster       523,  530,  723 
V.  Freeman    1290,  1292, 1293, 
1298 
V.  Loomer                           951 
Whelan  v.  McCreary                                  459 
V.  Reilly                                       1799 
Whichcote  v.  Lawrence                             711 
Whilden  v.  Pearce                                      906 
Whipperman  v.  Dunn                      877,  1464 
V.  Smith                                345 
Whipple  V.  Barnes               1193,  1204,  1215 
V.  Foot                                            697 
Whistler  y.  Webb                                      1100 
Whitakcr  y.  Hill                                        1804 
V.  Miller                               90,  589 
Whitbeck  v.  Rowe                1618,  1670,  1672 
Whitbread,  ex  parte                                     862 
Whitbread  v.  Boulnois                               552 
V.Jordan                          179.571 
Whitcher  y.  Webb                    11796,1182a 
Whitcomb  v.  Minchin                                1878 
V.  Simpson                                886 
V.  Sutherland         242,  324,  1067 

917 


TABLE   OF   CASES. 


References  are  to  Sections. 


Whitcomb  v.  Whiting 

1198 

Whitfield  V.  Riddle 

461,  557 

Wliite  V.  Allatt 

1606 

Whiting  V.  Beebe 

947 

V.  Bartlett 

1439 

V.  Eichelberger 

166 

V.  Blakemore 

217,  218 

V.  Gearty 

763,  764 

V.  Bond 

1061,  1069 

V.  New  Haven 

681  a 

V.  Brown 

420,421,  1135 

V.  White 

1163,  1171 

V.  Carpenter 

574 

Whitla  V.  Halliday 

1428 

V.  Coulter       1351,  1420,  1668,  1669, 

Whitley  v.  Lumber  Co. 

917,  1801,  1806, 

1670 

18130 

V.  Denman      99, 

465,  488,  494,  495, 

Whitlock  V.  Gordon 

755 

522 

V.  Gosson 

83  a,  1632 

V.  Downs 

221 

Whitmer  v.  Frye 

94 

V.  Evans 

1654 

Whitmore  v.  Sliiverick 

41 

V.  Ewer 

272, 1144, 1192 

V.  Tatum 

1229 

V.  Farley 

103 

Whitney  v.  Allen 

1586 

V.  Eoster 

253,  544,  574 

V.  Batchelder 

298 

V.  Griggs 

1521,  1531  a,  1536 

V.  Buckman 

65,  71,  136,  177, 

V.  Hampton 

520,  848,  870,  877, 

1454,  1462 

1072 

V.  Franklin 

944 

V.  Hermann 

66 

V.  French 

242,  915 

V.  Holnian 

14.39 

V.  Guild 

1244, 1257 

V.  Hyatt 

66,  1462 

V.  M'Kinney 

1100,  1373,  1374, 

V.  Knapp 

848 

1426 

V.  Life  Asso. 

724 

V.  Olney 

142 

V.  Lucas 

336,  634 

V.  Townsend 

258 

V.  McClellan 

1839,  1843,  1855 

V.  Traynor 

788,  841 

V.  McGarry 

515 

AVhitridge  v.  Taylor 

12.34 

V.  McNett 

109,  no.  Ill 

Whitsett  V.  Kershow 

335 

V.  Maynavd 

1121 

Whittacre  v.  Fuller 

533,  730,  942,  1202 

V.  Megill 

264, 627 

Whittaker  v.  Dick 

924,  929 

V.  Moore 

511,  1060 

V.  Wright 

1080 

V.  Newhall 

877 

Whittelsey  v.  Hughes 

1788 

V.  Owen 

91 

Whittemore  v.  Gibbs 

42,  808 

17.  Fatten 

528 

V.  Shiell 

1440 

V.  Perry 

584 

Whitten  v.  Saunders 

227 

V.  Polleys 

731,  1632 

Whittick  V.  Kane 

309,  514,  1060 

V.  Ilittenmyer 

13,  14,  29 

Whittier  v.  Dow 

1291 

V.  Bourke 

1606  a 

Whittington  v.  Wright 

523 

V.  Seaver 

1646 

Whittlesey  v.  Beall 

1462 

V.  Secor 

1387 

Whitton  V.  Whitton 

385 

V.  Stephens 

1785,  1792 

Whitworth  v.  Gaugain 

163 

V.  Story 

109 

V.  Rhodes 

1799,  1801,  1803 

V.  Stretch 

1504,  1698 

V.  Stuckey 

1502 

V.  Sutherland 

838 

Whorton  v.  Webster 

695 

V.  Turner 

641 

Wicke  V.  Lake 

586, 1579, 1588 

V.  Watkins 

1333,  1790 

Wickes  V.  Lake 

591,  1445 

V.  Watts 

1618 

Wickeuden  v.  Rayson 

1439 

V.  Wear 

667,  777 

Wicker  v.  Hoppock 

769,  1670,  1677 

V.  White 

586,  597 

Wickersham  v.  Reeves 

870 

V.  Whitney 

664 

Wicks  V.  Caruthers 

1939 

V.  Williams 

1498 

j;.  Perkins 

1236 

V.  Wilson 

99,  490 

V.  Scrivens 

1065 

V.  Zust 

1034,  1709  a 

V.  Westcott 

1862,  1906 

Whitecar  v.  Worrell 

1355 

Wigan  V.  Jones 

1897 

Whitehead  v.  Fisher 

230 

Wiggin  V.  Heywood 

665,  1929,  1934 

V.  Hellen 

711 

Wight  V.  Gray 

433,  436,  438 

V.  Morrill 

1701  a,  1703 

Wightman  v.  Gray 

1711 

V.  Vineyard 

178 

Wikoff  V.  Davis 

1620,  1621 

V.  Whitehurst                     1876  a 

Wilber  v.  Buchanan 

1504 

V.  Wooten 

1516,  1521 

V.  Peirce 

989 

Whitehurst  v.  Yandall 

226 

Wilbur  V.  Almy 

795 

Whiteside  v.  Haselton 

583 

V.  How 

1677 

White  Water  Canal  Co. 

V.  Vallette         178 

V.  Moulton 

689,  695  a 

Whitfield,  ex  parte 

1526 

Wilcox  V.  Allen 

409,  1185,  1701  a 

Whitfield  V.  Parfitt 

284,  1526 

V.  Bates 

320 

918 


TABLE   OF   CASES. 


References  are  to  Sections. 


Wilcox  V.  Campbell 

V.  Fairhaven  Bank 
V.  Hill 
V.  Howell 
I'.  Howland 
V.  Miische 
V.  Todd 
V.  Wilcox 
Wilder  v.  Butterfield 
V.  Huiighey 
V.  Houghton 
V.  Whittcmore 
Wildey  v.  Collier 
Wilfigoose  V.  Waylaud 
Wildsraith  v.  Tracy 
Wiley  V.  Angel 
V.  Ewing 
V.  Knight 
V.  Moor 
V.  Pinson 
V.  Williamson 
Wilhelm  v.  Lee 

V.  Schmidt 
Wilhelmi  v.  Leonard 
Wilhite  V.  Boulware 
Wilkerson  ?;.  Allen     1211, 
V.  Daniels 
V.  Eilers 
V.  Tillman 
Wilkes  V.  Collin 
V.  Harper 
V.  Smith 
Wilkins  V.  French 
V.  Fry 
V.  Gordon 
V.  McGehee 
V.  Wilkins 
V.  Wright 
Wilkinson  v.  Cheatham 
V.  Chilson 
V.  Flowers 

i;.  Green 
V.  Sterne 
AVillard,  ex  parte 
Willard  v.  Boggs 
V.  Cramer 
V.  Eastham 
V.  Finnegan 
V.  Fiske 
V.  Harvey 
V.  Henry 
V.  Van  Leeuwen 
V.  Wood 
V.  Worsham 
Willcox  V.  Foster 
Willets  V.  Burgess 

V.  Van  Alst 
Willett  V.  Winnell 
Williams's  Case 
Williams  v.  Ayrault 
V.  Baker 
V.  Bayley 
V.  Beard 
V.  Birbeck 


743 
1683  a 
547 
631,  645 
652 
766 
113,  114 
123 
464 
1343,  1539,  1548 
667,  670, 771 
391, 1310 
618 
546 
1789 
1673 
1048,  1064,  1425 
627 
90 
1359,  1378 
483,  787 
34,  1215 
1848,  1849 
848,  849,  931 
119 
1889,  1891,  1904 
1434,  1439,  1G09 
1835 
357,  367  a 
857 
874  a 
227 
33,  664 
1367,  1369 
1775,  1776 
1792 
1402, 1414 
1769 
117 
1570 
1195,  1204,  1210, 
1211,  1215 
1439,  1440 
906, 908 
1055,  1063 
1800 
495 
107, 109,  110 
1343,  1858 
1088 
783,  891 
1262,  1269 
1214 
761  a,  761  c 
741,  743,  755,  763 
877,  966 
1039 
1644 
7, 1042 
1539,  1573 
657 
497,  500,  626 
626 
50 
479,  512 


Williams  v.  Bishop 

V.  Bosanquet 
V.  Bowdin 
V.  Cheatham 
V.  Clink    . 
V.  Creswell 
V.  Crutcher 
V.  Dickerson 
V.  Englebrecht 
V.  Evans 
V.  Fitzhugh 
V.  Follett 
V.  Gillies 
V.  Hance 
V.  Hatch 
V.  Hayward 
V.  Hilton 
IK  Hodges 
V.  Jackson 
V.  Keyes 
V.  Meeker 

V.  Morancy 
V.  Otey 
V.  Owen 
V.  Paysinger 
V.  Perry 
V.  Pouns 
V.  Rhodes 
V.  Robinson 


V.  Roger  Williams  Ins.  Co. 
V.  Scott 


V.  Silliman 
V.  Smith 
V.  Sprigg 
V.  Starr 
V.  Stewart 
V.  Storrs 
V.  Strattou 
V.  Tatnall 
V.  Teachey 
V.  Terrell 
V.  Thorn 
V.  Thurlow 
V.  Tilt 

V.  Townseud 
V.  Waldo 
V.  Walker 
V.  Watson 
V.  Williams 
V.  Wilson 
V.  Woodruff 
Williams  College  v.  Mallctt 
Williamson  v.  Andrew 

V.  Berry 

V.  Brown       544,  547,  548,  552, 
553,  500,  584,  587,  588 

V.  Carskaddeu  497,  .500 

V.  Champlin  1351,  1511 


279,  293,  324 

785 

992 

287,  335 

632 

1478 

90 

1078 

619 

437 

620,  657,  658 

1228,  1716 

1715 

637,  652 

99 

110 

350,  354,  1382 

335 

961 

956 

1402,  1410,  1606, 

1606  a 

813 

1889 

264,  275,  884,  1043 

956,  957 

1621 

500,  1849 

1922 

1482,  1516,  1523 

397 

1189 

379 

1100 

591,  593 

355,  924 

1053 

1389 

185, 335 

463,  557 

787,  796,  805,  1789 

1331 

339,  340,  513,  518 

744, 746 

644 

713, 1080,1175 

1663 

110,  964,  1600 

1674 

332,  611 

722,  982 

1641 

706 

678 

1608,  1638 


Dale 
V.  Doo 
V.  Downs 
V.  Field 


V.  Fox 


1640,  1675 
1321 
1079 
1397,  1401,  1406, 
1643 
1498 


919 


TABLE   OF   CASES. 


References  are  to  Sections. 


Williamson  v.  Gerlach  1536,  1688 

V.  Kokomo  Build.  Asso.  134 
V.  New  Albany  R.  R.  Co.  1520 
r.  N.  J.  So.  R.  R.  Co.  158, 

429,  452,  1383 
V.  Probasco  1439 

V.  Stone  1880 

Williar  v.  Bait.  Loan  &  A.  Asso.  638 

Willingham  v.  Leake  225 

Wiilington  v.  Gale  664 

Willink  V.  Morris  C.  &  B.  Co.  154,  158, 

552,  573,  608,  1383,  1438 
Willis,  ex  parte  171 

Willis  V.  Caldwell  135 

V.  Farley  1324,  1584 

V.  Gay  576 

V.  Henderson  1398,  1399 

V.  M'Intosh  1047 

V.  Miller  1051  c 

V.  Twambly  104 

V.  Vallette  547,  559,  560,  562 

Willougbby  v.  Willougliby  459 

Wills  V.  McKinney  1482 

Willson  V.  Burton  741,  865 

V.  Schorpp  1686 

Wilniarth  v.  Bancroft  455,  689 

Wilmer  v.  Atlanta,  &c.  R.  R.  Co.  1616, 1859 
Wilsbaw  V.  Smith  890 

Wihon,  ex  parte  439,667 

Wilson  r.  Albert  1195 

V.  Bennett  1787 

y.  Bird  1179 

u.  Boyce  65,178 

V.  Brown  106,  874 

V.  Campbell  283 

V.  Carpenter  837 

V.  Cluer  1140 

V.  Drumrite  250,  304 

V.  Eigenbrodt  482,  606,  1701  a 

V.  European  &  N.  A.  Ry.  Co.     681  a 
V.  Fatout  "  815 

V.  Geisler  1540.  1545 

r.  Giddings  311 

V.  Hart  586 

V.  Harvey  634 

V.  Hayes  94 

V.  Hay  ward  1378,  1699 

V.  Hill  396,  401 

V.  Hooper  54 

V.  Hunter  121,  142,  547,  555 

V.  Jamison  680 

V.  Kimball  848 

V.  King  67,  750 

V.  Knight  460 

17.  Maltby  689,  693 

V.  Marsh  1141 

V.  Martin  674 

V.  McCuUough     546,  548,  570, 1355 
V.  McDowell  293,  323 

ij.  Metcalfe  1140 

r.  Miller         253,  544,  545,  548,  552 
W.Mills  83  a,  110 

V.  Murphy  848 

V.  Page  1240,  1838,  1840 

V.  Parshall  326,  335 

920 


Wilson  V.  Patrick 
V.  Peeples 
V.  Richards 
V.  Ring 
V.  Russ 
V.  Russell 


17.  Schoenlaub 

V.  Shoenberger 

V.  Smith 

V.  Soutii  Park  Com. 

V.  Spring 


250,  295,  329 
468 
305,  1159 
673, 675 
136, 1396,  1664 
366,  370,  372,  376,  377 


924 

244,  248 

1574 

90,  1902 

1427,  1789 


V.  Stillwell  384,  769,  1472 

V.  Tarter  1074 

V.  Thorn  1635 

U.Troup  129,512,808,1751, 

1768,1784,1785,1787, 

1789,  1790,  1796 

f.  Vanstone       ^711,848,870,871 

V.  Vaughau  573 

V.  Watts  631 

V.  White  1492 

V.  Williams  553 

V.  Wilson  136,  137,  1918 

z;.  Winter  623,625,1182  a 

Wilson  S.  Mach.  Co.  v.  Rutledge  1590 

Wilt  V.  Cutler  505 

Wilton  V.  Jones  1098 

t;.  Mayberry  874  c,  877 

Wiltshear  v.  Cottrell  448 

Wiltshire  v.  Smith  890 

Wimberly  r.  Wortham  612 

Wimer  v.  Wimer  1774  a 

Winans  v.  Wilkie  736,  748,  865 

Winchell  v.  Coney  349,  351 

Winchester  ?;.  Ball  1269 

V.  B.  &  S.  R.  R.  Co.      347,  565, 

570 

r.  Paine  1108 

Windbiel  v.  Carroll  903,  1085 

Windett  v.  Conn.  Mut.  L.  Ins.  Co.        1587 

V.  Hurlbut  1895 

V.  Union  Mut.  L.  Ins.  Co.       1080, 

1134 

Windham  Co.  Sav.  Bank  v.  Himes        1567 

Windle  v.  Bonebrake  956 

Wiudlett  V.  Hurlbut  1830 

Windsor  v.  Kennedy  907 

Winebrencr  v.  Johnson  1436 

Wing  V.  Cooper         16,  272,  277,  317,  1760 

r.  Davis  HOO 

V.  Hall  508 

V.  Hayden  1423 

V.  Hayford         953,  1227,  1854,  1866, 

1879, 1903,  1915 

V.  McDowell  537,  541 

V.  Rionda  1608 

Winslow  V.  Clark  808,  812,  1097,  1100, 

1233 

V.  McCall     715,  1687,  1751,  1929 

V.  Merchants'  Ins.  Co.      433,  436, 

441,  444,  445,  446 

Winstead  v.  Bingham  817 

Winston  v.  Browning  1 709  a 

V.  Burnell  296,  335 

Winsor  v.  Ludington  1711 


TABLE   OF   CASES. 


References  are  to  Sections. 


Winter  v.  Anson 

5G2 

Wood  V.  Goodfellow 

1202 

Winterbottom  v.  Tayloe 

1059 

V.  Goodwin 

1063 

Winters  v.  Franklin  Bank 

1699,  1701 

V.  Holland 

1323 

V.  Henderson 

1621 

V.  Hubbard 

878 

V.  Hub  Min.  Co. 

1332 

V.  Krebbs 

548,  583, 

1868 

Winton's  Appeal 

1553  a 

V.  KroU 

1636 

Wirebach  v.  I3ank 

1807  6 

V.  Lake 

534, 

1829,  1830, 

1895 

Wires  v.  Nelson 

682 

V.  Lordier 

458 

Wiscomb  v.  Cubberly 

961 

V.  McClughlan 

978 

Wisconsin  Bank  v.  Morley 

612a 

V.  Mann 

555 

,  557,  1642, 

1643 

Wisconsin  Cent.  R.  R.  Co.  v.  Wis- 
consin River  Land  Co. 
Wisconsin    Danine:    Mill    Co. 


57,  242 


Schuda 

487 

Wi.se  V.  Fuller 

755 

V.  Griffith 

1411 

V.  Newatney 
%}.  Tripp 
Wisehart  v.  Hedrick 

734 

560 
734 

Wiseman  v.  Hutchinson 

574, 576 

Wisner  v.  Chamberliu 

1178 

V.  Farnham 

1420 

Wiswall  V.  Ayres 

613 

V.  Sampson 
AViswell  V.  Baxter 

1204, 

1523 
1215,  1715 

Witczinski  v.  Everman 

364,  373,  374 

Witherell  v.  Colling 

1602 

V.  Wiberg 

47,  669 

Withers  v.  Little 

460 

V.  Morrell 

1500,  1502 

V.  Powers 

1502 

Withnell  v.  Wagon  Co. 

464 

Witmer's  Appeal 
Wittkowski  v.  Watkins 

687 
45, 1902 

Wochoska  v.  Wochoska 

133 

Woehler  v.  Endter 

4.53, 

1365, 1658 

Wofford  V.  Police  Board 

1773 

Wolbach  V.  Lehigh  Build.  Asso.  638 

Wolbert  v.  Lucas  736 

Wolcott  y.  Hamilton  1361 

r.  Scheuck  1351,1617,1639, 

1672 

V.  Weaver  1467 

V.  Winchester     481,  804,  811,  817, 

818,  819,  859,  1282,  1302 

AVolf  V.  Banning  1406,  1424 

V.  Heath  1334 

V.  Smith  722 

Wolfe  V.  Dowell  973 

V.  Dyer  490 

V.  McMillan  260,  267,  277 

Wolferman  ?j.  Bell  1492  a 

Wolffc  V.  Nail  229 

Wolford  V.  Baxter  444,  447 

Wolverton  v.  Collins  84 

Wontner  y.  Wright  1708 

Wood's  Appeal  504,  517,  959 

Wood  V.  Augustine  1204,  1897 

V.  Baker  1144 

V.  Broad  ley  744 

V.  Chapin  460,  467,  474,  527,  557 

V.  Cochrane  495,  500 

V.  Colvin  1899 

V.  Condit  611,  615 

v.  Feiton  .           1116 


V.  Mastick  1444 

V.  Matthews  304 

V.  Moorehouse  1414,  1612,  1838 

V.  Rayburn  555 

V.  Robinson  461 

V.  Shields  1550 

V.  Simons  517 

V.  Smith  751,  768,  881 

V.  Stanberrv  1353 

i;.  Surr        '  1108  a,  1566 

V.  Trask  57,  606,  822,  1699 

V.  Whelen  128,  433,  436,  1114, 

1618 

V.  Williams  1384,  1388 

V.  Wood  980 

Woodard  v.  Fitzpatrick  1586 

Woodburn  v.  Gannon  981 

Woodbury  v.  Aikin  972 

V.  Bruce  966 

V.  Dorman  177 

V.  Fisher  85,  501 

V.  Manlove  1333 

V.  Swan  680,  736,  748,  879 

Wooden  v.  Haviland  97,  1482 

Woodford  v.  Brooking  1572 

Woodham  v.  First  Nat.  Bank                433  a 

Woodhull  V.  Osborne  1351 

V.  Reid  870 

Woodlee  v.  Burch  712 

Woodman  v.  Francis  455 

Woodruff  V.  Cook  709 

V.  Depue  843,  1375,  1383, 

1426,  1698 

V.  Halsey  695 

V.  King  817 

V.  Morristown  Inst.        838,  1498 

V.  Mutschler  959,  1387,  1388, 

1389 

V.  Robb  62,  271,  281,  1769 

V.  Stickle  722 

Woods  V.  Farmere  523,  529,  5.50,  586 

V.  Hilderbrand  39,  716 

?;.  Love  1412 

V.  North  1606 

V.  People's  Nat.  Bank                   134 

Woods  V.  Spalding  1623 

V.  Wallace  166,  277,  492 

V.  Woods  674,  1093 

Woodside  v.  Adams  43 

Woodson  «.  Allen  504,517 

V.  Collins  467,  589 

V.  Murdock  178 

V.  Veal  342  c 

Woodville  v.  Read  386 

V.  Ridgcway  720 

921 


TABLE   OF  CASES. 


References  are  to  Sections. 


Woodward  v.  Boro 

504,  517 

Wright  V.  Dame 

542 

V.  Cowdery 

1569 

V.  Douglass 

467 

V.  Davis 

870,  873 

V.  Eaves 

915,  1202 

V.  Echols 

226 

V.  Henderson 

52 

V.  Jewell 

342  c,  676 

V.  Howell 

1396 

V.  Parsons 

702 

V.  Jones 

464 

V.  Phillips 

1112, 1126 

V.  Lake 

694 

V.  Pickett 

273 

455,  692,  697 

V.  Langley       358,  1200, 

1420,  1718 

V.  Republic  F 

.Ins 

.  Co.           399 

V.  Mahaffey 

.335 

V.  Wood 

1100,  1368 

V.  Morgan 

624 

Woodworth  v.  Bennett 

619 

V.  Morley 

1068 

V.  Blair 

1439,  1609 

V.  Nutt 

1628 

V.  Carman 

295,  328,  338 

V.  Parker 

82 

,  822,  1701 

V.  Guzman 

60 

V.  Patterson 

850 

V.  Morris 

258 

V.  Peet 

624 

V.  Paige 

546,  547.  548 

V.  Robinson 

1388 

Wooklridge  v.  Miss.  A''al. 

Bank     '           600 

V.  Rose           1695,  1792, 

1927,  1931 

Woolery  v.  Grayson 

1587 

V.  Shumway 

176,331,  611,  679, 

Woolfolk  V.  Manuf.  Co. 

495 

1471 

Woollen  V.  Hillen 

605 

V.  Sperry 

672 

Woolley  V.  Holt 

31,  670,  1521 

V.  Storrs 

761a 

Woolner  v.  Wilson 

1397 

V.  Troutman 

217,  229 

Woolsey  v.  Jones 

89 

V.  Ware 

135 

Woonsocket  Inst.  v.  Worsted  Co.          1787, 

t;.  Whithead 

1049 

1843,  1892,  1897 

V.  Wood 

588 

V.  Gouldin 

1335 

V.  Wright 

393 

Wooster  v.  Case 

1458 

Wrixon  v.  Vize 

1142 

V.  Cavender 

971 

Wroten  v.  Arniat 

134 

Wooteu  V.  Bellinger 

239, 670 

Wroiit  V.  Dawes 

909 

Woofers  v.  Joseph 

1051 

Wurcherer  i'.  Hewitt 

1439 

Worcester  Mech.  Sav.  Bank 

V.  Tliayer 

Wyatt  V.  Barwell 

539 

678  a,  724 

V.  Hodsou 

1198 

Worcester  Nat.  Bank  v.  Cheenev            508, 

V.  Stewart 

466 

788, 

817 

872,  885,  926 

Wych  V.  East  Ind.  Co. 

1195 

Work  V.  Harper 

488,  495 

Wyckoff  V.  Remsen 

.501,  509 

Workman  v.  Greening 

293,  324,  335 

V.  Scofield 

1516, 

1535,  1536 

Worley  v.  Dryden 

335 

WycofF  V.  Combs 

1590 

V.  Naylor 

1838 

Wyeth  V.  Branif 

641,  642 

Wormell  v.  Nason 

1902,  1906 

Wylie  V.  Karner 

1606 

Wormley  v.  Wormley 

542,555 

V.  McMakin 

1181 

Wormser  v.  Merchants'  Nat.  Bank         1.516 

V.  Welch 

1365 

Wormnth  v.  Tracy 

827 

Wyllie  V.  Pollen 

563 

Worrel  v.  Smith 

218 

Wyman  v.  Babcock 

285,  322,  339,  342, 

Worsham  v.  Freeman 

496,  1323 

1152 

V.  Hardaway 

1647 

V.  Hooper 

811,  868,  981 

Worsley  i'.  Scarborough 

583,  1411 

V.  Russell 

158,  1190, 

1192, 1396 

Worster  v.  Great  Falls  Co. 

1243 

Wynkoop  v.  Cowing 

293, 

1039,  1046 

Worth  ;;.  Hill 

1576,  1621 

Wynn  v.  Carter 

474 

Worthington  v.  Bicknell 

901 

V.  Newborough 

1535 

V.  Bullitt 

99 

Wynne,  in  re 

12.33 

V.  Lee 

1388,  1402,  1414 

Wynne  v.  Styan 

1063,  1198 

V.  Major 

966 

V.  Morgan 

604,  863 

Worthy  v.  Warner 

9: 

4,  1272,  1306, 
1316 

Y. 

Wostenholme  v.  Davies 

964 

Yale  V.  Dederer 

109,  110 

Wotten  V.  Copeland 

706 

V.  Stevenson 

1618, 

1857,  1921 

Wrede  v.  Cloud 

591 

Yancey  v.  Mauck 

217 

Wright,  ex  parte 

183 

Yaple  V.  Stephens 

874,  877 

Wright  V.  Austin 

114 

Yarborough  v.  Wise 

1940 

V.  Bates        250, 

251, 

273,  317,  328, 

V.  Newell 

315, 

1148,  1159 

597 

Yard  v.  Eland 

761  a 

V.  Briggs 

743,  748,  750 

Yates  V.  Aston 

70 

u.  Bundy           611,644,1383,1439, 

V.  Hambly 

1153,1401,  1547  a 

1494,  1769 

V.  J6yce 

696 

922 


TABLE   OF  CASES. 


References  are  to  Sections. 


Yates  V.  Smith 

239 

Young  V.  Shauer 

971 

V.  Yates 

250 

V.  Tarbell 

468 

Yates  Co.  Nat.  Bank  v 

.  Baldwin              788 

V.  Thompson 

511.  513,  1141 

Ybarra  v.  Lorenzana 

283 

V.  Ward 

1397 

Yeatman  v.  Kintr 

609 

V.  Williams 

1063,  1086 

Yelverton"^.  Shelden 

368,377,  1100 

V.  Young 

391, 1604 

Yeomans  v.  Rexford 

936 

Youngman  v.  Elmira  &  W 

.  R.  R.  Co.      48, 

Yerger  v.  Barz 

508,  560 

452,  583,  667,  1773 

York  V.  Allen 

1.500,1502,  16.33 

Youngs  V.  Public  Schools 

763,  1709 /v 

York  Building  Asso.  v 

MacKenzie        1878 

V.  Wilson 

69,  523,  524,  531 

York  Co.  Sav.  Bank  v. 

Roberts                943 

Yount  V.  Morrison 

1786 

York  Manuf.  Co.  v.  Cutis                       1293 

Yourt  V.  Hopkins 

1861 

Youker  v.  Treadwell 

1751 

Youse  V.  M'Creary 

1229 

Youle  V.  Richards 

251,  308 

Youst  V.  Martin 

556 

Young  V.  Atkins 

229 

Yundt  V.  Roberts 

620 

V.  Bloomer 

1673 

V.  Brand 

1654 

V.  Devries 

466 

Z. 

V.  Duvall 

500 

V.  Graff 

109,  114, 1785 

Zabriskie  v.  Salter 

1625 

V.  Guv 

460,  583,  586,  593 

V.  Smith 

1389 

V.  Hil'l 

869,  873,  966 

Zsegel  V.  Kuster 

1062,  1414,  1420 

V.  Hunter 

901 

Zane  v.  Fink 

339 

V.  Keogh 

1637 

V.  Kennedy 

129 

V.  McKee 

104 

Zann  v.  Haller 

81 

V.  Miller         813,  817,  819,  837,  1280 

Zeiter  v.  Bowman 

1411,  1531 

V.  Mont.  &  Eu 

faula  R.  R.  Co. 

Zekind  v.  Newkirk 

1709  6 

1432,  1439,  1524 

Zeller  v.  Adam 

435 

V.  Morgan 

858,  876,  877 

V.  Eckert 

1211a 

V.  Northern  111. 

C.  &  I.  Co.            670 

Ziel  V.  Dukes 

11796 

V.  Omohundro 

1114,  1123  a,  1134, 

Zingsem  v.  Kidd 

1464 

1597 

Zollman  v.  Moore 

1654 

V.  Roberts 

1787,  1795 

Zorn  V.  R.  R.  Co. 

460 

V.  Ruth 

1229 

Zuver  V.  Lyons 

295 

923 


INDEX. 


References  are  to  Sections. 

ABSOLUTE  CONVEYANCE,  made  for  security,  is  a  mortgage,  264. 

delivered  in  payment  of  an  existing  debt,  267. 

parol  evidence  to  show  mortgage,  282-342. 

fraudulent  grantor  not  aided  in  redeeming,  283. 

true  character  of,  inquired  into,  324. 

based  on  preexisting  debt,  326. 

delay  in  asserting  it  to  be  a  mortgage,  330. 

immaterial  that  it  is  made  by  debtor,  331. 

when  a  trust,  332. 

grantor  redeeming  must  do  equity,  336. 

election  to  treat  conveyance  as  absolute,  338. 

as  to  third  persons  grantee  is  owner,  330. 

grantee's  liability  for  land  sold,  341. 

bill  in  equity  to  redeem  as  from  mortgage,  342. 

effect  of  an  exchange  of  land  by  mortgage,  342  h. 

in  some  States  such  mortgage  does  not  pass  legal  title,  342  c. 

an  alienation  within  terms  of  an  insurance  policy,  423. 

record  of  separate  defeasance,  548. 

purchaser  may  rely  upon  apparent  title,  548. 

mortgagor  may  release  by  parol  agreement,  711. 

grantor  in  may  redeem  when  a  mortgage,  1060. 

grantee  in  possession  liable  to  account,  1117. 
ABSTRACT  OF  TITLE,  mortgage  of,  148. 
ACCEPTANCE  OF  MORTGAGE,  essential  to  its  execution,  84. 

subsequent,  85. 

by  cestui  que  trust  presumed,  88. 
ACC'ESSIONS  to  mortgaged  property  covered  by  mortgage,  14'.i. 

products  of  the  soil,  150. 

growing  crojj,  151. 

to  the  franchise  of  a  corporation,  155. 

of  vendor  in  possession,  234. 
ACCIDP:NT  or  mistake,  ground  for  relief  from  foreclosure,  127." 

ground  for  setting  aside  foreclosure  sale,  1675. 
ACCOUNT,  of  mortgagee  in  possession,  1114-1143. 

925 


INDEX. 

References  are  to  Sections. 
ACCOUNT—  continued. 

reference  to  State,  1104. 

wholly  a  matter  of  equitable  jurisdiction,  1115. 
mortgagee  chargeable  only  upon  redemption,  1116. 
grantee  in  possession  under  absolute  deed,  1117. 
who  is  liable  to  account,  1118. 
junior  mortgagee  may  compel  account,  1118  a. 
assignee  stands  in  place  of  assignor  respecting,  llli). 
no  liability  unless  possession  be  taken,  1120. 
What  the  mortgagee  is  chargeable  with,  1121-1125. 
when  mortgagor  remains  in  possession,  1121. 
when  mortgagee  himself  occupies,  1122. 
accountable  only  for  actual  rents,  1123. 
except  in  case  of  wilful  default  or  negligence,  1123. 
qualification  of  the  general  rule,  1123  a. 
mortgagee  must  account  for  waste,  1123  b. 
when  he  has  kept  no  jiroper  accounts,  1124. 
working  of  a  mine,  1125. 
Allowances  for  repairs  and  improvements,  1126-1131. 
rule  as  to  repairs,  1126. 
rule  as  to  improvements,  1127. 
exception  to  rule,  1128. 
necessary  and  ornamental  repairs,  1129. 
when  property  is  intermingled,  1130. 
expenses  of  running  a  church,  1131. 
Alloivance  of  compensation,  1132,  1133. 

mortgagee  not  entitled  to,  for  his  own  services,  1132. 
rule  in  Massachusetts,  1133. 
rule  in  Connecticut,  1133. 
Alloivance  for  disbursements,  1134-1138. 
taxes  paid  by  mortgagee,  1134. 
insurance  premiums,  1135. 
prio*:*  incumbrances  paid,  1137. 
counsel  fees  paid,  1138. 
Annual  rests,  1139-1143. 

rule  for,  in  stating  account,  1139. 
when  there  is  a  surplus  of  rents,  1140. 
binds  subsequent  incumbrancers,  1142. 
may  be  opened  for  fraud,  1 1 43. 
ACCOUNTING,  payment  by,  919-923. 
ACKNOWLEDGMENT  essential  to  admit  to  record,  83. 
before  deed  is  written  not  valid,  83. 
a  requisite  to  registration,  488,  495. 
by  attorney,  495. 
926 


INDEX. 

References  are  to  Sections. 
ACKNOWLEDGMENT—  eoM^nzMfitf. 

officer  taking  must  be  qualified,  496. 

is  a  ministerial  act,  497. 

certificate  of  olHcial  character  of  officer,  498. 

certificate  of  officer's  personal  acquaintance,  499. 

certificate  of  not  conclusive,  500. 
a  mistake  in,  500. 
as  to  statement  of  facts,  500. 
fraud  in,  500. 

of  right  of  redemption  by  mortgagee  in  possession,  1162-1171. 
ACTION,  when  right  accrues  on  debt,  76,  1174-1191,  1289. 

right  of  subject  to  mortgage,  159. 

defence  that  right  of  has  not  accrued,  1301. 

bill  to  foreclose  should  show  it  has  accrued,  1471. 
ADJOURNMENT  of  sale  under  decree  of  court,  1634. 

discretionary  power  of  officer  as  to,  1634. 

sale  may  be  kept  open  when,  1635. 

of  sale  under  power,  1873-1875. 

mortgagee  may  exercise  discretion,  1873. 

whether  notice  of  required,  1874. 
ADMINISTRATOR.     (See  Executor.) 
ADVANCES.     (See  Future  Advances.) 
ADVERSE  CLAIMANTS  cannot  be  made  parties   to  foreclosure  suit, 

1440,  1455,  1474,  1489. 
ADVERSE  POSSESSION.     (See  Possession.) 
ADVERTISEMENT,  foreclosure  by.     (See  Power  of  Sale.) 

in  Maine,  1240. 

in  New  Hampshire,  1241. 
AFFIDAVIT  of  sale  under  power,  1904,  1905. 

omission  of  does  not  invalidate  title,  1904. 

what  required  to  make  it  presumptive  evidence,  1905. 
AFTE REACQUIRED  PROPERTY,  when  subject  to  mortgage,  152. 

rule  as  to,  153. 

of  railroad  companies,  154,  156. 

of  corporation,  whether  incident  to  the  franchise,  155. 

when  mortgage  passes  without  particular  mention,  157. 

mortgage  of  attaches  subject  to  existing  liens,  158. 

as  affected  by  registration,  529. 
AFTER-ACQUIRED  TITLE   of  mortgagor  inures  to  mortgagee,    679, 
825. 

rule  does  not  apply  when  title  wrongfully  acquired,  671>. 

by  tax  sale,  680. 

not  a  defence  in  foreclosure  suit,  1305. 

when  decree  of  sale  covers,  1581,  1656. 

927 


INDEX. 

References  are  to  Sections. 

AGENT.     (See  Attorney.) 

notice  to  affects  principal,  560. 
notice  to  director  of  corporation,  570. 
when  fraud  of  avoids  mortgage,  612. 
taking  commission  from  mortgagor,  whether  usury,  642. 
authority  of  inferred  from  possession  of  securities,  964. 
AGREEMENT  to  give  a  mortgage  is  in  equity  a  mortgage,  163. 
need  not  be  in  writing,  164. 
by  corporation  entered  on  its  records,  165. 
affecting  a  mortgage  should  be  recorded,  478. 
fixing  priority  of  mortgages,  608. 
to  pay  taxes  on  mortgage  debt  not  usury,  636. 
of  grantor  to  discharge  a  mortgage,  766. 
AGREEMENT  TO  RECONVEY,  when  a  mortgage,  241-281. 
ALABAMA,  nature  of  a  mortgage  in,  18. 

power  of  a  married  woman  to  mortgage,  117. 
parol  evidence  to  prove  a  mortgage,  286. 
usury,  law  of,  63o. 

assignment  of  debt  without  mortgage  in,  817. 
provisions  for  entering  satisfaction  of  record,  992. 
redemption  after  foreclosure,  1051,  1322. 
statute  of  limitations,  ten  years,  1198.     | 
statutory  provisions  relating  to  foreclosure,  1322. 
strict  foreclosure  in,  1541. 

power  of  sale  mortgages  and  trust  deeds  in,  1723. 
ALIENS  may  hold  mortgages,  132. 
ALTERATIONS  of  mortgage,  what  are  material,  94. 
which  do  not  change  legal  effect,  95. 
verbal,  after  execution,  96. 

when  a  defence  to  a  foreclosure  suit,  353,  1492  h. 
ANGLO-SAXONS,  mortgages  used  by,  1,  2. 
ANNUAL  RESTS,  in  stating  mortgagee's  account,  1139,  1140. 
ANSWER  in  foreclosure  suit,  1479-1515. 

ANTECEDENT  DEBT,  mortgagee  for  not  a  purchaser,  460. 
APPEAL  from  final  decree,  1600. 

APPROPRIATION  OF  PAYMENT.     (See  Payment,  904-912.) 
ARIZONA  T.,  provisions  for  entering  discharge  of  record,  992  a. 
statutory  provisions  relating  to  foreclosure,  1322  a. 
usury  laws  in,  633. 
compound  interest  allowed  in,  650. 

statutory  provisions  relating  to  foreclosure  and  redemption,  1322  a. 
power  of  sale  mortgages  and  trust  deeds  in,  1723  a. 
ARKANSAS,  nature  of  a  mortgage  in,  19. 

written  authority  for  filling  blanks,  90. 
928 


INDEX. 

References  are  to  Sections. 
ARKANSAS  —  continued. 

parol  evidence  to  prove  a  mortgage,  287. 

usury  laws  in,  633. 

compound  interest  in,  G50. 

entering  discharge  of  record,  992. 

no  redemption  after  foreclosure,  1051,  1323. 

statute  of  limitations,  five  years,  1193. 

statutory  provisions  relating  to  foreclosure,  1323. 

power  of  sale  mortgages  and  trust  deeds  in,  1724. 
ASSIGNEE  of  bankrupt  mortgagor  has  only  rights  of  mortgagor,  468. 
ASSIGNEE  OF  MORTGAGE  is  a  purchaser,  482. 

priority  between  different  assignees,  483. 

should  notify  owner  of  estate  of  his  rights,  791. 

stands  in  place  of  assignor  in  respect  to  accounting,  1119. 

party  to  foreclosure  suit,  1371-1373. 

holding  as  collateral  security  rnay  foreclose,  1374,  1375,  1375  a. 

of  mortgage  without  note  cannot  foreclose,  1376. 

of  note  may  foreclose,  1377. 

of  note  of  junior  mortgage,   party  defendant  to  foreclosure  suit, 
1427. 

title  of,  must  be  shown  on  foreclosure,  1457. 

defenses  against,  in  foreclosure  suit,  1485. 

need  not  have  paid  value,  1486. 

when  he  takes  free  from  equities,  1487. 

equitable  cannot  execute  power,  1 789. 
ASSIGNMENT  of  rents  and  profits,  an  equitable  mortgage,  171. 

of  contract  of  purchase,  an  equitable  mortgage,  172,  173,  174. 

of  certificate  of  public  lands,  176. 
ASSIGNMENT   FOR    BENEFIT    OF    CREDITORS,    when    fraudu- 
lent, 630  a. 
ASSIGNMENT   OF   MORTGAGE,  with  agreement  to  reassign,  280. 

absolutely  as  collateral  security,  333. 

of  contract  of  purchase  as  security,  334. 

recording  acts  apply  to,  479. 

record  of  not  notice  to  mortgagor,  480. 

effect  of  recording,  481. 

assignee  is  a  purchaser  within  recording  acts,  482. 

delivery  of  note  essential  to,  483. 

manner  of  recording,  484. 

effect  of  recording,  534. 

a  formal  assignment,  786. 

legal  title  transferred  by  deed  only,  787. 

consideration  of,  788. 

mortgagee  disseised  cannot  make  an  assignment,  789. 
VOL.  u.  59  929 


INDEX. 

References  are  to  Sections. 
ASSIGNMENT  OF  MORTGAGE  —  cojitinued. 

possession  of  mortgagor  no  obstacle,  789. 
delivery  is  essential  to,  790. 

whether  it  may  be  compelled  on  payment,  792,  1086. 
when  it  may  be  compelled  in  equity,  793. 
Who  may  make,  794-803, 

a  joint  mortgagee,  794. 

one  of  several  trustees  cannot,  795. 

one  of  several  executors  may,  796. 

foreign  executor  cannot,  797. 

whether  officer  of  corporation  may,  798. 

by  unincorporated  association,  799. 

by  partnership,  800. 

by  attorney,  801. 

his  authority  need  not  be  in  writing,  801. 
>when  a  mortgage  of  indemnity  is  subject  to,  802. 
of  mortgage  conditioned  to  support,  803. 
Whctt  constitutes,  804-812. 

of  mortgage  without  the  debt,  804. 
of  mortgage  generally  carries  the  debt,  805. 
delivery  of  mortgage  without  note  is  not,  806. 
assignment  of  mortgage  and  delivery  of  note  is,  807. 
deed  of  release  or  quitclaim  is,  808. 
deed  of  heir  before  settlement  of  estate,  809. 
deed  by  mortgagee  constitutes,  810. 
deed  by  mortgagee  of  part  of  the  estate  is,  811. 
an  ineffectual  foreclosure  operates  as,  812,  1678. 
Equitable,  813-822. 

what  constitutes,  813. 

mortgagee  cannot  discharge  after,  814. 

of  bond  for  a  deed,  815. 

by  power  of  attorney,  816. 

of  debt  without  mortgage,  817. 

does  not  carry  legal  estate,  817. 
legal  interest  of  mortgagee,  818. 
mortgagee  holds  legal  estate  in  trust,  819. 
effectual  as  to  whom,  820. 
of  note  after  foreclosure  of  mortgage,  820  a. 
assignment  of  part  of  debt,  821. 
when  assignee  of  one  note  has  priority,  822. 
Construction  and  effect  of  assignment,  823-833. 
law  of  place,  823. 

passes  nothing  beyond  the  mortgage  title,  824. 
covenants  by  assignor,  824  a. 
930 


INDEX. 

References  are  to  Sections. 
ASSIGNMENT  OF  MORTGAGE  -  continued. 

passes  after-acquired  title  when,  825. 

carries  power  of  sale,  826. 

as  collateral  security,  827. 

induced  by  fraudulent  representations,  828. 

made  in  fraud  of  creditors,  828. 

passes  all  the  securities,  829. 

whether  it  carries  a  separate  contract  of  guaranty,  830. 

covenant  that  assignor  will  not  collect,  831. 

usury  in,  832. 

cancellation  of,  833. 
Whether  subject  to  equities,  834-847,  1507. 

of  negotiable  note  before  due  free  from  equities,  834,  1487. 

although  consideration  of  mortgage  void,  835. 

when  made  subject  to  rights  of  mortgagor,  836. 

when  note  indorsed  and  mortgage  delivered,  837. 

doctrine  that  assignee  takes  subject  to  equities,  838. 

ground  of  this  doctrine,  839. 

doctrine  of  United  States  Supreme  Court,  840. 

when  note  is  overdue,  841. 

if  no  note  has  been  given,  841  a. 

of  bond  is  subject  to  equities,  842. 

whether  rule  limited  to  equities  between  original  parties,  843. 

equities  in  favor  of  third  persons,  844. 

doctrine  approved  in  New  York,  845. 

no  parol  trust  can  attach,  846. 

equities  arising  after  assignment,  847. 

of  mortgage  to  one  co-tenant  no  merger,  849. 

to  wife  of  mortgagor  no  merger,  850. 

when  it  operates  as  a  discharge,  861,  864. 

to  one  who  has  assumed  the  mortgage,  865. 
cannot  be  compelled  upon  payment,  1086. 

doctrine  otherwise  in  New  York,  1087,  1447. 
after  entry  does  not  stay  foreclosure,  1266. 
writ  of  entry  after  assignment  as  collateral,  1 282. 
pending  foreclosure  suit,  1488. 

amount  of  decree  after  assignment  as  collateral,  1592. 
whether  priority  of  assignment  gives  priority,  1701. 
when  legal,  passes  power  of  sale,  1787. 
equitable,  does  not  pass  the  power,  1789. 
after  advertisement  under  power  of  sale,  1832. 
invalid  sale  under  power  operates  as,  1902. 
ASSUMPTION  OF  MORTGAGE,  by  married  woman,  116,  753. 
by  purchaser  of  equity  of  redemption,  740-770. 

931 


INDEX. 

References  are  to  Sections. 
ASSUMPTION  OF  MORTGAGE  -  continued. 
mortgagor  becomes  surety  for  purchaser,  741. 
of  proportionate  part  of  mortgage,  743. 
agreement  to  pay  mortgage,  749. 
verbal  promise  to  assume,  750. 
grantee  bound  by  accepting  deed,  752. 
married  woman  bound  on  her  covenant  to  assume,  753. 
ground  on  which  mortgagee  may  take  advantage  of,  755. 
junior  mortgagee  not  liable  on  agreement  for,  756. 
in  absolute  deed  which  is  in  fact  a  mortgage,  757. 
ground  on  which  mortgagee  may  have  benefit  of,  758,  759. 

that  it  is  a  promise  for  his  benefit,  758. 

grantor  need  not  be  liable  for  debt,  760. 

promise  must  be  express,  761. 

doctrine,  New  York  and  other  States,  762. 
whether  grantor  can  release  the  purchaser,  763. 
when  grantor  may  release  the  purchaser,  763. 
condition  to  pay  or  assume,  765. 
remedy  of  grantor  an  agreement  of,  768. 
when  agreement  may  be  enforced,  769. 
measure  of  damages  for  breach  of  agreement,  770. 
ATTACHMENT  of  equity  of  redemption  enforced  upon  surplus,  665. 

none  of  mortgagee's  interest,  701. 
ATTORNEY  must  execute  deed  in  name  of  principal,  130. 
fees  of,  secured  by  mortgage,  359,  1606. 
acknowledgment  by,  495. 
delivery  to,  501. 
notice  to  aifects  principal  when,  560. 

on  what  principle  the  doctrine  rests,  561. 

must  be  in  the  same  transaction,  562. 

must  be  of  matter  material  to  the  transaction,  563. 

when  same  attorney  is  employed  by  both  parties,  564. 

when  agent  himself  is  a  party,  565. 
provision  for  payment  of  fees  for  foreclosure  not  usurious,  635. 
assignment  of  mortgage  by,  801. 
authority  of  to  receive  payment,  964. 
mortgagee  allowed  fees  paid  for  collecting  rents,  1138. 
fees  in  foreclosure  suits,  1606. 
stipulation  for  not  usury,  1606  a. 
fees  in  case  of  sale  under  power,  1923. 
fees  for  preparing  advertisement,  1924. 

BANKRUPTCY,  assignee  has  only  debtor's  rights,  468. 
mortgagee  may  prove  claim  in  or  not,  729. 
932 


INDEX. 

References  are  to  Sections. 

BANKRUPTCY  —  continued. 

effect  of  upou  redemption  by  debtor,  1073. 

discharge  does  not  prevent  foreclosure  suit,  1231. 

in  wliat  court  lien  may  be  enforced,  1232. 

suit  in  state  court  not  suspended,  1233. 

when  bankruptcy  proceedings  are  in  another  State,  1234. 

court  may  order  sale  subject  to  mortgage,  1235. 

how  mortgagee  may  prove  his  claim  in,  1236. 

assignee  in,  should  be  made  party  to  foreclosure  suit,  1438. 

sale  without  leave  of  court  in,  1908. 

surplus  proceeds  of  sale  under  power  belong  to  assignee,  1932. 
BANKS,  national,  prohibited  loaning  on  mortgages,  134. 

remedy  for  violation  of  this  provision,  134. 
BEQUEST  of  mortgage,  700. 

BILL  OF  INTERPLEADER,  answer  to  foreclosure  suit  by,  1515. 
BLANKS  IN  MORTGAGE,  authority  to  fill,  90,  91. 
BONA  FIDE    PURCHASER,  not  bound  by  equitable  mortgage.   162, 
710. 

must  have  paid  all  the  purchase-money,  342  a. 
BOND,  subject  to  equities  in  hands  of  assignee,  842. 
BONUS,  paid  for  extension  of  mortgage,  647,  648. 

application  of,  912. 
BUILDING,  mortgage  of.  as  part  of  the  realty,  142. 

removal  of  from  mortgaged  land,  143. 

floated  off  the  mortgaged  land,  144. 

on  leased  land,  mortgage  of,  146. 

on  mortgaged  land  a  fixture,  433. 
BUILDING  ASSOCIATIONS,  usury  in  mortgages  of,  638. 
BURDEN  OF  PROOF  that  a  mortgage  is  usurious,  634. 

CALIFORNIA,  nature  of  a  mortgage  in,  20. 
form  of  mortgage,  61. 
written  authority  for  filling  blanks,  90. 
parol  evidence  to  show  a  mortgage,  288. 
record  of  assignment  not  notice  to  mortgagor,  480. 
usury  law  in,  633. 
compound  interest  allowed  in,  650. 
assignment  of  debt  without  mortgage  in,  817. 
entering  satisfaction  of  record,  994. 
redemption  after  foreclosure,  1051,  1324. 
when  right  to  redeem  barred  in,  1145. 
statute  of  limitations,  four  years,  1193. 
mortgage  barred  when  debt  is  barred,  1207. 
statutory  provisions  relating  to  foreclosure,  1324. 

933 


INDEX. 

References  are  to  Sections. 
CALIFORNIA  —  continued. 

strict  foreclosure  in,  1543. 

power  of  sale  mortgages  and  trust  deeds  in,  1725. 
CERTIFICATE  of  purchase  by  officer,  mistake  in,  1051. 

of  witnesses  to  entry  for  foreclosure,  1259,  1260. 

of  mortgagor  to  entry  for  foreclosure,  1261. 
record  of,  1263. 
CESTUI  QUE  TRUST,  suit  of  foreclosure  by,  1384. 

when  should  be  made  parties  to  suit  by  trustee,  1397-1399. 
CHANGES  in  form  of  debt.     (See  Payment,  924-942.) 
COLLATERAL  SECURITY,  assignment  of  mortgage  as,  333,  1592. 

payments  on,  827,  910. 
COLORADO,  nature  of  a  mortgage  in,  21. 

parol  evidence  to  show  a  mortgage,  288  a. 

usury  law  in,  633. 

entering  discharge  of  record,  995. 

redemption  after  foreclosure,  1051,  1325. 

statute  of  limitations,  six  years,  1193. 

statutory  provisions  relating  to  foreclosure,  1325. 

power  of  sale  mortgages  and  trust  deeds  in,  1726. 
COMPENSATION  of  mortgagee  in  possession,  1132,  1133. 
COMPOUND  INTEREST.     (See  Interest.) 
COMPUTATION  of  interest,  655. 

CONDEMNATION  of  land  for  street,  effect  upon  mortgage,  681  a,  708. 
CONDITION,  in  mortgage,  4. 

form  of,  69,  242. 

must  give  reasonable  notice,  70. 

illegal,  249. 

strict  performance  of  revests  title,  887. 

upon  what  breach  the  right  to  foreclose  accrues,  1174-1191. 

of  promptness  of  payment,  1179. 

default  at  election  of  mortgagee,  1182. 

provisions  against  forfeiture,  1184. 

court  will  not  relieve  against  forfeiture,  1185. 

waiver  of  default  of  credit,  1186. 

to  pay  or  save  harmless,  1188. 
CONDITIONAL  SALE  distinguished  from  a  mortgage,  256-281. 

in  equity  the  tendency  is  to  make  the  transaction  a  mortgage,  257. 

intention  is  the  criterion,  258. 

in  doubtful  cases  the  transaction  is  regarded  as  a  mortgage,  258,  279. 

will  be  upheld  when  clearly  intended,  259. 

the  evidence  should  be  clear,  260. 

the  intent  may  appear  by  the  instrument,  261. 

the  purchaser's  rights  are  to  be  regarded,  262. 
934 


INDEX. 

References  are  to  Sections. 

CONDITIONAL  SALE  —  continued. 

character  of  the  transaction  fixed  at  its  inception,  263. 

the  existence  of  a  debt  the  test,  265. 

where  the  contract  is  made  upon  an  application  for  a  loan,  266. 

when  an  existing  debt  is  not  cancelled,  267.         ♦ 

purchase  for  benefit  of  another,  268. 

a  continuing  debt  shows  a  mortgage,  269. 

agreement  that  grantee  may  buy,  270. 

agreement  that  grantee  may  sell,  271. 

when  there  is  no  obligation  for  the  payment  of  any  debt,  272. 

payment  of  interest,  273. 

continued  possession  of  grantor,  274. 

inadequacy  of  price,  275. 

recording  as  a  mortgage,  276. 

intention  may  be  shown  by  parol  evidence,  277. 

slight  circumstances  determine,  278. 

assignment  with  agreement  to  reassign,  280. 
CONFIRMATION  OF  SALE.    (See  Fokeclosuee  Sale,  1^37-1641, 

1670.) 
CONFLICT  OF  LAWS  as  to  usury,  656-663. 
CONNECTICUT,  nature  of  a  mortgage  in,  22. 

parol  evidence  to  show  a  mortgage,  289. 

statutory  provisions  as  to  fixtures,  443. 

usury  in,  633. 

entering  discharge  of  record,  996. 

redemption  after  foreclosure,  1051,  1326. 

statute  of  limitations,  fifteen  years,  1193. 

statutory  provisions  relating  to  foreclosure,  1326. 

strict  foreclosure,  the  usual  form  in,  1544. 

power  of  sale  mortgages  and  trust  deeds  in,  1727. 
CONSIDERATION.     (See  Debt.) 

description  of  in  mortgage,  64. 

mortgage  made  without,  to  raise  money,  86. 

mortgage  without  placed  in  escrow,  87. 

defence  of  want  or  failure  of,  610-616. 

money  consideration  not  necessary,  610. 

affidavit  of,  610. 

none  need  pass  at  time  of  execution,  611. 

misuse  of  proceeds  by  mortgagor's  agent,  612  a. 

implied  from  seal,  613. 

mortgage  by  way  of  gift,  614. 

of  accommodation  mortgage,  615. 

when  mortgagor  estopped  to  deny,  616. 

illegal  avoids  mortgage,  G17. 

935 


INDEX. 

References  are  to  Sections. 

CONSIDERATION  -  continued. 

who  may  take  advantage  of,  619. 
when  it  can  be  separated,  620. 
burden  of  proof  of,  622. 
want  of  in  mortgage  assumed  no  defence,  744. 
of  assignments,  788. 
proof  of,  in  foreclosure  suit,  1470. 
want  of  a  defence  in  foreclosure  suit,  1297,  1490. 
one  buying  subject  to  mortgage  cannot  set  up  want  of,  1491. 
CONSOLIDATING  MORTGAGES,  the  English  doctrine,  1083. 
not  applied  in  America,  1083. 

redemption  of  other  claims  cannot  be  compelled,  1081. 
in  one  foreclosure  suit,  1458. 
CONSTRUCTION,  note  and  mortgage  construed  together,  71. 

principles  of,  101. 
CONTRIBUTION  TO  REDEEM,  1089-1092. 
when  the  right  arises,  1089. 
the  general  rule  respecting,  1090. 
portion  retained  by  mortgagor  first  liable,  1091. 
portions  sold  liable  in  inverse  order,  1092. 
according  to  value  is  rule  where,  1626. 
valuation  to  be  made  of  what  time,  1627. 
sale  not  enjoined  to  allow,  1812. 
CORPORATION,  designation  in  mortgage  to,  63. 
habendum  in  mortgage  to,  67. 
may  make  a  mortgage,  102,  124. 
power  of  alienation  restrained,  124. 
limitation  of  railroad  companies  to  mortgage,  1 25. 
religious,  may  mortgage,  126. 

the  power  to  mortgage  resides  in  the  stockholders,  127. 
continuing  security,  382-384. 
must  use  corporate  seal,  128. 
may  take  mortgages,  134. 

national  banks  restricted  as  to  real  estate  security,  134. 
foreign,  loans  by,  134. 
not  bound  by  notice  to  director  of,  570. 
may  assign  a  mortgage,  798. 
authority  of  treasurer  of  to  assign,  798. 
assignment  by  unincorporated  associations,  799. 
COSTS,  incurred  by  refusal  of  sufficient  tender,  902. 
of  previous  foreclosure  upon  redemption,  1084. 
rule  respecting  in  bill  to  redeem,  886,1  111. 

of  suit  brought  without  previous  tender,  1112. 
when  mortgagee  has  refused  tender,  1113. 
936 


INDEX. 

References  are  to  Sections. 

COSTS  —  continued. 

mortgage  of,  providing  for  continuance  of  default,  for  a  period  of 

time,  1179. 
on  decree  of  strict  foreclosure,  1568. 
of  previous  action  at  law  included  in  decree,  1598. 
In  equitable  suit  for  foreclosure,  1602—1607. 
discretionary  with  court,  1603. 
of  subsequent  incumbrancers,  1604. 
of  defendants  who  appear  and  answer,  1605. 
counsel  fees,  1606. 
stipulation  for  in  mortgage,  1606. 
allowance  for  in  foreclosure  suit,  1606  J. 
of  irregular  attempt  to  foreclose,  1607. 
of  subsequent  mortgagees,  1 908. 
of  sale  under  power,  1923,  1926. 
COUNSEL  FEES.     (See  Attorney.) 
COUPONS  for  interest,  653. 

draw  interest  after  maturity,  1141. 
COVENANT,  in  mortgage,  68,  1225. 
importance  of,  68. 
for  payment  of  the  debt,  72,  1225. 
for  payment  of  taxes,  77. 
of  mortgagor  to  pay  debt,  none  implied,  678. 
implied  in  assignment,  831. 
in  purchase-money  mortgages,  1501-1505. 
CREDIT,  foreclosure  sale  on,  1615. 

on  sale  under  power,  1868-1872. 
CROPS,  growing,  may  be  mortgaged,  150. 
not  sown,  how  mortgaged,  151. 
registry  laws  apply  to  mortgage  of,  486. 
mortgagor  in  possession  entitled  to,  697. 
mortgagee  taking  possession  entitled  to,  697. 
mortgagee  entering  may  appropriate,  1116. 
purchaser  at  foreclosure  suit  entitled  to,  1658. 

DAMAGES  for  land  taken  by  the  right  of  eminent  domain,  681  a,  708. 

for  injury  to  mortgaged  property,  695. 

measure  of  for  breach  of  agreement  to  pay  a  mortgage,  770. 
DATE  not  essential,  89. 

DEATH  of  mortgagor,  no  proof  against  his  estate  required,  1222. 
after  decree,  1584. 

of  plaintiff  after  decree,  1585. 
DEBT.     (See  Consideration.) 

secured,  description  of,  70,  343-395. 

937 


INDEX. 

References  are  to  Sections. 
DEBT  —  continued. 

requisites  of  description,  70. 

note  and  mortgage  construed  together,  71. 

covenants  to  pay,  72,  1225. 

time  of  payment  of,  75. 

provision  that  whole  shall  become  due  on  any  default,  76. 

on  default  in  payment  of  taxes,  77. 

on  default  in  payment  of  insurance  premium,  78. 
general  description  sufficient,  343. 
amount  of  ascertained  debt  should  be  stated,  344. 
must  come  fairly  within  terms  used,  345. 
unliquidated,  346. 
antecedent,  347. 

when  mortgage  is  larger  than,  348. 
description  of  note,  349. 

not  necessary  to  give  all  particulars  of,  350. 
notes  are  evidence  of  amount  of,  351. 
parol  evidence  to  identify  note,  352. 
mistakes  in  description  of,  354. 
several  mortgages  securing  one  debt,  356. 
enlarging  terms  of  mortgage,  357. 
taxes  and  assessments,  358. 
solicitor's  fee,  359. 
tacking  other  debts,  360. 
increasing  rate  of  interest,  361. 
a  further  debt  secured,  363. 
future  advances,  364-378. 
indemnity,  379-388. 
general  description  sufficient,  579. 
recital  of  in  mortgage,  677. 
no  covenant  of  implied,  678. 
barred  by  statute,  lien  may  be  enforced,  1204. 
remedy  for  debt  and  upon  lien  concurrent,  1215-1220. 
foreclosure  suit  no  bar  to  suit  for  debt,  1222,  1223. 
personal  remedy  excluded  when,  1226. 
personal  remedy  after  foreclosure,  1227. 
description  of,  must  be  set  out  in  bill  to  foreclose,  1466. 
DECREE  in  suit  to  redeem,  1106. 

should  fix  time  for  redemption,  1107. 

failure  to  pay,  works  foreclosure,  1108. 
in  suit  for  strict  foreclosure,  1561,  1569,  1572. 
Of  sale,  1571-1607. 

by  court  of  equity  without  the  aid  of  statute,  1573. 
Form  and  requisites  of,  1574-1586. 
938 


INDEX. 

References  are  to  Sections. 
DECREE  —  continued. 

may  follow  terms  of  mortgage,  157/). 
should  provide  order  of  sale,  1576. 
where  only  part  of  debt  is  due,  1577. 
of  sale  subject  to  part  of  debt  not  due,  1577. 
for  only  the  relief  sought  for,  1578. 
should  protect  other  interests,  1579. 
when  junior  mortgagee  forecloses,  1580. 
after-acquired  title  when  covered,  1581. 
debt  not  apportioned  between  co-tenants,  1582. 
one  decree  for  entire  debt,  1583. 
where  there  are  two  mortgages.  1583. 
death  of  mortgagor  as  affecting,  1584. 
death  of  plaintiff  as  affecting,  1585. 
no  time  for  redemption  allowed,  1586. 
Conclusiveness  of,  1587-1589. 

cannot  be  attacked  collaterally,  1587. 
while  unreversed,  1588. 
prior  and  adverse  rights  not  affected,  1589. 
prior   mortgage   not   affected   by  decree   on  junior   mortgage, 
1589  a. 
Amount  of,  1590-1601. 

should  be  fixed,  1590. 
when  part  not  due,  1591. 
when  mortgage  held  as  collateral,  1592. 
may  exceed  penalty  of  bond,  1593. 
interest,  1594. 
exchange,  1595. 
insurance,  1596. 
taxes,  1597. 

costs  of  previous  action  to  foreclose,  1598. 
disbursements  by  plaintiff,  1599. 
final,  when,  1600. 

no  stay  of  on  account  of  controversy  between  subsequent  incum- 
brancers, 1601. 
costs,  1602-1607. 
DEED,  and  passing  of  title  under  foreclosure  sale,  1652. 
delivery  of  deed,  1653. 

title  relates  back  to  execution  of  mortgage,  1654. 
errors  in  deed,  1655. 
certificate  of  purchase,  1661. 
Under  power  of  sale,  1889-1903. 

holder  of  legal  title  should  make  deed,  1889. 
married  woman  may  make  deed,  1890. 

939 


INDEX. 

References  are  to  Sections. 
DEED  —  co7itinued. 

mortgagee  may  make  deed  to  himself,  1892. 

title  passes  by  delivery  of,  1894. 

not  evidence  of  recitals  in  it,  1895. 
DEED  OF  TRUST,  legal  effect  of,  62. 

omission  of  words  of  importance  in,  67. 
to  secure  beneficiaries  described  but  not  named,  135, 
to  secure  all  creditors  of  the  grantor,  how  enforced,  1448. 
is  a  mortgage  in  legal  effect,  1769. 
often  preferred  to  mortgage,  1770. 
trustee  is  agent  of  both  parties,  1771. 
debt  belongs  to  beneficiary,  1772. 
when  court  will  appoint  new  trustee,  1774. 
when  court  executes  the  power,  sale  is  by  virtue  of  that,  1775. 
when  debt  is  unliquidated,  1776, 
acceptance  of  trust,  1780. 
cannot  be  assigned  without  authority,  1788. 
to  two  or  more  must  be  executed  by  all,  1790. 
insolvency  of  trustee  no  ground  for  enjoining,  1816. 
trustee  should  be  personally  present  at  sale,  1862. 
trustee  buying  at  sale  under  power,  1880. 
sale  under  must  be  fairly  executed,  1906. 
DEFAULT  in  payment  of  interest,  1176,  1177. 
at  election  of  mortgagee,  1182. 
of  credit,  waiver  of,  1186. 
meaning  of  term,  1191. 
DEFEASANCE,  essential  to  a  mortgage,  241. 
form  of,  69,  242. 
separate  instrument  of,  241. 
must  be  to  grantor,  not  to  a  third  person,  241. 
separate,  objections  to,  243. 

and  deed  constitute  a  mortgage,  244. 
when  part  of  one  transaction,  245. 
when  delivered  at  same  time,  246. 

delivered  as  an  escrow,  247. 

not  a  mortgage  at  law  if  debt  not  shown,  247  a. 
•  parol  evidence  to  connect  with  deed,  248. 

illegal  condition,  249. 

when  once  established  gives  right  of  redemption,  250. 

gi'antee  cannot  renounce  redemption  beforehand,  251. 

cancellation  of,  252. 

substitution  of  new  defeasance,  252. 

recording  of,  253,  513. 

when  not  recorded  grantee  may  convey  good  title,  514. 
940 


INDEX. 

References  are  to  Sections. 
DEFEASANCE  -  continued. 

surrender  of,  928,  977. 
DEFECT  in  title  excuses  purchaser  when,  1645,  1646. 
DEFENCES,  to  bill  to  redeem,  1105. 

to  writ  of  entry  to  foreclose,  1296-1305. 

to  bill  in  equity  for  foreclosure,  1479-1515. 
DEFICIENCY  after  foreclosure,  liability  of  married  woman  for.  111,  1718. 

suit  at  law  for,  after  sale  under  power,  1227. 

suit  at  law  for,  after  foreclosure  sale,  1228. 

personal  judgment  for,  must  be  asked  for,  1477. 

judgment  for,  in  equitable  suit,  1709-1721. 

statutory  provisions  in  several  States,  1709. 

is  for  balance  of  debt,  1709  a. 

deficiency  must  be  ascertained  by  sale,  1709  b. 

third  persons  liable  may  be  joined,  1710. 

court  of  equity  cannot  give  judgment  without  aid  of  statute,  1711. 

one  who  has  bought  subject  to  the  debt  not  liable  for,  1712. 

when  purchaser  is  bound  to  pay  the  debt,  1713. 

though  conveyance  be  merely  for  security,  1714. 

when  there  is  no  bond  or  note,  1715. 

no  judgment  for  against  non-resident,  1716. 

no  judgment  against  administrator,  1717. 

no  judgment  against  wife  except  for  her  own  debt,  1718. 

no  judgment  for  parts  of  debt  not  due,  1719. 

unpaid  taxes  should  be  deducted,  1719  a. 

when  judgment  for  becomes  a  lien,  1720. 

personal  remedy  may  be  enforced  without  foreclosure,  1721. 
DELAY,  in  redeeming  after  foreclosure  sale,  1054,  1161  a. 

in  setting  aside  irregular  foreclosure  sale,  1674. 

in  setting  aside  irregular  sale  under  power,  1922. 
DELAWARE,  nature  of  a  mortgage  in,  24. 

usury  in,  633. 

entering  satisfaction  of  record,  998. 

no  redemption  after  foreclosure,  1051,  1328. 

statute  of  limitations,  twenty  years,  1193. 

statutory  provisions  relating  to  foreclosure,  1328. 

power  of  sale  mortgages  and  trust  deeds  in,  1729. 
DELIVERY  of  mortgage  essential,  84,  85,  501. 

of  mortgage  made  for  purpose  of  sale,  86. 

in  escrow,  87. 

registration  does  not  operate  as,  501. 

to  an  agent,  501. 

after  recording,  502. 

to  a  stranger,  502. 

941 


INDEX. 

References  are  to  Sections. 

DELIVERY  —  continued. 

presumption  as  to,  502. 
subsequent,  when  becomes  operative,  503. 
essential  to  assignment,  790. 
DEPOSIT  o£  money  required  on  foreclosure  sale.  1614. 
forfeiture  of,  1644. 
at  sale  under  power,  1866. 
DEPOSIT  OF  TITLE  DEEDS,  an  equitable  mortgage,  179-188. 
DESCRIPTION,  of  the  parties,  63. 
of  the  debt.     (See  Debt.) 
Of  the  premises,  what  is  requisite,  65,  489. 
uncertainty  in,  66. 
apparent  error  in,  490. 
must  be  set  out  in  bill  to  foreclose,  1462. 
in  the  decree  of  sale,  1574, 
of  property  in  notice  of  sale,  1840. 
DESTRUCTION  of  record  of  mortgage,  526. 
DEVISEE  should  redeem  when,  1062. 
may  mortgage  his  interest,  136. 
necessary  party  defendant  to  foreclosure  suit,  1418. 
DISABILITIES  of  insanity,  infancy,  etc.,  103-105. 
none  to  prevent  the  taking  of  a  mortgage,  131. 
DISBURSEMENTS  by  mortgagee  in  possession,  1134-1138. 

by  plaintiff  in  foreclosure  proceedings,  1599. 
DISCHARGE,  mortgagee  cannot  make  after  assignment,  814. 
operates  as  an  assignment  when,  858. 
when  payment  operates  as,  888,  889. 
who  may  make,  956-965. 
owner  of  debt  should  make,  956. 
when  made  by  person  other  than  mortgagee,  957. 
when  mortgage"  is  held  by  two  or  more  jointly,  958. 
one  of  two  executors  may  make,  959. 
one  of  two  trustees  cannot  make,  959. 
by  one  holding  mortgage  as  "  trustee,"  959. 
whether  foreign  executor  can  make,  960. 
assignee  may  make,  961. 
assignee  holding  as  collateral  may  make,  963. 
obtained  through  fraud  or  made  by  mistake,  966. 
induced  by  mortgagor's  fraudulent  representations,  966  a. 
entered  without  fraud  or  mistake,  966  &. 
fraudulent,  is  not  payment,  967. 

personal  judgment  when  mortgage  cannot  be  reinstated,  968. 
when  made  through  mistake  of  fact  may  be  cancelled,  969. 
when  assignment  was  intended,  970. 
942 


INDEX. 

References  are  to  Sections. 
DISCHARGE  -  continued. 

mortgage  substituted  in  ignorance  of  an  intervening  lien,  971. 
prior  mortgagee  cannot  be  compelled  to  repay,  971  a. 
Form  and  construction  of  discharge,  972-988. 

mode  of  effecting,  972. 

deed  of  release  or  quitclaim,  972. 

after  payment,  mortgagee  trustee  of  legal  title,  973. 

where  mortsfage  is  resrarded  as  a  mere  lien,  974. 

bequest  of  a  mortgage  to  the  mortgagor,  974  a. 

in  case  of  a  mortgage  of  indemnity,  975. 

whether  a  general  release  discharges  mortgage,  976. 

by  foreclosure  of  prior  mortgage,  978. 

verbal  agreement  to  release,  979. 

may  be  limited  in  its  operation,  980. 

of  a  portion  of  the  mortgaged  premises,  981. 

effect  of  release  of  personal  liability  of  mortgagor,  983. 

release  of  security  does  not  necessarily  release  debt,  984. 

effect  of  upon  title  of  person  to  whom  it  is  made,  985. 

through  representations  or  conduct  of  mortgagee,  986. 

wrongfully  obtained,  987. 

debtor  should  tender  the  instrument,  988. 

bill  in  equity  to  compel  cancellation  of  paid  mortgage,  988  a. 
Entry  of  record,  989-991. 

penalty  for  neglecting  to  make,  990. 

when  holder  of  mortgage  liable  to  penalty,  991. 
Statutory  provisions  for  entering  in  the  several  States,  992-1037. 
defence  of  must  be  clearly  set  up,  1512. 
DISSEISIN  of  mortgagee  by  mortgagor,  703,  1211. 

what  constitutes,  1211  a. 
of  mortgagee  prevents  a  valid  assignment,  789. 
DISTRICT  OF  COLUMBIA,  registration  in,  488. 
usury  in,  633. 

entering  satisfaction  of  record,  999. 
statutory  provisions  relating  to  foreclosure,  1329. 
power  of  sale  mortgages  and  trust  deeds  in,  1730. 
DOWER,  fraudulent  release  of  after  execution,  95. 
exoneration  of  wife's  inchoate  right,  114. 
dower  interest  may  be  mortgaged,  136. 
purchase-money  mortgage  not  subject  to,  464. 
mortgagor's  widow  entitled  to,  666. 
principle  of  merger  as  applied  to,  666,  866,  867. 
gives  right  to  redeem  mortgage,  1067. 

when  mortgagor's  wife  made  party  to  foreclosure  suit,  1420,  1421 
in  surplus  proceeds  of  foreclosure  sale,  1693,  1694. 

943 


INDEX. 

References  are  to  Sections. 
DOWER  —  continued. 

in  surplus  proceeds  of  sale  under  power,  1933. 
DURESS  avoids  mortgage  obtained  by,  626. 

iu  obtaining  wife's  acknowledgment  to  deed,  538. 

EARNINGS  of  railroad  may  be  mortgaged,  160. 
EJECTMENT,  mortgagor  cannot  maintain  against  mortgagee,  674. 

mortgagee  may  recover  possession  by,  719. 
ELECTION  of  mortgagee  to  consider  mortgage  due,  1182. 
EMBLEMENTS,  mortgagor's  right  to  until  possession  takeu,  697. 

ceases  when  he  surrenders  possession,  697. 

niortgagee  may  waive  right  to,  698. 

mortgagor's  tenant  has  no  right  to  against  mortgagee,  780. 

purchaser  under  foreclosure  sale  entitled  to,  1658. 
EMINENT  DOMAIN,  damages  for  land  taken  by,  681,  681  a,  708. 
ENFORCEMENT  of  mortgage,  when  right  of  accrues,  1174-1191. 

remedies  for,  1215-1236. 

of  foreclosure  sale  against  purchaser,  1642-1651. 
ENTRY  to  foreclose  mortgage,  1246-1257. 
ENTRY  AND  POSSESSION.     (See  Foreclosure  by.) 
EQUITABLE  ASSIGNMENT  of  mortgage,  813-822. 
EQUITABLE  MORTGAGE,  various  kinds  of,  162-188. 

by  agreement  to  give  a  mortgage,  163. 

by  parol  agreement,  164. 

by  entry  of  agreement  on  records  of  company,  165. 

by  informal  deeds,  166,  168. 

by  deed  defectively  executed,  169. 

by  implied  trust,  170. 

by  an  assignment  of  rents,  171. 

by  assignment  of  contract  of  sale,  172,  173. 
although  conditional,  174. 
or  a  partial  interest,  175. 

by  assignment  of  certificate  of  public  land,  176. 

by  preemptor  of  public  land,  177. 

by  deposit  of  title  deeds,  179. 

how  enforced,  188. 

within  the  recording  acts,  476. 

for  precedent  debt,  477. 
EQUITY  OF  REDEMPTION,  growth  of  the  doctrine  of,  6. 

an  estate  in  the  land,  6. 

when  first  established,  7. 

what  it  is,  8. 

mortgagee  may  purchase,  711. 
ESCROW,  delivery  in,  87. 
944 


INDEX. 

References  are  to  Sections. 
ESTATE  TAIL,  may  be  the  subject  of  a  mortgage,  137. 
ESTOPPEL  of  mortgagor  iu  the  case  of  irregular  filling  of  deed.  92. 
when  it  may  be  set  up  in  such  case,  93. 
of  owner  by  mortgage  of  third  person,  138  a. 
grantor  by  absolute  deed  may  show  true  character  of,  323. 
to  deny  consideration,  616. 
to  claim  invalidity  of  mortgage,  631. 
to  claim  it  was  made  to  defraud  a  creditor,  632. 
to  set  up  defence  of  usury,  by  certificate,  645. 
to  deny  his  title,  682,  1483. 
to  deny  validity  of  mortgage,  683,  1482. 
of  mortgagee  to  assert  his  mortgage,  734. 
of  assignee  to  claim  a  merger,  853. 
of  purchaser  to  claim  merger,  854. 
of  mortgagor  to  redeem,  1049. 
of  mortgagee  to  foreclose,  1189. 
of  mortgagor  to  deny  his  title,  1483. 

by  his  declaration  or  agreements  to  take  defences,  1484. 
of  purchaser  subject  to  mortgage  to  set  up  usury,  1494. 
EXCHANGE,  payment  of  not  usurious,  637. 

not  allowed  on  mortgage  debt,  1595. 
EXECUTION  OF  MORTGAGE,  81-99,  527-541. 

proof  of,  1455. 
EXECUTION  SALE  of  equity  of  redemption,  effect  of,  665. 
of  mortgagee's  interest,  701. 
of  mortgaged  premises  for  same  debt,  1229. 
may  be  made  of  other  land,  1230. 
EXECUTORS,  mortgages  by,  102,  102  a. 
assignments  by,  796, 
foreign  assignments  by,  797. 
paying  mortgage  by  accounting,  919-923, 
purchasing  mortgage  on  estate  of  deceased,  921. 
mortgagee  administering  mortgagor's  estate,  922. 
one  of  two  executors,  etc.,  may  discharge,  959. 
whether  foreign  executor,  etc,  may  discharge,  960. 
may  maintain  writ  of  entry  to  foreclose,  1288, 
proper  parties  to  maintain  equitable  suit  for  foreclosure,  1388. 
foreign,  cannot  maintain  foreclosure  suit,  1389, 
mortgage  to,  how  foreclosed,  1390. 
of  mortgagee,  may  exercise  power,  1786. 
EXONERATION  from  mortgage  debt  in  favor  of  heir,  751. 
li:XTENS10N  of  mortgage  by  husband  in  behalf  of  wife,  115. 
makes  a  valuable  consideration,  461,  649. 
agreement  for  should  be  recorded,  532. 
VOL,  II.  60  945 


INDEX. 

References  are  to  Sections. 

EXTENSION  -  continued. 

usury  paid  for  to  be  credited,  648. 

when  agreement  for  is  void  on  account  of  usury,  649. 

by  purchaser,  when  it  discharges  the  mortgagor,  742. 

when  it  does  not  impair  security,  942.. 

extends  right  of  redemption,  1053. 

estops  mortgagee  to  foreclose,  1189,  1190. 

a  consideration  necessary  to  support,  1190. 

by  parol  agreement,  1191. 

effect  of  upon  homestead  right,  1106. 

FINAL  DECREE,  what  is  a,  1600. 

FIXTURES,  severed  from  realty,  whether  personal  property,  144. 

what  are  covered  by  mortgage,  428. 

building  erected  on  land  without  consent,  428. 

intention  largely  determines,  429. 

a  mixed  question  of  law  and  fact,  429. 

enumeration  of  some  excludes  others,  430. 

mortgaged  before  attached  to  realty,  431. 

by  agreement,  character  of  personalty  impressed,  431  a. 

hired,  not  subject  to  mortgage,  432. 

buildings  erected  on  mortgaged  land,  433. 

in  and  about  a  house,  433  a. 

trees  and  shrubs  in  a  nursery,  434. 

annexed  before  mortgage,  434. 

annexed  after  mortgage,  436. 

by  agreement,  character  of  personalty  retained,  436  a. 

under  an  equitable  mortgage,  437. 

agreement  of  parties  as  affecting  rule,  438. 

annexed  by  tenant  of  mortgagor,  439. 
lessee's  surrender  of  term,  440. 

rule  as  to  trade  fixtures  not  applicable,  441. 

rule  in  Vermont  exceptional  as  to,  442. 

statutory  provisions  in  Vermont  and  Connecticut,  443. 

in  mill,  rule  of  intention  respecting,  444. 

mortgage  of  realty  preferred  to  one  of  fixtures,  445. 

steam  engine  and  boiler,  446. 

shingle  machine,  447. 

looms  in  mills,  448. 

cotton  looms,  449. 

machinery  of  silk-mill,  450. 

rolls  of  iron-mill,  451. 

rolling  stock  of  railways,  452. 

remedies  for  removal  of,  453,  695. 
946 


INDEX. 

References  are  to  Sections. 
FIXTURES  —  continued. 

action  for  damages  for  removal  of,  454,  695. 

by  mortgagee  not  in  possession,  455. 
pass  to  purchaser  under  foreclosure  sale,  1657. 
FLORIDA,  nature  of  a  mortgage  in,  25. 
vendor's  lien  adopted  in,  191. 
parol  evidence  to  show  a  mortgage,  291. 
usury  in,  633. 

entering  satisfaction  of  record,  1000. 
no  redemption  after  foreclosure,  1051,  1330. 
statute  of  limitations,  twenty  years,  1193. 
statutory  provisions  relating  to  foreclosure,  1330. 
power  of  sale  mortgages  and  trust  deeds  in,  1731. 
FORCIBLE  ENTRY  AND  DETAINER,  not  applicable  to  recovery  of 

possession  by  mortgagee,  720. 
FORECLOSURE,  opened  by  accepting  payments  on  debt,  949  a. 
does  not  constitute  payment,  950-955. 
strict  foreclosure  is  not  payment,  950. 
by  entry  and  possession  is  payment  joro  tanto  only,  952. 
sale  is  payment />?•£>  tanto,  953. 
sale  under  power  is  payment  joro  tanto,  953. 
redemption  after  imperfect,  1048. 
redemption  after  foreclosure  of  part,  1074. 
redemption  after  sale  under,  1051,  1075.        ' 
results  from  failure  to  redeem  according  to  decree,  1108. 
and  redemption  reciprocal,  1146. 
When  the  right  of  action  accrues,  1174—1191,  1289. 

upon  what  breaches  of  condition  it  accrues,  1175. 
default  in  payment  of  interest,  1176. 
when  whole  debt  becomes  due,  1177. 
when  default  in  interest  not  enough,  1178. 
promptness  of  payment  a  condition,  1179. 
whole  debt  due  on  any  default,  1180,  1181. 
default  at  election  of  mortgagee,  1182. 
who  may  take  advantage  of  default,  1183. 
provisions  against  forfeiture,  1184. 
court  will  not  relieve  from  default,  1185. 
waiver  of  default,  1186. 
guarantor  must  pay  principal  debt,  1187. 
when  condition  is  to  pay  or  save  harmless,  1188. 
mortgagee  estopped  by  agreement,  1189. 
when  time  of  payment  is  extended,  1190. 
by  parol,  1191. 

947 


INDEX. 

References  are  to  Sections. 
FORECLOSURE  —  continued. 

When  the  right  of  is  barred,  1192-1214. 

statute  of  limitations  applies  by  analogy,  1192. 
tendency  to  shorten  period  of  limitation,  1193. 
periods  of  limitation  in  the  several  States,  1193. 
presumption  of  payment  not  conclusive,  1196. 
presumption  of  payment  repelled  by  circumstances,  1197. 
payment  of  interest  renews,  1198. 

by  one  tenant  in  common,  1199. 
payment  of  taxes,  1200. 

purchaser  assuming  payment  recognizes  mortgage,  1201. 
purchaser  has  no  greater  rights  than  mortgagor,  1202. 
mortgage  lien  enforced  though  the  debt  is  barred,  1204. 

rule  otherwise  in  what  States,  1207. 
statute  runs  from  time  the  right  of  action  accrues,  1210. 
not  waived  by  the  recovery  of  judgment  for  debt,  1218. 
Statutory  provisions  of  the  several  States  relating  to,  1317-1366. 
the  statutes  generally,  1317. 
codes  of  procedure,  1318. 
by  special  statute  not  allowed,  1320. 
law  in  force  when  mortgage  was  made  governs,  1321. 
Alabama,  1322. 
Arizona  T.,  1322  a. 
Arkansas,*  1323. 
California,  1324. 
Colorado,  1325. 
Connecticut,  1326. 
Delaware,  1328. 
District  of  Columbia,  1329. 
Florida,  1330. 
Georgia,  1331. 
Idaho,  1332. 
Illinois,  1333. 
Indiana,  1334. 
Iowa,  1335. 
Kansas,  1336. 
Kentucky,  1337. 
Louisiana,  1338. 
Maine,  1339. 
Maryland,  1340. 
Massachusetts,  1341. 
Michigan,  1342. 
Minnesota,  1343. 
Mississippi,  1344. 
948 


INDEX. 

References  are  to  Sections. 

FORECLOSURE  —  continued. 

Missouri,  1345. 

Montana,  1346. 

Nebraska,  1347. 

Nevada,  1348. 

New  Hampshire,  1349. 

New  Jersey,  1350. 

New  York,  1351. 

North  Carolina,  1352. 

North  Dakota,  1352  a. 

Ohio,  1353. 

Oregon,  1354. 

Pennsylvania,  1355. 

Rhode  Island,  1356. 

South  Carolina,  1357. 

South  Dakota,  1357  a. 

Tennessee,  1358. 

Texas,  1359. 

Utah  T.,  1360. 

Vermont,  1361.  ^ 

Virginia,  1362. 

Washington,  1363. 

West  Virginia,  1364. 

Wisconsin,  1365. 

Wyoming,  1366. 
FORECLOSURE  BY  ENTRY  AND  POSSESSION,  1237-1267. 
is  payment  joro  tanto  of  mortgage  debt,  952. 
nature  of  the  remedy,  1237. 
where  used,  1238. 
statutory  provisions  in  Maine,  1239. 

foreclosure  by  advertisement,  1240. 
statutory  provisions  in  New  Hampshire,  1241. 

when  mortgagee  is  in  possession,  1242. 

provisions  of  statute  to  be  strictly  followed,  1243. 
statutory  provisions  in  Massachusetts,  1244. 
statutory  provisions  in  Rhode  Island,  1245. 
The  entry,  V2A^-\2bl . 

should  be  by  holder  of  legal  title,  1247. 

by  executor,  etc.,  of  mortgagee,  1248. 

foreclosure  of  part  of  the  premises,  1249. 

assignment  of,  1250. 

by  second  mortgagee,  1251. 

by  married  woman,  1252. 

may  be  made  at  any  time  after  breach,  1253. 

949 


INDEX. 

References  are  to  Sections. 
FORECLOSURE  BY  ENTRY  AND  FOSSES^IO'^  —  continued. 
upon  a  part  of  the  land,  1254. 
manner  of  making,  1255. 
what  is  peaceable,  1256. 
what  is  open,  1257. 
The  possession,  1 258. 

constructive  only,  1258. 
The  certificate  of  witnesses,  1259,  1260. 
what  it  must  state,  1259. 
is  conclusive,  1260. 
the  certificate  of  mortgagor,  1261. 
when  the  limitation  of  three  years  commences,  1262. 
record  of  the  certificate,  1263. 

effect  of  the  foreclosure  upon  the  mortgage  debt,  1264. 
Waiver  of  entry  and  possession,  1265-1275,  1569. 
by  express  or  implied  agreement,  1265. 
assignment  of  mortgage  after  entry,  1266. 
waiver  must  be  by  holder  of  mortgage,  1267. 
previous  purchase  under  power  not  waived  by  entry,  1268. 
payment  is  a  waiver,  1269. 

when  the  intention  of  the  parties  is  doubtful,  1270. 
rendering  account,  1271. 
conditional  waiver,  1272. 
writ  of  entry  no  waiver,  1273,  1286. 
recovery  of  judgment  for  debt  opens,  1274. 
relief  in  case  of  accident  or  mistake,  1275. 
FORECLOSURE  BY  WRIT  OF  ENTRY,  1276-1316. 
nature  of  process  and  where  used,  1276-1279. 
Who  may  maintain,  1280-1289. 

a  legal  interest  essential,  1280. 
after  assignment,  1281. 
after  assignment  as  collateral,  1282. 
joint  mortgagees  or  assignees,  1283. 
two  mortgages  held  by  one  person,  1284. 
junior  mortgagee,  1285. 

existence  of  homestead  no  objection  to,  1286. 
prior  entry  to  foreclosure  no  objection  to,  1287. 
executor  or  administrator  of  mortgagee,  1288. 
when  right  of  action  accrues,  1289. 
Against  whom  the  action  may  be  brought,  1290—1292. 
the  tenant  of  the  freehold,  1290. 
the  wife  of  the  mortgagor,  1291. 

mortgagor  may  be  joined  after  he  has  conveyed  equity,  1292. 
Pleadings  and  evidence,  1293-1295. 
950 


INDEX. 

References  are  to  Sections. 
FORECLOSURE  BY  WRIT  OF  ENTRY  -  continued. 

the  declaration,  1293. 

answer,  12 'J  4. 

evidence,  1295. 
The  defences,  1296-1305. 

equitable  defences  allowed,  1296. 

want  of  consideration,  1297. 

payment,  12'.»8. 

surrender  obtained  by  fraud,  1299. 

usury,  1300. 

right  of  action  not  accrued,  1301. 

defence  as  to  j^art  of  premises,  1302. 

purchaser  subject  to  mortgage,  1303. 

promise  not  to  enforce,  1304. 

after-acquired  superior  title,  1305. 
The  conditional  judgment,  1306-1315. 

condition  to  pay  within  two  months,  1306. 

action  to  try  title,  1307. 

note  should  be  produced,  1308. 

amount  of  judgment,  1309. 

when  condition  is  not  for  payment  of  money,  1310. 

sums  paid  to  protect  the  estate,  1311. 

in  case  of  an  indemnity  mortgage,  1312. 

set-off,  when  allowed,  1313. 

in  case  of  joint  tenants,  1314. 

when  nothing  is  due,  1315. 

judgment  may  be  assigned,  1316. 
FORECLOSURE  BY  EQUITABLE  SUIT. 

parties  to,  1367-1442.     (See  Parties,  Etc.) 
jurisdiction  and  object  of  suit,  1443-1450. 

courts  of  equity  have  inherent  jurisdiction  of,  1443. 

venue,  1444. 

claim  of  paramount  title  cannot  be  tried,  1445. 

right  of  mortgagee  to  remove  building  determined,  1446. 

stay  of  proceedings  when  process  improperly  used,  1447. 

trust  deed  for  grantor's  creditors  enforced  in  equity,  1448. 

title  bond  may  be  foreclosed  in  equity,  1449. 

tender  of  payment  not  accepted  does  not  prevent  suit,  1450. 
The  bill  or  complaint,  1451-1478. 

general  principles,  1451. 

general  requisites  of  complaint,  1452. 

facts  not  inconsistent  with  bill  may  be  proved,  1453. 

what  allegation  of  execution  and  delivery  suiBcient,  1454. 

proof  of  execution,  1455. 

951 


INDEX. 

References  are  to  Sections. 
FORECLOSURE  BY  EQUITABLE  iiJJIT  —  contmued. 
complainant  must  show  title,  1456. 
assignee's  title,  1457. 

complainant  having  two  mortgages  on  same  premises,  1458. 
foreclosure  for  instalment,  1459. 
bill  by  holder  of  one  of  several  mortgage  notes,  1460. 
when  one  mortgagor  is  not  liable  for  the  debt,  1461. 
description  of  the  property,  1462. 
may  omit  part,  1463. 
reforming  description,  1464. 
after  foreclosure  decree,  1464. 
averment  of  record,  1465. 
description  of  debt,  1466. 
reference  to  determine  amount  of  debt,  1467. 
renewal  of  note  should  be  alleged,  1468. 
proof  of  note,  1469. 
proof  of  consideration,  1470. 

must  show  that  right  of  action  has  accrued,  1471. 
payment  of  indemnity  secured  should  be  alleged,  1472. 
allegation  that  defendant  has  a  subsequent  lien,  1473. 
must  show  that  defendant's  interest  is  subordinate,  1474. 
all  relief  sought  should  be  prayed  for,  1475, 
essential  grounds  of  relief  should  be  set  out,  1476. 
personal  judgment  for  deficiency,  1477. 
when  some  of  the  notes  are  not  due,  1478. 
Answer  and  defence,  1479-1515. 

founded  on  written  instrument  should  be  set  out,  1480. 
denial  of  allegation  must  be  explicit,  1481. 
mortgagee's  title  cannot  be  questioned,  1482. 
mortgagor  estopped  to  deny  his  own  title,  1483. 

by  his  declarations,  etc.,  1484. 
defences  against  assignee,  1485. 
assignee  need  not  have  paid  value,  1486. 
when  assignee  takes  free  from  equities,  1487. 
transfer  of  mortgage  pending  suit,  1488. 
indemnity  mortgage,  1489. 
want  of  consideration,  1490. 

want  of  consideration  in  a  mortgage  assumed,  1491. 
fraud  is  a  good  defence,  1492. 
fraudulent  alteration,  1492  a. 
usury  is  a  defence,  1493. 

usury  set  up  by  purchaser  subject  to  mortgage,  1494. 
mortgagor  may  be  estopped  from  setting  up  usury,  1495. 
set-off,  1496,  1497. 
952 


INDEX. 

References  are  to  Sections. 
FORECLOSURE  BY  EQUITABLE  ^VIT  —  coyitinued. 

what  debt  may  be  set  off,  1498. 

illegal  interest  previously  paid,  1499. 

defence  to  purchase-money  mortgage,  1500. 

defence  of  outstanding  incumbrance  rests  on  covenants,  1501. 

eviction  necessary  before  failure  of  title  will  avail,  1502. 

cases  exceptional  to  rule,  150o. 

breach  of  covenant  of  seisin,  1504. 

breach  of  independent  covenant  no  defence,  1505. 

when  sale  was  effected  by  vendor's  fraud,  1506. 

not  good  against  assignee  of  mortgage  before  due,  1507. 

validity  of  title,  when  a  condition  precedent,  1508. 

statute  of  limitations,  1509. 

insanity  of  mortgagor,  1510. 

recovery  of  judgment  on  mortgage  note  no  defence,  1511. 

defence  of  discharge  must  be  clearly  set  out,  1512. 

agreement  of  parties  subsequent  to  the  mortgage,  1513. 

want  of  service  on  another  defendant,  1514. 

bill  of  interpleader,  1515. 
FORECLOSURE  WITHOUT  SALE,  OR  STRICT  FORECLOSURE. 
(See  Decree  of  Sale,  1571-1607.) 
is  payment  pro  tanto,  590. 

failure  to  pay,  decree  of  redemption  operates  as,  1108. 
nature  and  use  of  this  remedy,  1538-1541,  1572. 
historical,  1538. 
when  proper,  1540. 
in  case  of  land  contract,  1541. 
in  what  States  it  is  used,  1542-1556. 
Pleadings  and  practice,  1557-1568. 

whole  debt  must  be  due,  1557. 

parties  to  the  bill,  1558. 

heirs  of  mortgagee  necessary  parties,  1559. 

pleadings,  15  GO. 

judgment  bars  equity  of  redemption,  1561. 

delivery  of  possession,  1562. 

time  allowed  for  redemption,  1563. 

when  defendant  is  an  infant  heir,  1564. 

time  for  redemption  always  allowed,  1565. 

dismissal  of  bill  to  redeem  works,  1566. 

effect  is  not  to  extinguish  debt,  1567. 

costs,  156H. 
Setting  aside  and  opening,  1569,  1570. 

for  want  of  service  on  defendant,  1570. 

953 


INDEX. 

References  are  to  Sections. 
FORECLOSURE  SALE,  ineffectual,  operates  as  an  assignment,  812. 
irregular,  must  be  taken  advantage  of  when,  1054. 
a  substitute  for  strict  foreclosure,  1571. 
court  of  equity  may  decree  without  aid  of  statute,  1573. 
form  and  requisites  of  decree  for,  1574-1586, 
when  part  only  of  debt  or  interest  only  is  due,  1577. 
conclusiveness  of  decree  for,  1587-1590. 
Mode  and  terms  of  sale,  1608-1615. 

nature  of,  1608. 

what  may  be  sold,  1609. 

when  subsequent  incumbrances  provided  for,  1610. 

when  questions  of  priority  should  be  settled,  1611. 
notice  of,  1612. 

terms  of,  1613. 

deposit  required,  1614. 

on  credit,  1615. 
Sale  in  parcels,  1616-1619. 

may  be  required  by  statute  or  court,  1616. 

when  wishes  of  mortgagor  to  be  followed,  1617. 

when  determined  by  court  or  reference,  1618. 

on  subsequent  default,  1619, 
Order  of  sale,  1620-1632, 

when  mortgagor  lias  made  sales  in  distinct  parcels,  1620. 

rule  of  inverse  order,  1621. 

in  what  States  this  rule  prevails,  1621. 

applies  to  mortgages  as  well  as  sales,  1622. 

when  portions  have  been  sold  under  judgment,  1623. 

record  of  subsequent  deed  not  notice  to  mortgagee,  1624. 

when  the  mortgage  is  made  a  common  charge,  1625. 

contribution  according  to  value,  1626. 

valuation  to  be  made  as  of  what  time,  1627. 

when  other  security  to  be  first  applied,  1628. 

where  mortgagee  has  a  lien  upon  other  property,  1629. 

when  mortgagee  holds  two  mortgages,  1630. 

when  mortgagee  has  released  part  primarily  liable,  1631. 

when  part  of  premises  is  homestead,  1632. 

mortgagor  must  seasonably  assert  this  right,  1632  a. 
Conduct  of  sale,  1633-1636. 

officer  conducting  should  be  present,  1633. 

adjournment,  1634. 

sale  may  be  kt'pt  open,  1635. 

objection  to  mortgagee's  buying,  1636. 

mortgagee  may  generally  purchase,  1636. 
954 


INDEX. 

References  are  to  Sections. 
FORECLOSURE  SALE  -  continued. 
Confirmation  of  sale,  1637-164L 

sale  incomplete  until  confirnaed,  1637. 

usury  not  taken  advantage  of  in  this  way,  1637. 

rests  wholly  in  discretion  of  court,  1638. 

resale  may  be  asked  for  by  whom,  1639. 

court  may  reopen  biddings  before  confirmation,  1640. 

great  inadequacy  of  price  may  be  urged  against,  1641. 
Enforcement  of  sale  against  purchaser,  1642-1  651. 

purchaser  becomes  quasi  party,  1 642. 

performance  enforced  by  attachment,  1643. 

forfeiture  of  deposit,  1644. 

when  there  is  a  defect  in  title,  1645. 

defect  in  title  prior  to  mortgage,  1646. 

purchaser  not  relieved  by  reason  of  his  own  mistake,  1646  a. 

errors  in  decree  or  proceedings,  1647. 

reference  as  to  title,  1648, 

incumbrance  of  taxes,  1649. 

purchaser  may  be  concluded  by  his  conduct,  1650. 

on  what  ground  purchaser  may  refuse  to  complete  sale,  1651. 
Deed,  and  passing  of  title,  1652-1662. 

another  person  may  be  substituted  for  purchaser,  1652. 

delivery  of  deed,  1653. 

title  of  purchaser  relates  back  to  execution  of  mortgage,  1654. 

errors  in  deed,  1655. 

after-acquired  title,  1656. 

fixtures,  1657. 

emblements,  1658. 

rents  accruing,  1659. 

when  mortgagee  purchases,  no  deed  required,  1660. 

purchaser's  certificate  of  purchase,  1661. 

appeal  does  not  affect  sale  already  made,  1662. 
Delivery  of  possession  to  purchaser,  1663-1  667. 

may  be  compelled  by  writ  of  assistance,  1663. 

against  one  who  has  entered  pending  suit,  1664. 

when  person  in  possession  shows  paramount  title,  1665. 

purchaser,  when  entitled  to  order  for  possession,  1666. 

summary  proceedings  do  not  preclude  remedy  by  suit,  1667. 
Setting  aside  of  sale,  1668-1681. 

when  fraudulently  conducted,  1668. 

application  for  resale  must  be  by  party  in  interest,  1669. 

not  for  party  whose  own  misconduct  has  occasioned  irregularity, 
1669  rt. 

after  confirmation,  inadequacy  of  price  not  sufficient,  1670. 

955 


INDEX. 

References  are  to  Sections. 
FORECLOSURE  SAJ.'E  —  continued. 

sale  may  be  set  aside  at  instance  of  mortgagee,  1670  a. 

when  holdei"  of  mortgage  becomes  purchaser,  1671. 

neglect  of  officer  selling,  1672. 

rights  of  purchaser  always  taken  into  account,  1673. 

waived  by  delay,  1674. 

mistake  or  accident,  1675. 

purchaser  may  have  sale  set  aside  for  mistake  in  quantity,  1675  a. 

mortgagor's  absence,  1676. 

insanity  of  mortgagor  ground  for,  1676  a. 

few  bidders,  1677. 

invalid  sale  transfers  mortgage,  1678. 

second  action  to  foreclose,  1679. 

redemption  can  be  had  only  by  satisfying  debt,  1680. 

title  of  purchaser  vacated  when  sale  is  set  aside,  1681. 
Application  of  proceeds  of,  1682-1708. 

according  to  decree  of  court,  1682. 

prior  liens  and  charges  paid  by  mortgagee,  1  683. 

application  of  payment  by  creditors,  1683  a. 
Disposition  of  surplus,  1684-1698. 

usually  paid  into  court,  1684. 

court  may  appoint  referee  to  settle  claims,  1685. 

upon   filing   of    referee's    report   exceptions    may     be   taken, 
1686. 

only  claims  that  are  absolute  liens  can  be  considered,  1687. 

several  liens  discharged  according  to  priority,  1688. 

simultaneous  mortgages,  1689. 

complainant  himself  may  present  claim,  1690. 

equities  of  subsequent  incumbrancers  to  be  regarded,  1691. 

doctrine  of  marshalling  securities  does  not  apply,  1691  a. 

prior  unrecorded  mortgage  preferred  to  judgment,  1692. 

dower  in  surplus,  1693. 

inchoate  right  of  dower,  1694. 

surplus  of  sale  after  death  of  mortgagor,  1695. 

lessee  for  years  not  entitled  to  any  part,  1696. 

attachment  of  proceeds  of  sale,  1697. 

surplus  of  sale  under  junior  mortgage,  1698. 
Priorities  between  holders  of  several  notes,  1699-1707. 

note  first  maturing  to  be  paid  first,  1699. 

of  notes  not  due,  1700. 

whether  priority  of  assignment  gives  priority,  1701. 

parties  may  change  order  of  priority  by  agreement,  1702. 

pro  rata  distribution,  1703. 
when  mortgagor  has  right  of  set-off,  1704. 
956 


INDEX. 

References  are  to  Sections. 
FORECLOSURE  SALE  -  continued. 

rights  of  sureties,  1706. 

costs  of  subsequent  mortgagees,  1708. 
FOREIGN  CORPORATIONS,  loans  by,  134, 
FORFEITURE.     (See  Interest.) 

of  credit  under  mortgage,  1179-1186. 
provision  for  is  not  a  penalty,  1181. 
who  may  take  advantage  of,  1183. 
may  affect  foreclosure  proceedings  only,  1183. 
mortgagor  cannot  take  advantage  of  the  stipulation,  1183  a. 
provisions  against,  1184. 
court  caimot  relieve  from,  1185. 
vraiver  of,  1186. 
FORGERY  of  a  mortgage,  1492  a. 
FORM   OF   COVENANT  in  mortgage  to  pay  debt,  72. 

of  interest  clause  that  whole  debt  shall  be  due  on  any  default,  76. 
of  purchaser's  agreement  to  assume  mortgage,  735. 
of  assignment  of  mortgage  used  in  New  England,  786. 

in  New  York,  786. 

in  Maryland,  786. 
of  discharge  of  mortgage,  972. 

in  Maryland,  1010. 

in  "Wisconsin,  1036. 
of  certificate  by  witnesses  of  mortgagee's  entry,  1260. 
of  certificate  of  mortgagor  of  mortgagee's  entry,  1260. 
FORM   OF    MORTGAGE,  60. 

of  power  of  sale  mortgage,  60. 
statutory  forms  of  mortgage,  61. 
description  of  the  parties,  63. 

designation  of  junior,  63. 

married  woman,  63. 
description  of  consideration,  64. 
FRAUD,  ground  of  constructive  notice,  572. 
as  affecting  priority,  602,  603. 
in  concealing  incumbrance,  602. 

in  inducing  another  to  purchase  the  property  as  unincumbered,  603. 
not  the  same  as  negligence,  603. 
negligence  may  be  evidence  of,  604. 
in  obtaining  mortgage  avoids  it,  624,  968. 
intent  of  on  part  of  mortgagee,  625. 
in  obtaining  mortgage  from  wife,  626. 
as  respects  creditors,  627. 
as  respects  a  particular  creditor,  628. 
in  preference  of  a  creditor,  629. 

957 


INDEX. 

References  are  to  Sections. 

FRAUD  —  continued. 

who  may  take  advantage  of,  630. 

fraudulent  assignment  for  benefit  of  creditors,  630  a. 

mortgagor  may  be  estopped  from  setting  up,  631. 

in  obtaining  discharge  of  mortgage,  966,  967,  1299. 

a  defence  in  foreclosure  suit,  1303,  1492. 
P^URTHER   ADVANCES,  redemption  after,  1079. 
FUTURE   ADVANCES,  mortgage  may  secure,  364-378. 

sanctioned  by  the  common  law,  365. 

statute  requirement  that  amount  be  expressed  in  mortgage,  366. 

description  of  tlie  intended  advances,  367. 

parol  evidence  to  identify,  367  a. 

after  notice  of  subsequent  liens,  368. 

when  mortgagee  is  not  bound  to  make,  369. 

when  obligatory,  mortgage  is  a  lien  from  its  execution,  370. 

the  English  rule,  371. 

mortgage  not  affected  by  the  record  of  subsequent  liens,  372. 

mortgage  to  secure  is  a  conveyance  within  recording  acts,  372. 

mortgage  for  definite  advances  has  priority,  373. 

mortgage  need  not  disclose  that  it  is  for,  374. 

verbal  agreement  for,  sufficient,  375. 

amount  and  times  of  may  be  shown,  376. 

express  limitations  must  be  observed,  377. 

when  only  part  of  the  advances  are  made,  378. 

redemption  of  mortgage  given  to  secure,  1079. 

GAMBLING   CONTRACTS,  619. 
GARNISHMENT,  foreclosure  by,  in  Indiana,  1334. 
GEORGIA,  nature  of  a  mortgage  in,  26. 

written  authority  for  filling  blanks,  90. 

parol  evidence  to  show  a  mortgage,  292. 

mortgage  for  future  advances  in,  366. 

usury  in,  633. 

entering  satisfaction  of  record,  1001. 

no  redemption  after  foreclosure,  1051,  1331. 

statute  of  limitations,  twenty  years,  1193. 

statutory  provisions  relating  to  foreclosure,  1331. 

power  of  sale  mortgages  in,  1732. 
GIFT  of  mortgage,  614,  700. 
GRACE  allowed  on  mortgage  note,  75. 
GROWING   CROPS.     (See  Crops.) 
GUARANTY.     (See  Surety.) 

of  the  mortgage  debt  by  assignor,  824. 

whether  assignment  carries  separate  contract  of,  830. 
958 


INDEX. 

References  are  to  Sections. 
GUARANTY  —  continued. 

gives  no  right  to  foreclose  until  paynaent  of  principal  debt,  1187. 

guarantor  not  proper  party  to  foreclosure  suit,  1432. 
GUARDIAN,  mortgage  by,  102  b. 

may  redeem,  1062. 

ad  litem  for  infant  defendant,  1442. 

HABENDUM,  office  of,  67. 

in  mortgage  to  a  corporation,  67. 
HEIRS  exonerated  from  payment  of  assumed  mortgage,  751. 

of  mortgagee  cannot  make  an  effectual  entry  to  foreclose,  1054. 
HOMESTEAD,  how  barred,  83  a. 

mortgage  of,  void  in  Texas,  83  a. 

incumbered  by  wife's  joining,  83  a. 

subject  to  purchase-money  mortgage,  468. 

release  of  wife  obtained  by  fraud,  626. 

included  with  other  realty  in  mortgage,  731,  1286. 

acknowledgment  of  wife  required  in  some  States,  538. 

sale  under  execution  does  not  affect,  665. 

none  between  discharge  of  old  and  taking  new  mortgage,  927. 

revivor  or  renewal  of  mortgage  as  affecting,  949. 

holder  of  may  redeem,  1067. 

no  defence  to  a  writ  of  entry  to  foreclose  a  mortgage,  1286. 

whether  it  makes  wife  a  necessary  party  to  foreclosure  suit,  1423. 

order  of  sale  as  affectiug,  1632. 

in  surplus  proceeds  of  foreclosure  sale,  1693. 

as  affected  by  judgment  lien  for  deficiency,  1720. 
HUSBAND,  whether  necessary  party  to  foreclose  wife's  mortgage,  1424. 

ICE  cut  by  lessee  before  foreclosure,  697. 
IDAHO,  usury  in,  633. 

compound  interesl  not  allowed  in,  650. 

entry  of  satisfaction  of  record,  1002. 

statute  of  limitations,  five  years,  1193. 

statutory  provisions  relating  to  foreclosure,  1332. 
ILLINOIS,  nature  of  a  mortgage  in,  27. 

written  authority  for  filling  blanks,  90. 

parol  evidence  to  show  a  mortgage,  293. 

usury  in,  633. 

assignment  of  debt  passes  mortgage  in,  817. 

entry  of  satisfaction  of  record,  1003. 

redemption  after  foreclosure,  1051,  1333. 

statute  of  limitations,  ten  years,  1193. 

statutory  provisions  relating  to  foreclosure.  1333. 

959 


INDEX. 

References  are  to  Sections. 
ILLINOIS  —  continued. 

strict  foreclosure  in,  1545. 

power  of  sale  mortgages  and  trust  deeds  in,  1733, 
IMPROVEMENTS,  mor'tgage  of,  146. 

mortgage  covers,  147. 

by  mortgagor  enure  to  mortgagee,  681. 

mortgagor's  tenants  not  allowed  compensation  for,  779. 

by  mortgagee  in  possession,  1126-1131. 

what  he  may  be  allowed  for,  1127,  1128. 
INCOME.     (See  Rents  and  Profits.) 
INDEMNITY,  description  of  in  mortgage,  379. 

general  description  of  sufficient,  380. 

limitations  must  be  observed,  381. 

mortgage  for  a  continuing  security,  382. 

lien  from  time  of  execution,  383. 

evidence  to  fix  amount  secured,  384. 

when  principal  creditor  is  entitled  to  the  security,  385. 

whether  surety  may  release  security,  386. 
not  after  liability  is  fixed,  387. 

mortgage,  assignment  of,  802. 

performance  of  condition  of,  887. 

discharge  of  mortgage  for,  934,  975. 

mortgage  for  covers  successive  renewals,  934. 

when  right  of  action  on  accrues,  1213. 

conditional  judgment  upon  mortgage  for,  1312. 

bill  to  foreclose  mortgage  of,  1472. 

defence  that  mortgage  was  given  for,  1489. 
INDEX,  no  part  of  the  record,  518. 

damages  for  errors  in,  519. 

descriptive,  errors  in,  520. 
INDIANA,  nature  of  a  mortgage  in,  28. 

form  of  mortgage,  61. 

verbal  authority  to  fill  blanks,  90. 

mortgage  by  married  woman,  113. 

parol  evidence  to  show  a  mortgage,  294. 

record  of  assignment  not  notice,  479. 

record  of  assignment  not  notice  to  mortgagor,  480. 

usury  in,  633. 

assignment  of  debt  passes  mortgage,  817. 

entry  of  satisfaction  of  record,  1004. 

redemption  after  foreclosure,  1051,  1334. 

statute  of  limitations,  twenty  years,  1193. 

statutory  provisions  relating  to  foreclosure,  1334. 

power  of  sale  mortgages  and  trust  deeds  in,  1734. 
960 


INDEX. 

References  are  to  Sections. 
INDORSEMENTS  of  payments  are  merely  admissions,  918. 
INDORSER,  failure  to  charge  does  not  affect  mortgage,  941. 
wlien  entitled  to  foreclose  mortgage  to  indemnify,  1187. 
not  proper  party  to  suit  to  foreclose  mortgage,  1434. 
INFANCY,  disability  of,  104,  105. 

as  affecting  a  purchase-money  mortgage,  104. 
ratification  of  mortgage  voidable  for,  105. 
certificate  of  magistrate  that  wife  is  of  age,  500. 
INFANT,  guardian  ad  litem  for,  1442. 
INFORMAL  MORTGAGE,  may  be  good  in  equity,  168. 

executed  in  name  of  agent,  169. 
INJUNCTION  to  restrain  mortgagee  from  doing  injury,  675  h 
against  waste  by  mortgagor,  684. 
not  against  removal  of  timber  cut,  685. 
no  duty  on  part  of  mortgagee  to  obtain,  686. 
against  exercise  of  power  of  sale,  1801-1820. 
INJURY  to  mortgaged  property,  mortgagee's  right  of  action  for,  695. 
INSANITY,  disability  of,  103. 

of  mortgagor,  defence  in  foreclosure  suit,  1510. 
does  not  revoke  power,  1793. 
INSTALMENT,  foreclosure  for,  1459. 
decree  for,  1577,  1591. 

surplus  proceeds  of  sale  applied,  how,  1707,  1937. 
INSURANCE,  condition  to  effect,  78. 
a  contract  of  indemnity,  396. 
interests  covered  by,  397. 

application  for  should  disclose  incumbrance,  399. 
by  mortgagor  for  benefit  of  mortgagee,  400. 
when  no  covenant  to  insure  for  the  benefit  of  mortgagee,  401. 
mortgagee's  equitable  lien  for,  402. 
how  far  others  affected  by,  403. 

valid  against  mortgagor's  assignee  in  bankruptcy,  404. 
statutory  provision  for  in  Maine,  405. 
loss  payable  to  mortgagee,  406. 
equivalent  to  assignment,  407. 
who  may  sue  for,  408. 
mortgagee  must  apply  to  debt,  409,  1136. 

when  debt  not  due,  410. 
insurers  not  subrogated  to  mortgagee's  rights,  411. 
agreement  to  assign  to  insurers,  412. 
acts  of  owner  in  derogation  of  policy,  413. 
subrogation  of  insurers  to  rights  of  mortgagee,  413. 
condition  against  other  insurance,  413  a. 
when  mortgagee  may  charge  for  insurance,  414,  1135,  1596. 
VOL.  n.  Gl  961 


INDEX. 

References  are  to  Sections. 
INSURANCE  —  continued. 

under  a  condition  to  insure,  415. 
when  mortgagee  liable  as  insurer,  416. 
return  premium,  417. 

obtained  by  mortgagee  presumed  to  be  under  mortgage,  418. 
of  mortgagee's  interest,  not  of  the  debt,  419. 
when  insurer  subrogated,  420.  * 

King  v.  State  Mat.  Fire  Ins.  Co.  421. 
mortgage  not  an  alienation,  422. 
unless  by  deed  absolute,  423. 
entry  to  foreclose,  424. 
foreclosure  proceedings,  424  a. 
when  title  becomes  absolute,  425. 
alteration  of  ownership,  426. 
assignment  of  policy  with  consent,  427. 
INTEREST,  form  of  provision  to  pay,  73,  75,  76. 
when  rate  not  named,  74. 
increasing  rate  of,  361. 

on  sum  limited  under  indemnity  mortgage,  380. 
as  shown  by  record,  533. 
rates  of  in  the  several  States,  633. 
compound,  whether  usurious,  650. 

provisions  as  to  in  the  several  States,  650. 
while  agreement  for  is  executory,  651. 
accrued  interest  is  a  debt,  652. 
in  advance  for  an  ordinary  term,  652  a. 
coupons  for,  653,  1141. 
may  be  enforced  as  it  matures,  654. 
computation  of,  655. 

rule  for  where  there  are  partial  payments,  655. 
ceases  from  time  of  sufficient  tender,  899. 
payments  appropriated  to  before  principal,  911. 
no  presumption  of  payment  of,  914. 
taking  new  note  for,  932. 

foreclosure  opened  by  accepting  payment  of,  949  a. 
rate  allowed  in  stating  mortgagee's  account,  1141. 
when  default  in  payment  of  authorizes  foreclosure,  1176-1178. 
payment  of  prevents  running  of  statute  of  limitations,  1198. 
decree  of  sale  should  include,  1594. 
INVERSE    ORDER  of  liability  of  purchasers,  1092. 
an  equitable  rule,  1620. 
where  the  rule  prevails,  1621. 
rule  applies  to  mortgages,  1622. 

record  of  subsequent  deed  not  notice  to  mortgagee,  1 624. 
962 


INDEX. 

References  are  to  Sections. 
I N VERSE   ORDER  —  continued. 

when  mortgage  made  a  common  charge,  1625. 

contribution  according  to  value,  1626. 

valuation  as  of  what  time,  1627. 

mortgagee  having  other  security,  1628,  1629. 

release  of  part  primarily  liable,  1631. 

when  part  of  premises  is  a  Iioraestead,  1632. 
IOWA,  nature  of  a  mortgage  in,  29. 

form  of  mortgage,  61. 

parol  evidence  to  show  a  mortgage,  295. 

usury  in,  633. 

assignment  of  debt  passes  mortgage  in,  817. 

entry  of  satisfaction  of  record,  1005. 

redemption  after  foreclosure,  1051,  1335. 

statute  of  limitations,  ten  years,  1193. 

statutory  provisions  relating  to  foreclosure,  1335. 

strict  foreclosure  not  known  in,  1546. 

power  of  sale  mortgages  and  trust  deeds  in,  1735. 

JOINT   MORTGAGES,  135. 

writ  of  entry  by,  to  foreclose  mortgage,  1283. 

equitable  suit  to  foreclose  by,  1381,  1382. 

parties  to  foreclosure  suit,  1435. 
JUDGMENT,  for  mortgage  debt  does  not  discharge  it,  936. 

for  portion  of  mortgage  debt,  937. 

under  trustee  process  paj^mentjoro  tanto,  938. 

release  of  discharges  debt,  940. 

for  the  mortgage  debt  does  not  waive  the  right  to  foreclose,  121f 

recovery  of  opens  foreclosure,  1274. 

conditional,  in  suit  to  foreclose  by  writ  of  entry,  1306-1316. 

may  be  assigned,  1316. 

on  note  or  bond  no  defence  to  foreclosure  suit,  1511. 

in  foreclosure  suit  when  final,  1600. 
For  deficiency,  1709-1721. 

statutory  provisions  concerning,  1709. 

for  balance  of  debt  after  applying  proceeds  of  sale,  1709  a. 

deficiency  must  be  ascertained  by  sale,  1709  b. 

third  person  may  be  joined,  when,  1710. 

court  of  equity  acting  without  authority  of  statute,  1711. 

if  there  be  no  bond  or  note,  1715. 

against  non-resident,  1716. 

upon  decease  of  mortgagor,  1717. 

personal  judgment  against  wife  erroneous,  1718. 

when  it  becomes  a  lien,  1720. 

963 


INDEX. 

References  are  to  Sections. 
JUDGMENT  CREDITOR,  may  show  absolute  deed  a  mortgage,  337. 

not  a  purchaser  within  the  recording  acts,  462. 

mortgagee  has  priority  of,  when,  463,  464,  465. 

notice  of  unrecorded  mortgage,  557. 

may  redeem  mortgage,  1069. 

proper  party  to  foreclosure  suit,  1436. 
JURISDICTION  of  suits  to  foreclose  mortgages,  1443. 

KANSAS,  nature  of  a  mortgage  in,  30. 

written  authority  to  fill  blanks,  90. 

parol  evidence  to  show  a  mortgage,  296. 

record  of  assignment  not  notice  to  mortgagor,  480. 

entry  of  satisfaction  of  record,  1006. 

no  redemption  after  foreclosure,  1051,  1336. 

statute  of  limitations,  fifteen  years,  1193,  1207. 

statutory  provisions  relating  to  foreclosure,  1336. 

power  of  sale  mortgages  and  trust  deeds  iu,  1736. 
KENTUCKY,  nature  of  a  mortgage  in,  31. 

written  authority  to  fill  blanks,  90. 

mortgage  by  married  woman,  113. 

parol  evidence  to  show  a  mortgage,  297. 

usury  in,  633. 

assignment  of  debt  passes  mortgage  in,  817. 

entry  of  satisfaction  of  record,  1007. 

no  redemption  after  foreclosure,  1051,  1337. 

when  right  to  redeem  barred  in,  1145. 

statute  of  limitations,  fifteen  years,  1193. 

statutory  provisions  relating  to  foreclosure,  1337. 

strict  foreclos/jre  in,  1547. 

power  of  sale  mortgages  and  trust  deeds  in,  1737. 

LACHES  in  claiming  that  a  deed  absolute  is  a  mortgage,  330. 
in  redeeming  after  foreclosure  sale,  1054,  1161  a. 
in  setting  aside  foreclosure  sale,  1674. 
sale  under  power,  1922. 
LAND  GRANT  subject  to  mortgage,  157. 
LAW  OF  PLACE,  as  regards  usury,  656-663. 

in  force  at  time  of  execution  of  mortgage  governs,  663,  1051,  1822. 
as  regards  assignments,  823. 
LEASE,  mortgage  of,  how  foreclosed,  1449. 

LEASEHOLD  ESTATES,  mortgage  of,  within  recording  acts,  478. 
mortgagor  in  possession  entitled  to  rents,  670. 
when  mortgagee  liable  for  rent,  785. 
mortgagee  entitled  to  the  rents,  785. 
964 


INDEX. 

References  are  to  Sections. 
LESSEE,  of  mortgaged  estate,  his  rights  and  liabilities,  771-785. 
mortgagor  in  possession  not  liable  for  rent,  771. 
made  before  mortgage  not  affected  by  it,  773. 
wlien  mortgage  an  assignment  of  the  reversion,  774. 
rent  accrued  does  not  pass  by  the  assignment,  774. 
rights  of  mortgagee  as  assignee  of  the  reversion,  774,  775. 
of  mortgagor  after  mortgage  is  subject  to  it,  776. 
attornment  by,  777,  778. 
mortgagee  may  treat  lessee  as  trespasser,  777. 
tenants  not  allowed  compensation  for  improvements,  779. 
mortgagee  not  liable  for  mortgagor's  misrepresentations  to  tenants, 

779. 
emblements,  780. 

no  one  but  mortgagee  can  take  advantage  of  invalid  lease,  781. 
provision  authorizing  mortgagor  to  bind  mortgagee  by  lease,  782. 
lease  by  mortgagee  in  possession  terminated  by  redemption,  783. 
assignment  by  mortgagee  no  transfer  of  rent  due,  784. 
for  years,  not  entitled  to  any  part  of  surplus,  1696. 
LEX  FORI,  as  regards  usury,  656-663. 

LEX  LOCI  CONTRACTUS  governs  as  to  usury,  when,  656-661. 
LEX  REI  SITJE  governs  as  to  general  validity  of  mortgage,  662. 

as  to  proceedings  for  foreclosure  and  redemption,  1051. 
LIEN.     (See  Mechanic's  LieI'T.) 
LIEN  OF  VENDOR,  189. 

LIMITATIONS,  STATUTE  OF,  as^affecting  vendor's  lien,  237. 
when  mortgage  debt  barred  by,  915. 
ap2:)lies  by  analogy  to  right  of  redemption,  1144. 
the  statute  in  force  governs,  1145. 
special  statutes  relating  to  redemption,  1145. 
when  mortgagee's  possession  not  adverse,  1149. 
adverse  possession  operates  against  married  woman,  1150. 
successive  disabilities  of  mortgagor,  1151. 
When  it  heghis  to  run  against  redemption,  1152. 
not  while  mortgage  relation  exists,  1152. 
under  Welsh  mortgage,  1153. 
when  mortgagor  retains  possession  of  part,  1155. 
runs  from  time  of  entry  of  mortgage,  1156. 
presumption  that  right  is  barred  after  twenty  years,  1157. 
constructive  possession  not  suflicient,  1158. 
when  notice  to  mortgagor  necessary,  1159. 
when  right  is  barred  after  imperfect  foreclosure,  1161. 
lapse  of  time  less  than  that  prescribed,  1161  a. 
What  prevents  the  running  of,  1162-1173. 
acknowledgment  of  mortgagee,  1162. 

965 


INDEX. 

References  are  to  Sections. 

LIMITATIONS,  STATUTE  OY  — continued. 
to  a  third  person,  1164. 
binding  upon  all  claiming  under,  1165. 
by  rendering  account,  1166. 
by  letter,  1167. 

by  assignment  of  mortgage,  1168. 
by  recital  in  deed,  1169. 
by  suit  to  enforce,  1170. 
verbal,  1171. 
filing  of  bill  to  redeem  stops,  1172. 
how  pleaded,  1173. 
When  the  right  to  foreclose  is  bat-red,  1192-1214. 

statute  applies  to  mortgages  by  analogy,  1192. 
tendency  to  shorten  period  of,  1193. 
presumption  of  payment  not  conclusive,  1196. 
presumption  repelled  by  circumstances,  1197. 
payment  of  interest  renews,  1198. 

by  one  tenant  in  common,  1199. 
payment  of  taxes,  1200. 
statute  does  not  discharge  the  debt,  1203. 
though  debt  be  barred  lien  may  be  enforced,  1204. 

in  what  States  rule  is  otherwise,  1207. 
adverse  possession  by  several  persons  successively,  1208. 
lien  for  purchase-money  barred  when  debt  is  barred,  1209. 
statute  runs  from  time  right  of  action  accrues,  1210. 
possession  of  mortgagor  presumed  to  be  subordinate,  1211. 
special  statute  of  limitations,  1214. 
defence  of,  in  bill  to  foreclose,  1509. 
LIS  PENDENS,  doctrine  of  as  regards  registration  and  notice,  599. 

as  regards  new  parties  in  interest,  1411,  1442. 
LOAN  ASSOCIATIONS,  usury  in  mortgages  of,  638. 
LOSS  OF  MORTGAGE,  decree  for  making  a  new  one,  100. 
LOUISIANA,  notice  of  a  mortgage  in,  32. 
usury  in,  633. 

compound  interest  cannot  be  recovered,  650. 
assignment  of  debt  passes  mortgage  in,  817. 
entry  of  satisfaction  of  record,  1008. 
no  redemption  after  foreclosure,  1051,  1338. 
statutory  jiro visions  relating  to  foreclosure,  1338. 
power  of  sale  mortgages  and  trust  deeds  in,  1738. 
LUMPING  SALES.     (See  Sales  in  Parcels.) 

MAINE,  nature  of  a  mortgage  in,  33. 

verbal  authority  to  fill  blanks,  90. 
966 


INDEX. 

References  are  to  Sections. 

MAINE  —  continued. 

parol  evidence  to  show  a  mortgage,  298. 

statutory  provisions  as  to  insurance,  405. 

usury  in,  633. 

assignment  of  debt  without  mortgage  in,  817. 

entry  of  satisfaction  of  record,  1009. 

redemption  after  entry  to  foreclose,  1051,  1339. 

statute  of  limitations,  twenty  years,  1193. 

provisions  for  foreclosure  by  entry  and  possession,  1239,  1240. 

writ  of  entry  to  foreclose  mortgage,  1276,  1277. 

statutory  provisions  relating  to  foreclosure,  1339. 

power  of  sale  mortgages  and  trust  deeds  in,  1739. 
MARRIED  WOMAN,  description  of  in  mortgage,  63. 

acknowledgments  by,  83. 

disability  of  at  common  law,  106. 

coverture  does  not  remove  disability  of  infancy,  106. 

liability  of  in  equity  for  her  contracts,  107. 

English  rule  of  liability  of  her  property,  108. 

American  rule,  109. 

can  bind  herself  personally  on  what  contracts,  110. 

liability  for  a  deficiency  after  foreclosure,  111. 

doctrine  of  her  liability  for  her  general  debts,  112. 

her  mortgage  to  secure  her  husband's  debt,  113. 

when  a  surety  for  her  husband,  114,  949. 

may  assume  a  mortgage,  116,  753. 

may  take  mortgages,  133. 

bound  by  lien  reserved  in  deed  to,  231. 

mortgage  of,  obtained  by  duress  or  fraud,  626. 

entitled  to  the  benefit  of  payments  on  her  mortgage,  949. 

equitable  assignment  of  mortgage  by,  813. 

holding  mortgage,  may  foreclose,  1393. 

wife  of  mortgagor  party  to  foreclosure  suit,  1420-1422. 

not  liable  to  personal  judgment  for  deficiency,  1718. 

may  confer  a  valid  powt-r  of  sale,  1777  a 
MARSHALLING  SECURITIES,  as  between  different  creditors,  875. 

when  mortgagee  has  other  security,  1628,  1629. 

when  mortgagee  holds  two  mortgages,  1630. 

after  release  by  mortgagee  of  part  primarily  liable,  1631. 
MARYLAND,  nature  of  a  mortgage  in,  34. 

form  of  mortgage,  61. 

written  authority  to  fill  blanks,  90. 

parol  evidence  to  show  a  mortgage,  299. 

record  of  assignments  provided  for,  479. 

affidavit  of  consideration,  610. 

967 


INDEX. 

References  are  to  Sections, 
MARYLAND  —  continued. 
usury  in,  633. 

entry  of  satisfaction  of  rscord,  1010. 
no  redemption  after  foreclosure,  1051,  1340. 
statutory  provisions  relating  to  foreclosure,  1340. 
power  of  sale  mortgages  and  trust  deeds  in,  1740, 
MASSACHUSETTS,  nature  of  a  mortgage  in,  35. 
form  of  mortgage,  60. 
written  authority  to  fill  blanks,  90. 
parol  evidence  to  sliow  a  mortgage,  300. 
usury  in,  633. 

assignment  of  debt  without  mortgage  in,  817. 
entry  of  satisfaction  of  record,  1011. 
redemption  after  entry  to  foreclose,  1051,  1341. 
statute  of  limitations,  twenty  years,  1193. 

provisions  respecting  foreclosure  by  entry  and  possession,  1244. 
writ  of  entry  to  foreclose  mortgage,  1276,  1777. 
statutory  j^rovisions  relating  to  foreclosure,  1341. 
power  of  sale  mortgages  and  trust  deeds  in,  1741. 
MECHANIC'S    LIEN,    vendor    reserving    legal    title    not   affected    by, 
227. 
subject  to  purchase-money  mortgage,  475. 
mortgage  for  obligatory  advances  has  precedence,  370. 
purchase-money  mortgage  has  precedence,  487. 
attempt  to  defeat  by  fraudulent  mortgage,  628. 
mortgage  executed  before  commencement  of  building,  609. 
general  view  of  statutes  affecting  priority  of  mortgages,  487. 
from  commencement  of  the  work,  487. 

what  the  commencement  of  a  building  is,  487. 

commencement  of  alteration,  487. 

for  repairs  not  paramount  to  existing  mortgage,  487. 

proof  requisite  to  establish,  487. 

upon  building  distinct  from  land,  487. 
MERGER,  doctrine  of,  848-873. 

at  law  and  in  equity,  848. 

none  on  assignment  to  co-tenant,  849. 

none  on  assignment  to  wife  of  mortgagor,  850. 

none  on  marriage  of  mortgagor  and  mortgagee,  851. 

none  when  equitable  estate  has  been  extinguished,  852. 

when  assignee  is  estopped  to  claim,  853. 

estopped  by  selling  the  estate  free  of  incumbrances,  854. 

intention  governs  as  to,  855. 

intention  expressed,  856. 

intention  expressed  against  merger,  857. 
968 


INDEX. 

References  are  to  Sections. 
MERGER —  continued. 

a  release  may  operate  as  assignment,  858. 

deed  of  quitclaim  from  mortgagee,  859. 

bequest  of  mortgage  to  mortgagor,  860. 

parol  evidence  of  intention,  861. 

in  new  security  or  judgment,  862. 

mortgage  will  not  be  kept  alive  to  aid  in  a  wrong,  863. 

when  debt  is  paid  by  one  bound  to  pay  it,  864. 

when  mortgage  assigned  to  one  who  has  assumed  it,  865. 

with  reference  to  right  of  dower,  866, 

payment  by  one  who  has  warranted  against  incumbrances,  867. 

assignment  to  subsequent  purchaser,  868. 

payment  by  purchaser,  869. 

acquisition  of  equity  of  redemption  by  mortgagee,  870. 

mortgagee  purchasing  and  giving  up  note,  871. 

purchaser  cannot  rely  upon  record  as  showing,  872. 

whether  extinguishment  of  equity  or  merger  of  mortgage,  873. 

merger  of  note  in  judgment  does  not  extinguish  debt,  936. 
MICHIGAN,  nature  of  a  mortgage  in,  36. 

parol  evidence  to  show  a  mortgage,  301. 

record  of  assignment  not  notice  to  mortgagor,  480. 

usury  in,  633. 

compound  interest  allowed  in,  650. 

assignment  of  debt  passes  mortgage  in,  817. 

tender  of  payment  discharges  debt  in,  893. 

entry  of  satisfaction  of  record,  1012. 

redemption  after  foreclosure,  1051,  1342. 

statute  of  limitations,  fifteen  years,  1193. 

statutory  provisions  relating  to  foreclosure,  1342. 

power  of  sale  mortgages  and  trust  deed  in,  1742. 
MINNESOTA,  nature  of  mortgage  in,  37. 

parol  evidence  to  show  a  mortgage,  302. 

record  of  assignment  not  notice  to  mortgagor,  473. 

usury  in,  633. 

entry  of  satisfaction  of  record,  1013. 

redemption  after  foreclosure,  1051,  1343. 

statute  of  limitations,  ten  years,  1193. 

statutory  provisions  relating  to  foreclosure,  1343. 

strict  foreclosure  in,  1548. 

power  of  sale  mortgages  and  trust  deeds  in,  1743. 
MISSISSIPPI,  nature  of  mortgage  in,  38. 

written  authority  to  fill  blanks,  90. 

power  of  married  women  to  mortgage,  118. 

parol  evidence  to  show  a  mortgage,  303. 

969 


INDEX. 

References  are  to  Sections. 

MISSISSIPPI  —  cow^mwecZ. 

usury  in,  633. 

assignment  of  debt  passes  mortgage  in,  817. 

entry  of  satisfaction  of  record,  1014. 

DO  redemption  after  foreclosure,  1051,  1344. 

when  right  to  redeem  barred  in,  1145. 

statute  of  limitations  in,  1193. 

statutory  provisions  relating  to  foreclosure,  1344. 

power  of  sale  mortgages  and  trust  deeds  in,  1744. 
MISSOURI,  notice  of  a  mortgage  in,  39. 

form  of  mortgage,  61. 

parol  evidence  to  show  a  mortgage,  304. 

usury  in,  633. 

compound  interest  allowed  in,  650. 

assignment  of  debt  passes  mortgage  in,  817. 

entry  of  satisfaction  of  record,  1015. 

no  redemption  after  foreclosure,  1051,  1345. 

statute  of  limitations,  ten  years,  1193. 

statutory  provisions  relating  to  foreclosure,  1345. 

strict  foreclosure  not  allowed  in,  1549. 

power  of  sale  mortgages  and  trust  deeds  in,  1745. 
MISTAKES,  in  drawing  mortgage,  97. 

in  describing  debt,  354. 

discharge  made  by,  966-971. 

only  mistake  of  fact  in  making  discharge  entitles  to  relief,  699. 

in  making  discharge  when  assignment  was  intended,  970. 

in  substituting  new  mortgage  when  a  lien  intervenes,  971. 

when  ground  for  setting  aside  foreclosure  sale,  1675. 

in  advertisement  of  sale,  1851. 
MONEY,  tender  may  be  made  in  what,  901. 
MONTANA,  nature  of  a  mortgage  in,  39  a. 

parol  evidence  to  show  absolute  deed  a  mortgage,  304  a. 

usury  in,  633. 

entry  of  satisfaction  of  record,  1016. 

statute  of  limitations,  three  years,  1193. 

statutory  provisions  relating  to  foreclosure,  1346. 

power  of  sale  mortgages  and  trust  deeds  in,  1746. 
MORTGAGE,  at  law  and  in  equity,  8-16,  59. 

common  law  doctrine  of,  11. 

not  a  mere  security,  12. 
the  different  theories  of,  14. 

practical  distinctions  between,  15. 
definition  of,  16. 

nature  of  in  the  different  States,  17-59. 
970 


INDEX. 

References  are  to  Sections. 

MORTGAGE  —  continued. 
form  of,  60. 

description  of  the  parties,  63. 
consideration  named  in,  64. 
description  of  premises,  65. 
uncertainty  in  description,  66. 
habendum  in,  67. 
covenant  in,  68. 
condition  in,  69. 
description  of  debt  secured,  70. 
sealing  is  essential,  81. 
signing  is  requisite,  81. 
witness  to,  82. 
acknowledgment  of,  83. 
delivery  of  essential,  84. 
subsequent  acceptance  of,  85. 
executed  to  be  sold,  when  a  lien,  86. 
date  of,  89. 

filling  blanks  after  execution  of,  90. 
alteration  of,  94,  95. 
cannot  be  varied  by  parol,  90. 
reforming  a  mortgage,  97-99. 
principles  of  construction,  101. 
legal  capacity  to  execute,  102. 
by  executor,  102  a. 
by  guardian,  102  h. 
of  partnership  real  estate,  119-123. 
by  corporation,  124—128. 
who  may  make,  102-130, 
who  may  take,  131-135. 
what  may  be  the  subject  of,  136-161. 
of  a  mortgage,  138,  139. 
of  rents,  140. 

of  building  may  pass  the  land,  142. 
securing  debt  to  another  besides  the  mortgagee,  170. 
statutory,  178. 

by  absolute  deed  and  agreement  to  reconvey,  241-281. 
distinguished  from  conditional  sale,  241-281. 
cannot  be  shown  by  parol  to  have  been  intended  as  sale,  277. 
distinguished  from  a  trust,  281,  332. 
parol  evidence  to  prove,  282-342. 
the  debt  secured  by,  343-395. 
redelivery  of  for  new  obligation,  362. 
to  secure  future  advances,  364-378. 

971 


INDEX. 

References  are  to  Sections. 

MORTGAGE  —  continued. 
of  indemnity,  379-387. 
for  support,  388-395. 

not  an  alienation  within  terms  of  insurance  policy,  442. 
what  fixtures  covered  by,  428-452. 
registration  of,  456-537. 
for  purchase-money,  468. 
void  and  voidable,  610-632. 
usurious,  633-663. 

before  foreclosure  is  personal  assets,  700. 
of  premises  leased  is  an  assignment  of  the  reversion,  774. 
for  support,  assignment  of,  803. 
assignment  of  without  debt,  805. 
payment  of,  886-942. 
revivor  of,  943-949. 
foreclosure  of  is  not  payment,  950-955. 
who  may  receive  payment  of,  956-965. 
discharge  of,  956-1037, 
redemption  of,  1038-1113. 
when  right  to  redeem  is  barred,  1144-1173. 
when  right  to  foreclosure  accrues,  1174-1191. 
MORTGAGEE,  at  common  law  has  legal  estate,  11. 

his  right  of  possession  in  the  several  States,  17—59. 

filling  in  name  after  execution,  90,  91. 

insurable  interest  of,  397. 

equitable  lien  of,  upon  insurance,  402. 

loss  payable  to,  406-410. 

when  liable  as  insurer,  416. 

insurance  obtained  by,  418-421. 

a  purchaser  within  the  recording  acts,  459. 

but  not  when  the  mortgage  secures  a  preexisting  debt,  459. 

further  time  is  a  good  consideration,  459. 
mortgagor's  possession  not  adverse  to,  672. 
not  liable  to  ejectment  by  mortgagor,  674. 
not  liable  to  trespass  by  mortgagor,  675. 
mortgagor's  personal  liability  to,  677. 
right  of  action  for  waste,  687-691. 
remedy  of,  for  injury  by  mortgagor,  695. 

for  injuries  by  stranger,  695  a. 
remedy  for  wilful  injury  done  the  security,  696. 
His  rights  and  liabilities,  699-734. 

not  in  general  sense  owner  of  the  property,  699. 

his  interest  personal  assets,  700. 

cannot  be  levied  upon  or  attached,  701. 
972 


INDEX. 

References  are  to  Sections'. 
MOKTGAGEE  —  continued. 

when  entitled  to  possession,  702. 
cannot  be  disseised  by  mortgagor,  703. 
joint  tenancy,  704. 
when  may  have  partition,  705. 
when  bound  by  partition  between  mortgagors,  706. 
His  rights  against  mortgagor,  707-721. 
entitled  to  whole  security,  707. 
entitled  to  an  award  of  damages  to  property,  708. 
an  essential  party  to  proceedings  affecting  his  rights,  709. 
a  purchaser  to  extent  of  his  claim,  710. 
may  purchase  mortgagor's  equity,  711. 
although  in  possession,  712. 
limitation  of  this  right,  713. 
acquiring  tax  title,  714. 
cannot  be  divested  of  possession  until  payment,  715,  716. 

rule  otherwise  in  Michigan,  717. 
writ  of  entry  by,  718. 
ejectment  by,  718. 
forcible  entry  and  detainer  by,  720. 
trespass  for  mesne  profits,  721. 
His  liability  to  third  persons,  722-734. 

for  releasing  part  of  security,  722. 
what  notice  of  others'  rights  affects,  723. 
cannot  release  to  prejudice  of  surety,  724. 

nor  to  prejudice  of  junior  mortgagee,  725. 
principal  creditor  entitled  to  surety's  mortgage,  726. 
for  release  of  mortgagor  from  liability,  726. 
for  application  of  other  security,  728. 
proof  of  claim  in  bankruptcy,  729. 
cannot  change  terms  of  mortgage  as  against,  730,  732. 
when  homestead  is  included  in  mortgage,  731. 
junior  mortgagee's  rights,  725,  730,  732,  733,  756. 
owner  of  one  lot  may  have  amount  on  his  lot  declared,  733. 
when  estopped  to  assert  mortgage,  734, 
when  entitled  to  rents  of  mortgaged  premises,  772-775. 
lease  by  mortgagee  in  possession,  783. 
whether  liable  for  rent  of  leasehold  estate,  785. 
whether  he  can  be  compelled  to  assign  on  payment,  792,  793. 
legal  interest  of  after  assignment,  818,  819. 
purchasing  equity  of  redemption,  when  a  merger,  871. 
junior  may  redeem,  1064. 

liability  to  account  for  rents  and  profits,  1114-1143. 
his  remedies  for  enforcing  mortgage,  1215-1236. 

973 


INDEX. 

References  are  to  Sections. 
MORTGAGEE  —  continued. 

Buying  at  foreclosure  sale  under  decree,  1636. 

generally  no  objection  to,  1636. 

no  deed  necessary  to  pass  title,  1660. 

court  more  ready  to  open  sale,  1671. 
Buying  under  power  of  sale,  1876-1888. 

generally  not  allowed  to  buy,  1876. 

purchase  voidable  though  no  fraud  be  shown,  1877. 

rule  applies  to  mortgagee's  solicitor,  1878. 
or  agent,  1879. 

less  strictness  than  in  case  of  trustee,  1881. 

no  restriction  when  the  sale  is  judicial,  1882. 

provision  in  mortgage  enabling,  1883. 

rule  has  no  application  to  subsequent  mortgagee,  1884. 

right  to  avoid  waived  by  delay,  1885. 
MORTGAGOR,  the  legal  owner  except  as  to  the  mortgagee,  11. 
where  his  interest  is  regarded  as  the  legal  estate,  13. 
provision  for  his  retaining  possession,  80. 
when  estoppel  to  take  advantage  of  irregular  execution,  92, 
cannot  renounce  right  of  redemption  in  mortgage,  251. 
interest  of  insurable,  397. 

how  long  it  remains  so,  398. 
insurance  by,  for  benefit  of  mortgagee,  400. 
his  rights  and  liabilities,  664-698. 
his  right  of  possession  as  against  third  persons,  664. 
his  equity  of  redemption  may  be  sold  on  execution,  665. 
his  widow  entitled  to  dower  in  equity  of  redemption,  666. 
his  right  of  possession  against  mortgagee,  667. 

may  be  implied  when,  668. 

as  modified  by  statute,  669. 

his  right  to  rents  and  profits,  670. 

whether  liable  to  mortgagee  for  rent,  671. 

his  possession  not  adverse  to  mortgagee,  672. 

remedy  of  to  recover  possession  from  mortgagee,  673. 
cannot  maintain  ejectment  against  mortgagee,  674. 
cannot  maintain  trespass  against  mortgagee,  675. 
action  for  damages  against  mortgagee  not  in  possession,  675  a. 
injunction  to  restrain  mortgagee  from  doing  injury,  675  a. 
has  perfect  right  to  convey  his  equity,  676. 
his  personal  liability  to  mortgagee,  677. 
no  covenant  to  pay  implied,  678. 
right  to  have  property  applied  to  debt,  678  a. 
subsequently  acquired  title  of,  679. 
cannot  set  up  tax  title,  680. 
974 


INDEX.  ' 

References  are  to  Sections. 
MORTGAGOR  —  continued. 

his  improvements  are  subject  to  mortgage,  681. 

is  estopped  to  deny  his  title,  682. 

when  estopped  to  deny  validity  of  mortgage,  683. 

waste  by  may  be  restrained,  684-696. 

his  removal  of  timber  already  cut,  685. 

when  replevin  for  timber  cut  may  be  had,  688. 

may  have  license  to  cut  wood,  692. 

his  abuse  of  license  to  cut  wood,  693. 

his  right  to  wood  for  his  own  fires,  694. 

liability  of,  to  action  for  injury  to  property,  695,  696. 

his  right  to  emblements,  G97. 

may  waive  right  to  emblements,  698. 

release  from  personal  liability,  727. 

in  possession  entitled  to  the  rents,  771,  1120. 

lease  by,  after  mortgage,  776. 

not  bound  by  stipulation  not  to  redeem,  1039. 

upon  death  of,  no  proof  required  against  his  estate,  1222. 
MORTUUM  VADIUM,  2,  4. 

MULTIFARIOUSNESS,  none    in    bill  to   foreclose   several   mortgages, 
1083,  1458. 

NATIONAL   BANKS  prohibited  from  taking  mortgages,  134. 
NATURE  OF  A  MORTGAGE,  159. 

at  law  and  in  equity,  8-16. 

in  the  different  States,  17-59. 
NEBRASKA,  nature  of  a  mortgage  in,  40. 

parol  evidence  to  show  a  mortgage,  305. 

record  of  assignment  not  notice  to  mortgagor,  473. 

usury  in,  633. 

entry  of  satisfaction  of  record,  1017. 

no  redemption  after  foreclosure,  1051,  1347. 

statute  of  limitations,  ten  years,  1193. 

mortgage  barred  when  debt  barred,  1207. 

statutory  provisions  relating  to  foreclosure,  1347. 

strict  foreclosure  in,  1550. 

power  of  sale  mortgages  and  trust  deeds  in.  1747. 
NEGLIGENCE,  as  affecting  priority,  604-609. 

is  not  fraud,  but  evidence  of  it,  604. 

in  cancelling  a  mortgage  and  taking  a  new  one,  605. 

in  taking  one  of  several  notes  secured,  606. 
NEVADA,  nature  of  a  mortgage  in,  41. 

parol  evidence  to  show  a  mortgage,  306. 

usury  in,  633. 

975 


INDEX. 

References  are  to  Sections. 

NEVADA  —  continued. 

entry  of  satisfaction  of  record,  1018. 

redemption  after  foreclosure,  1015,  1348- 

statute  of  limitations,  four  yeai\s,  1193. 

mortgage  barred  when  debt  barred,  1207. 

statutory  provisions  relating  to  foreclosure,  1348. 

power  of  sale  mortgages  and  trust  deeds  in,  1748. 
NEW  HAMPSHIRE,  nature  of  a  mortgage  in,  42. 

parol  evidence  to  show  a  mortgage,  307. 

mortgage  for  future  advances  in,  366. 

mortgage  for  support,  how  regarded,  388. 

usury  in,  633. 

assignment  of  debt  passes  mortgage,  817. 

entry  of  satisfaction  of  record,  1019. 

redemption  after  entry  to  foreclose,  1051,  1349. 

statute  of  limitations,  twenty  years,  1193. 

provisions  for  foreclosure  by  entry  and  possession,  1241-1243. 

writ  of  entry  to  foreclose  mortgage,  1278. 

statutory  provisions  relating  to  foreclosure,  1349. 

power  of  sale  mortgages  and  trust  deeds  in,  1749. 
NEW  JERSEY,  nature  of  a  mortgage  in,  43. 
^  jiarol  evidence  to  show  a  mortgage,  308. 

usury  in,  633. 

rules  as  to  tender  of  payment  in,  892. 

entry  of  satisfaction  of  record,  1020. 

no  redemption  after  foreclosure,  1051,  1350. 

when  right  to  redeem  barred  in,  1145. 

statute  of  limitations,  twenty  years,  1193. 

statutory  provisions  relating  to  foreclosure,  1350. 

power  of  sale  mortgages  and  trust  deeds  in,  1750. 
NEW  MEXICO,  nature  of  a  mortgage  in,  43  a. 

provisions  respecting  mechanics'  liens  in,  510. 

usury  in,  633. 

entry  of  satisfaction  of  record,  1021. 
NEW  PARTIES  may  be  joined  in  foreclosure  suit,  1442. 
NEW  PROINIISE  to  take  mortgage  out  of  statute  of  limitations,  196. 
NEW  YORK,  nature  of  a  mortgage  in,  44. 

parol  evidence  to  show  a  mortgage,  309. 

record  of  assignment  not  notice  to  mortgagor,  480. 

usury  in,  633. 

assignment  of  debt  passes  mortgage  in,  817. 

tender  of  payment  discharges  debt  in,  893. 

entry  of  satisfaction  of  record,  1022. 

no  redemption  after  foreclosure,  1051,  1351. 
976 


INDEX. 

References  are  to  Sections. 
NEW  YORK  -  contmued. 

redemption  barred  in  ten  years  in,  1147. 

statute  of  limitations,  twenty  years,  1193. 

statutory  provisions  relating  to  foreclosure,  1351. 

strict  foreclosure  in,  1551. 

power  of  sale  mortgages  and  trust  deeds  in,  1751. 
NORTH  CAROLINA,  nature  of  a  mortgage  in,  45. 

written  authority  to  fill  blanks,  90. 

parol  evidence  to  show  a  mortgage,  310. 

doctrine  of  notice  under  the  registry  laws,  573. 

usury  in,  633. 

assignment  of  debt  passes  mortgage  in,  817. 

entry  of  satisfaction  of  record,  1023. 

no  redemption  after  foreclosure,  1051,  1352. 

when  right  to  redeem  barred  in,  1145. 

statute  of  limitations,  ten  years,  1193. 

statutory  provisions  relating  to  foreclosure,  1352. 

strict  foreclosure  in,  1552. 

power  of  sale  mortgages  and  trust  deeds  in,  1752. 
NORTH  DAKOTA,  nature  of  a  mortgage  in,  45  a. 

forB3  of  mortgage,  61. 

parol  evidence  to  show  a  mortgage,  310  a. 

usury  in,  633. 

entering  discharge  of  record,  1023  a. 

statute  of  limitations,  twenty  years,  1193. 

statutory  provisions  relating  to  foreclosure,  1352  a. 

power  of  sale  mortgages  and  trust  deeds  in,  1752  a. 
NOTE  secured  construed  with  mortgage,  71. 

parol  evidence  to  identify,  71,  352. 

secured  by  express  lien,  order  of  payment,  236, 

description  of  all  particulars  not  necessary,  350. 

is  evidence  of  amount  of  debt,  351. 

not  essential  to  a  mortgage,  353. 

renewal  does  not  affect  security,  355. 

assignment  of  mortgage  without,  804-807,  817-822. 

negotiable  before  due  not  subject  to  equities,  834. 
overdue  subject  to  equities,  841, 

substituted  in  place  of  original  note  secured,  925-927. 

incorporating  additional  loan  in  new  note,  930. 

new  note  for  different  amount,  931. 

new  note  for  interest,  932. 

consideration  of  nevv  note,  933. 

renewal  of  note  for  which  mortgage  is  indemnity,  934. 

surrender  of,  983. 
TOL.  n.  62  977 


INDEX. 

References  are  to  Sections. 

NOTE  —  continued. 

should  be  produced  in  foreclosui-e  suit,  1308. 
renewal  of  should  be  alleged  in  bill  to  foreclose,  1468. 
proof  of  in  foreclosure  suit,  1469. 
NOTICE,  of  partnership  equities,  119. 

of  separate  defeasance  by  record,  254. 
by  possession,  255,  600. 
by  registration,  456-537. 
takes  effect  from  filing  deed  for  record,  504. 
record  is  constructive,  523. 

of  contents  of  deed,  523-529. 
subsequent  records  are  not,  to  prior  mortgagee,  530,  723. 
As  affecting  priority  under  registry  acts,  538-542. 
under  the  registry  acts,  538. 
ground  of,  538. 
policy  of,  538. 
doctrine  of,  538. 
exception  in  some  States,  539. 
practical  effect  of,  540. 
examination  of  record,  541. 
of  secret  trust,  542.  • 

Actual,  543-559. 

different  kinds  of,  543. 

degrees  of  actual,  544-546. 

notice  implied  by  circumstances,  545. 

what  is  sufficient  to  put  purchaser  upon  inquiry,  547. 

must  be  sufficient  to  make  inquiry  upon,  548. 

of  intention  of  owner  to  execute  a  lien,  549. 

deed  not  in  the  line  of  title,  550. 

inquiry  must  be  prosecuted  by  reliable  information,  551. 

inquiry  must  be  prosecuted  with  diligence,  552. 

presumption  of  notice  rebutted  by  showing  due  inquiry,  553. 

burden  of  proof  upon  the  person  who  charges  notice,  554, 

has  effect  if  received  before  completion  of  trade,  555. 

one  who  has  paid  part  of  purchase-money  is  protected  to  that 

extent,  556. 
one  with,  may  acquire  good  title  from  one  without,  557. 
one  without,  may  acquire  good  title  from  one  with,  558,  559. 
Implied,  560-570. 

notice  to  principal,  from  notice  to  agent,  560. 
upon  what  principle  doctrine  rests,  561. 
must  be  in  same  transaction,  562. 
must  be  matter  material  to  transaction,  563. 
when  agent  is  employed  by  both  parties,  564. 
978 


INDEX. 

References  are  to  Sections. 
NOTICE  —  continued. 

when  agent  is  a  party,  565. 

when  agent  is  guilty  of  fraud,  566. 

not  implied  out  of  relationship  of  husband  and  wife,  567. 

purchaser  from    one    joint    owner    chargeable    with    notice  of 
others'  interest,  568. 

knowledge  that  land  is  partnership  property,  569. 

to  aflfect  corporation,  570. 
Cotistructive,  571-582. 

general  principles,  571. 

is  imputed  on  ground  of  fraud  or  negligence,  572. 

of  existence  of  lien  without  particulars,  573. 

from  recitals  in  deeds,  574. 

recital  that  premises  are  subject  to  a  mortgage,  575. 

from  recital  in  a  prior  deed,  576,  578. 

from  sale  of  mortgaged  premises  in  parcels,  577. 

what  sufficient  to  put  upon  inquiry,  579. 

use  of  reasonable  diligence  necessary,  580. 

from  conveyance  subject  to  mortgage,  581. 

release  of  all  interest  is  subject  to  unrecorded  mortgage,  582. 
Xi's  pendens,  what  is,  583-585. 

arises  from  time  of  service  of  writ,  584. 
as  affected  by  actual  notice,  585. 
Possession  is,  how  far,  586-601. 

is  notice,  though  not  known  to  purchaser,  587. 
not  necessarily  evidence  of  any  particular  title,  588. 
of  tenant  is  notice  of  his  interest,  589. 
is  notice  only  during  its  continuance,  590. 
must  be  visible,  open,  and  exclusive,  591. 
occupation  of  an  easement,  592. 
equivocal,  occasional,  or  temporary,  593. 
should  be  inconsistent  with  purchasers'  title,  594. 
of  part  of  premises  may  be  notice  as  to  entire  premises,  595. 
may  be  notice  of  homestead  rights,  596. 

by  grantor  after  recorded  conveyance  not  notice  to  subsequent  pur- 
chaser of  any  right  reserved,  597. 
grantor's  possession  continued  for  a  long  period,  598. 
after  premises  have  been  sold  under  foreclosure,  599. 
after  absolute  deed  with  unrecorded  defeasance,  600. 
occupant  may  be  estopped  by  his  acts  from  claiming  that  his  posses- 
sion is  notice,  601. 
what  affects  mortgagee,  723. 
assignees  should  give  notice  to  mortgagor,  791. 
of  payment  not  required,  890,  1071. 

979 


INDEX. 

References  are  to  Sections. 
NOTICE  —  continued. 

of  foreclosure  sale  under  decree  of  court,  1612. 
want  of,  under  power,  no  ground  for  enjoining  sale,  1810. 
Personal,  of  sale  under  power.     (See  Power  of  Sale  Mortgages, 

ETC.,  1821-1827.) 
Under  power  of  sale,  publication  of,  1828-1839. 
what  notice  should  contain,  1839-1856. 
NOVATION.     (See  Renewal.) 

does  not  arise  from  mere  assumption  of  mortgage,  741. 

OHIO,  nature  of  a  mortgage  in,  46. 

written  authority  to  fill  blanks,  90. 

parol  evidence  to  show  a  mortgage,  311. 

doctrine  of  notice  under  the  registry  laws,  539. 

usury  in,  633. 

assignment  of  debt  passes  mortgage  in,  817. 

entry  of  satisfaction  of  record,  1024. 

no  redemption  after  foreclosure,  1051. 

statutory  provisions  relating  to  foreclosure,  1353. 

strict  foreclosure  in,  1553. 

power  of  sale  mortgages  and  trust  deeds  in,  1753. 
OKLAHOMA  T.,  usury  in,  633. 

statutory  provisions  as  to  foreclosure  and  redemption,  1353  a. 
ONCE  A  MORTGAGE  ALWAYS  A  MORTGAGE,  7,  340. 

when  rule  not  applicable,  247. 
OPENING   BIDDINGS  at  foreclosure  sale,  1640. 
OPTION  to  purchase  land  may  be  mortgaged,  136. 

of  mortgagee  to  declare  default  of  whole  debt,  1179. 

provision  need  not  be  in  both  mortgage  and  note,  1179  a. 
ORDER    OF   SALE.      (See   Inverse    Order    of    Sale,    1091,    1092, 
1620-1632.) 

decree  should  provide  for,  1576. 
OREGON,  nature  of  a  mortgage  in,  47. 

parol  evidence  to  show  a  mortgage,  311  a. 

record  of  assignment  not  notice  to  mortgagor,  473. 

usury  in,  633. 

entry  of  satisfaction  of  record,  1025. 

redemption  after  foreclosure,  1051,  1354. 

statutory  provisions  relating  to  foreclosure,  1354. 

power  of  sale  mortgages  and  trust  deeds  in,  1754. 
OVERPAYMENT,  may  be  recovered,  903. 

of  interest,  903. 

to  prevent  foreclosure,  1085. 

judgment  for,  in  foreclosure  suit,  1496. 
980 


INDEX. 

References  are  to  Sections. 

PARCELS.     (See  Sale,  1616-1610.) 
PAROL  AGREEMENT  to  vary  terms,  96. 
PAROL  AUTHORITY  to  fill  blanks,  90,  91. 
PAROL  EVIDENCE,  as  to  existence  of  vendor's  lien,  196. 
to  connect  deed  and  separate  defeasance,  248. 
to  show  a  conditional  sale,  277. 
Tu  prove  an  absolute  deed  a  mortgage,  282-342. 
there  must  be  equitable  grounds,  283. 
the  doctrine  in  England,  284. 
the  doctrine  in  the  United  States  courts,  285. 
the  doctrine  in  the  several  States,  286-321. 
fraud,  accident,  and  mistake,  as  grounds  for  admission  of,  321. 
intention  as  ground  for  admission  of,  321. 
the  statute  of  frauds  does  not  stand  in  way,  322. 
grantor  not  estopped  to  show  character  of  conveyance,  323. 
what  facts  are  considered,  324. 
evidence  of  continuance  of  debt,  325. 
when  there  was  a  preexisting  debt,  326. 
when  application  was  for  a  loan,  327. 
continued  possession  of  grantor,  328. 
inadequacy  of  price,  329. 
strict  proof  required,  335. 

mortgagor  may  waive  his  rights  by  parol  agreement,  338. 
to  identify  note  secured,  71,  352. 

debt  may  be  shown  by  any  competent  evidence,  352  a. 
to  identify  future  advances,  367  a. 
to  fix  amount  secured  by  indemnity  mortgage,  384. 
that  an  assignment  was  intended  as  a  discharge,  861. 
does  not  affect  mortgagee's  lien  upon  residue,  722. 
effect  of  as  to  subsequent  purchasers,  723. 
eflTect  of  as  to  surety,  724,  726. 
PARTIAL  PAYMENTS,  provision  for,  79. 

application  of,  to  usurious  mortgage,  912. 
PARTIAL  RELEASE,  covenant  to  make,  effect  of,  79,  981. 

when  mortgagee  has  notice  of  subsequent  incumbrances,  982. 
PARTIES  to  a  mortgage,  description  of,  63. 
proper  contracting  parties,  101  a. 
who  may  make  a  mortgage,  102. 
mortgages  by  executors,  102  a. 
mortgages  by  guardians,  102  h. 

to  what  proceedings  mortgagee  an  essential  party,  709. 
To  a  hill  to  redeem,  1097-1103. 
PARTIES   TO   AN    EQUITABLE    SUIT   FOR    FORECLOSURE, 
general  principles,  1369. 

981 


INDEX. 

References  are  to  Sections. 
PARTIES  TO  AN  EQUITABLE  SUIT,  ETC.  —  continued. 
Proper  2)arties  plaintiff,  1368-1393. 

all  interested  in  mortgage  should  be,  1368. 
joinder  of  plaintiffs,  1369. 
real  party  in  interest,  1370. 
must  have  some  interest,  1371. 
assignee  by  informal  assignment,  1372. 
after  absolute  assignment,  1373. 
after  assignment  as  collateral,  1374. 
assignee  for  collateral  security,  1375. 
assignee  of  mortgage,  1375  a.  » 

assignee  of  mortgage  without  bond  or  note,  1376. 
assignee  of  mortgage  note,  1377. 
assignee  of  mortgagee  in  bankruptcy,  1377  a. 
holder  of  one  of  several  notes  secured,  1378. 
partner,  1379. 
surety,  1380. 
joint  mortgagee,  1381. 
survivor  of  joint  mortgagees,  1382. 
nominal  trustee,  1383. 
cestui  que  trust,  1384. 
bondholders,  1385. 
trustee  for  creditors,  1386. 

executor  or  administrator  of  mortgagee,  1387,  1388. 
foreign  executor  or  administrator,  1389. 
mortgage  to  executor,  1390. 
holder  of  two  or  more  mortgages,  1391. 
mortgage  to  person  in  official  capacity,  1392. 
wife  holding  mortgage  as  her  separate  property,  1393. 
Necessary  or  proper  parties  defendant,  1394-1442. 
general  principles,  1394. 

omission  of  party  in  interest  does  not  make  sale  void,  1395. 
all  persons  in  interest  should  be  joined,  1396. 
trustees  and  beneficiaries,  1397. 
when  beneficiaries  are  numerous,  1398. 
trustee,  1399. 
equitable  interest,  1400. 
remainder-men,  1401. 
mortgagor  a  necessary  party,  1402. 

when  he  retains  any  interest,  1403. 
when  not  a  necessary  party,  1404. 
when  he  has  conveyed  a  portion  of  the  premises,  1405. 
holder  of  equity  of  redemption  a  necessary  party,  1406. 
purchaser  who  has  assumed  a  mortgage,  1407. 
982 


INDEX. 

References  are  to  Sections. 
PARTIES  TO  AN  EQUITABLE  SUIT,  ETC.  — continued. 

mesne  purchaser,  1408. 

tenants  in  common,  1409. 

objection  to  non-joinder,  when  taken,  1410. 

purchaser  pende7ite  lite,  1411. 

when  deed  to  purchaser  has  not  been  recorded,  1412. 

a  mere  occupant,  1413. 

heirs  of  mortgagor,  1414,  1417. 

heir  of  purchaser,  1415. 

heirs  of  partner,  1416. 

devisees,  1418. 

legatees,  1419. 

mortgagor's  wife,  1420. 

when  wife  did  not  join  in  mortgage,  1421. 

when  there  is  no  dower,  1422. 

wife's  homestead,  1423. 

husband,  1424. 

all  subsequent  mortgagees,  1425. 

mortgagee  who  has  assigned  without  the  note,  142G. 

assignee  of  note,  1427. 

personal  representative  of  junior  mortgagee,  1428. 

parties  who  make  default  cannot  complain,  1429. 

junior  mortgagee  who  has  received  payment,  1430. 

redemption  only  remedy  of  one  not  made  a  party,  1431. 

joint  and  several  maker  of  note,  1431  a. 

guarantor  not  a  proper  party,  1432,  1433. 

indorser  of  note,  1434. 

cestui  que  trust  not  necessary  party  when   mortgage  given  by 
trustee,  1434  a. 

joint  mortgagees,  1435. 

judgment  creditors,  1436.  ' 

general  creditor,  1436  a. 

judgment  after  decree,  1437. 

bankruptcy  as  affecting,  1438. 

receiver  appointed  by  court,  1438  a. 

prior  parties  in  interest,  1439. 

adverse  claimants,  1440. 

priority  between  mortgages,  1441. 

new  parties,  1442. 

guardian  ad  litem  for  defendant  under  disability,  1442«. 

service  by  publication  on  unknown  mortgagor,  1442  Z». 
To  hill  for  strict  foreclosure,  1557. 

heirs  of  mortgagee  necessary  parties,  1559. 
PARTITION,  when  mortgagees  may  have,  705. 

983 


INDEX. 

References  are  to  Sections. 

PARTITION  —  continued. 

between  mortgagors,  when  mortgagee  bound  by,  706, 
in  case  of  a  mortgage  of  parcels  held  in  common,  706. 
PARTNERSHIP  REAL  ESTATE,  mortgage  of,  119-123. 
mortgage  by  one  partner  of  his  interest,  120. 
mortgage  by  one  partner  for  partnership  debt,  121. 
mortgage  of  private  property  for  partnership  debt,  122. 
foreclosure  sale  by  partners  by  advertisement,  135. 
mortgage  to  partnership  without  naming  partners,  135,  166. 
assignment  of  mortgage  by,  800. 
PART-OWNER  of  equity  of  redemption  may  redeem,  1063. 

of  assumed  mortgage  from  personal  estate,  751. 
PAYMENT,  produces  a  merger  when,  848-869. 

by  one  who  has  assumed  the  mortgage,  865. 

by  one  who  has  warranted  against  incumbrances,  867. 

by  purchaser  of  equity  of  redemption,  869. 

by  one  not  under  obligation  to  make  it  operates  as  subrogation,  877, 

by  mortgagee  for  his  own  protection  subrogates  him,  878. 

at  the  law  day  discharges  the  incumbrance,  886. 

and  revests  the  estate,  887. 
cannot  be  enforced  before  the  law  day,  888. 
after  condition  broken  does  not  revest  the  estate,  889. 
notice  of,  required  by  custom  in  England,  890,  1071. 

•  but  not  in  \his  country,  890. 
of  more  than  is  due  may  be  recovered,  903. 
Appropriation  of,  904-912. 
of  intention,  904. 

deposit  of  amount  without  appropriation,  905. 
debtor  may  appropriate  to  any  account,  906. 
when  presumed  to  be  made  on  mortgage  debt,  907. 
when  creditor  may  make  appropriation,  908. 
appropriation  binding  on  subsequent  incumbrancers,  908. 
what  is  a  sufficient  appropriation,  909. 
agreement  to  apply  in  discharge  of  portion  of  land,  909  a. 
proceeds  of  sale  must  be  applied  to  mortgage,  909  h. 
appropriation  of  insurance  money,  910. 
interest  to  be  paid  first,  911. 
upon  usurious  mortgage,  912. 
Presumption  and  evidence  of  payment,  913-918. 
from  possession  of  mortgage  note,  913. 
from  conduct  of  mortgagee,  913. 
presumption  of  payment  of  interest,  914. 
presumption  from  lapse  of  time,  915. 
presumption  from  shorter  period  than  twenty  years,  916. 
984 


INDEX. 

References  are  to  Sections. 

FAYMENT  —  co7itinued. 

is  a  question  of  fact,  917. 

iiidorsemeuts  are  admissions,  918. 
£y  accounting  as  administrator,  919-923. 

when  mortgagor  comes  into  possession  of  mortgage,  919. 

mortgagor's  dealing  with  the  mortgage,  920. 

purchase  of  mortgage  by  executor,  921. 

mortgagee  administrator  of  mortgagor's  estate,  922. 

bond  by  heir  to  pay  debt,  923. 
Changes  in  form  of  debt,  924-942. 

no  change  in  form  discharges,  924. 

new  note  not  a  discharge  as  to  subsequent  purchaser,  925. 

intention  generally  controls,  926. 

intention  a  question  of  fact,  926. 

substitution  of  another  note,  927. 

giving  up  of  bond  of  defeasance,  928, 

taking  further  security,  929. 

incorporating  additional  loan  in  new  note,  930. 

note  for  different  amount  payable  at  a  different  time,  931. 

new  note  for  interest,  932. 

consideration  of  new  note,  933. 

renewal  of  note  for  which  mortgage  is  indemnity,  934. 

dishonored  check  or  bill  of  exchange,  935. 

merger  in  judgment  does  not  extinguish,  936. 

judgment  for  a  portion  of  the  debt,  937. 

judgment  under  trustee  process,  938. 

proceedings  against  mortgagor  personally,  939. 

release  of  judgment,  940. 

failure  to  charge  in  dower,  941. 

extension  of  time  of  payment,  942. 
Revivor  of  mortgage,  943-949. 

mortgage  becomes  functus  officio  after,  943. 

when  the  rights  of  third  persons  have  not  intervened,  944. 

assignment  to  third  person  at  request  of  mortgagor,  945. 

redelivery  of  note,  946. 

same  formalities  necessary  as  in  first  instance,  946. 

verbal  agreement  to  continue  for  another  debt,  947 

as  against  other  parties  in  interest,  948. 

as  against  wife  when  she  is  surety,  949. 

foreclosure  opened  by  accepting  interest,  949  a. 
Foreclosure  does  not  constitute,  950-955. 

mortgagee  may  recover  any  balance,  950. 

whether  the  foreclosure  is  strict  or  not,  950. 

release  of  equity  of  redemption  to  mortgagee,  951. 

985 


INDEX. 

References  are  to  Sections. 

PAYMENT  —  continued. 

by  agreement  foreclosure  may  be  satisfaction,  951  a. 

when  foreclosure  is  by  entry  and  possession,  952. 

foreclosure  sale  is  payment  pro  tanto,  953. 

when  the  sale  is  voidable,  953. 

purchase  of  equity  by  mortgagee  on  execution,  954. 

purchase  under  tax  sale  by  mortgagor,  955. 
Who  may  receive  payment,  956-965. 

the  person  to  whom  the  debt  is  due,  956. 

note  or  bond  should  be  produced,  956. 

whether  subsequent  purchaser  can  rely  upon  discharge  of  record, 
956  a. 

discharge  by  person  not  entitled  to  make,  057. 

when  mortgage  is  held  by  two  or  more  jointly,  958. 

one  of  two  executors  may  receive,  959. 

trustees  must  generally  act  jointly,  959. 

one  holding  mortgage  as  "  trustee  "  may  receive,  959. 

whether  foreign  executor  can  make  valid  discharge,  960. 

an  assignee  of  mortgage  may  receive,  961. 

mortgagee  after  assignment  cannot  receive,  961. 

equitable  assignee  may  receive,  962. 

one  holding  mortgage  as  collateral  may  receive,  963. 

agency  inferred  from  possession  of  securities,  964. 

when  attorney  is  authorized  to  receive,  964. 

authority  of  agent  to  accept  payments,  964  a. 

public  corporation  bound  by  discharge  made  by  proper  officer, 
964  S. 

receiver  may  take  payment,  965. 
Discharge  by  release  or  of  record,  970-991. 

after  payment  mortgagee  holds  title  in  trust,  973. 

general  release  from  all  claims,  976. 

release  may  be  limited,  980. 

effect  of  partial  release,  982. 

personal  liability  may  be  released,  983. 

release  of  security  not  necessarily  a  release  of  the  debt,  984. 

release  wrongfully  obtained,  987. 
presumption  of  payment  after  twenty  years,  1192. 
presumption  of,  repelled  how,  1196-1202. 
discharges  both  lien  and  debt,  1219. 

foreclosure  by  entry  and  possession  is  Tpajmeut pro  tanto,  1264. 
a  defence  to  foreclosure,  1298. 
strict  foreclosure  does  not  work,  1567. 
from  proceeds  of  foreclosure  sale,  1682-1708. 
986 


INDEX. 

References  are  to  Sections. 

PENNSYLVANIA,  nature  of  a  mortgage  in,  48. 
authority  to  fill  blanks,  90. 
parol  evidence  to  show  a  mortgage,  312. 
mortgage  for  support,  how  regarded,  388. 
record  of  assignment  is  notice  in,  479. 
usury  in,  638. 

assignment  of  debt  passes  mortgage  in,  817. 
entry  of  satisfaction  of  record,  1026. 
redemption  after  foreclosure,  1051,  1355. 
statute  of  limitations,  twenty-one  years,  1143. 
statutory  provisions  relating  to  foreclosure,  1355. 
power  of  sale  mortgages  and  trust  deeds  in,  1755. 
PLEADINGS  AND  PRACTICE,  in  bills  to  redeem,  1093,  1113. 
in  writ  of  entry  to  foreclose,  1293-1295. 
in  equitable  suit  to  foreclose,  1451-1515. 
POSSESSION  of  mortgagor,  bow  far  notice,  255. 
in  general,  how  far  notice,  600. 
temporary  or  equivocal,  not  notice,  601. 
Mortgagor  s  right  of,  80,  664, 

as  against  mortgagee,  667. 

may  be  implied,  668. 

modified  by  statute,  669. 

not  adverse  to  mortgagee,  672. 

remedy  to  recover  of  mortgagee,  673. 
when  mortgagee  entitled  to,  702,  703. 
mortgagee  cannot  before  payment  be  divested  of,  715. 
mortgagee  obtaining,  may  retain,  716. 

otherwise  in  Michigan,  717. 
mortgagee  may  maintain  writ  of  entry  for,  718. 
of  mortgagor  does  not  prevent  assignment,  789. 
of  mortgagor  presumed  to  be  subordinate,  1211. 
delivery  of  under  decree  of  strict  foreclosure,  1562. 
delivery  of  to  purchaser  under  foreclosure  sale,  1663-1667. 
POWER  OF  ATTORNEY  to  execute  a  mortgage,  129. 

whether  general  power  authorizes  power  of  sale  mortgage,  129. 
how  exercised  in  making  a  mortgage,  130. 
requirement  that  power  be  recorded,  512, 
when  it  operates  as  an  assignment  of  mortgage,  816. 
POWER  OF  SALE  IN  MORTGAGES  AND  TRUST  DEEDS, 
may  be  conferred  by  statute,  61. 

whether  authorized  under  a  general  power  to  mortgage,  129. 
passes  by  an  equitable  assignment  of  mortgage,  826. 
need  not  be  exercised  before  suit  for  debt,  1221. 
Statutory  provisions  concerning,  1722-1763. 

987 


INDEX. 

References  are  to  Sections. 
POWER  OF  SALE  IN  MORTGAGES,  ETC.  —  continued. 
statutory  power  of  sale  in  England,  1722. 

in  Virginia,  1722. 
provisions  in  the  several  States,  1723-1763. 
Nature  and  use  of  powers  of  sale,  1764-1772. 

advantages  over  foreclosure  in  equity,  1764. 
validity  of,  questioned  in  early  cases,  1765. 
regarded  in  England  as  a  necessary  incident,  1766. 
when  first  used  in  this  country,  1767. 
whether  a  necessary  incident  of  a  mortgage,  1768. 
deeds  of  trust  in  legal  effect  mortgages,  1769. 

why  preferred  by  some,  1770. 

trustee  in,  is  agent  of  both  parties,  1771. 

debt  belongs  to  beneficiary,  1772. 
Power  of  sale  a  cumulative  remedy,  1773-1776. 

does  not  exclude  foreclosure  in  equity,  etc.  1773. 
court  of  equity  may  enforce  trust  deed,  1774. 
sale  is  by  virtue  of  the  power,  not  of  the  decree,  1775. 
when  debt  is  unliquidated,  1776. 
Construction  of  power,  1777-1791. 

power  may  be  in  form  of  power  of  attorney,  1777. 

parties  may  make  such  regulations  as  they  desire,  1778. 

what  is  a  sufficient  power,  1779. 

acceptance  of  trust,  1780. 

obvious  error  on  face  of  power,  1781. 

prior  entry  when  necessary,  1782. 

prior  entry  doQS  not  prevent  sale,  1783. 

record  of  mortgage  or  power,  1784. 

who  may  exercise  power,  1785. 

may  be  executed  by  administrator  of  mortgagee,  1786. 

legal  assignment  of  mortgage  passes  the  power,  1787. 

otherwise  with  deed  of  trust,  1788. 
equitable  assignee  cannot  execute  power,  1789. 
power  to  two  or  more  jointly  must  be  executed  by  all,  1790. 
a  first  and  second  mortgagee  may  concur  in  sale,  1791. 
Revocation  and  suspension  of  power,  1792-1800. 
death  of  mortgagor  does  not  revoke,  1792. 
power  is  coupled  with  an  interest,  1792. 
insanity  of  mortgagor  does  not  revoke,  1793. 

rule  the  same  where  mortgage  a  mere  security,  1794. 
may  be  modified  and  extended  without  revoking,  1795. 
conveyance  by  mortgagee  of  part  of  premises,  1796. 
pendency  of  bill  to  redeem  does  not  suspend,  1797. 
tender  after  breach  does  not  defeat,  1798. 
988 


INDEX. 

References  are  to  Sections. 

POWER  OF  SALE  IN  MORTGAGES, ^TC  —  conimwerf. 

rule  in  England  as  to,  1799. 
rule  in  New  York  as  to,  1799. 

payment  does  not  prevent  sale,  1799. 

not  suspended  when  mortgagor  within  lines  of  enemy,  1800. 
When  the  exercise  of  the  power  may  be  enjoined,  1801-1820. 

a  legitimate  exercise  of  the  power  cannot  be  enjoined,  1801. 

exercise  of  power  at  request  of  mortgagor,  1802. 

use  of  the  power  to  obtain  an  unfair  advantage,  1803. 

grounds  of  interference  must  be  alleged,  1804. 

petitioner's  rights  must  be  clear,  1805. 

payment  must  be  tendered,  1806. 

■when  mortgage  was  void  in  its  inception,  1807. 

on  account  of  usury,  1808. 

of  unconscionable  penalty  or  interest,  1809. 

want  of  notice  of  sale  no  ground  for  enjoining,  1810. 

not  to  allow  set-off,  1811. 

not  to  allow  time  for  contribution  to  redeem,  1812. 

when  amount  of  debt  is  in  dispute,  1813. 

purchaser  subject  to  mortgage  ignorant  of  power  in  it,  1814. 

clouding  title,  1815. 

insolvency  of  trustee  no  ground,  1816. 

scarcity  of  money  or  business  depression  no  ground,  1817. 

appointment  of  referee  to  act  with  mortgagee,  1818. 

recovery  of  money  paid  under  duress,  1819. 

mortgagee's  damages  and  costs  when  wrongly  enjoined,  1820. 
Personal  notice  of  sale,  1821-1827. 

no  notice  necessary  unless  made  so  by  statute  or  deed,  1821. 

all  essential  requisites  of  power  must  be  complied  with,  1822. 

when  mortgagor  is  under  disability,  1823. 

mortgagor  cannot  waive  notice  for  others,  1824. 

promise  of  mortgagee,  not  to  sell  without  notice,  1825. 
ground  for  setting  aside  sale,  1826. 

burden  of  proof  as  to  notice,  1827. 
Publication  of  notice,  1828-1838. 

for  a  certain  time  in  newspaper  usually  required,  1828. 

statutes  do  not  apply  beyond  the  States  enacting  them,  1829. 

fairness  in  giving  notice  required,  18S0. 

notice  published  before  default  ineffectual,  1831. 

assignment  of  mortgage  during  time  of  advertisement,  1832. 

change  of  statute  as  to  length  of  notice,  1833. 

how  long  after  publication  sale  may  be,  1834. 

selection  of  newspaper,  1835. 

publication  in  two  counties,  1836. 

989 


INDEX. 

References  are  to  Sections. 
POWER  OF  SALE  IN  MORTGAGES,  ETC.  — contijiued. 
posting  in  public  places,  1837. 
length  of  time  of  publication,  1838. 
once  a  week  for  three  successive  weeks,  1838. 
What  the  notice  should  contain,  1839-1856. 

should  fully  comply  with  the  terms  of  power,  1839. 

must  describe  the  premises,  1840. 

description  by  reference  to  plan,  1840. 

distinct  lots  should  be  described  separately,  1841. 

short  and  incomplete  description,  1842. 

must  show  who  orders  the  sale,  1843. 

need  not  name  owners  of  equity  of  redemption,  1844. 

must  specify  time  and  place  of  sale,  1845. 

discretion  as  to  the  time,  place,  and  terms  of  sale,  1840. 

day  of  sale  fixed  for  Sunday,  1847. 

sale  at  ruins  of  court-house  in  Chicago,  1848. 

sale  at  temporary  court-house,  1849. 

sale  at  city  hall,  1850. 

mistake  in  advertisement,  1851. 

misleading  notices,  1852. 

change  in  time  appointed  for  sale,  1852. 

sale  of  equity  of  redemption,  1853. 

unimportant  omissions,  1854. 

statement  of  the  amount  claimed,  1855. 

amount  of  prior  mortgage  need  not  be  stated,  1856. 
Sale  in  parcels,  1857-1860. 

no  obligation  except  under  statutes  and  special  equities,  1857. 

when  sale  of  property  entire  not  justified,  1858. 

when  trustee  should  sell  in  parcels,  1859. 

sale  of  sufficient  only  to  pay  the  debt,  1860. 
Conduct  of  sale,  terms,  and  adjournment,  1861-1875. 

mortgagee  may  act  by  attorney,  1861. 

need  not  be  personally  present,  1861. 

trustee  under  deed  of  trust  should  be  present,  1862. 

when  sale  may  be  had,  1863. 

terms  of  sale,  1864. 

acquiescence  of  mortgagor  in  conduct  of  sale,  1865. 

payment  at  time  of  sale,  1866. 

time  for  examination  of  title,  1867. 

giving  credit,  1868. 

when  terms  of  sale  not  prescribed  by  power,  1869. 

when  mortgagee  may  use  his  discretion,  1870. 

mortgagee  may  give  credit,  taking  the  risk  himself,  1871. 

when  mortgagee  authorized  to  sell  for  cash  or  credit,  1872. 
990 


INDEX. 

-References  are  to  Sections. 
POWER  OF  SALE  IN  MORTGAGES,  ETC.  —  continued. 
adjournment,  1873.  , 

notice  of  adjournment,  1874. 

no  obligation  to  delay  sale  to  more  favorable  time,  1875. 
Who  may  purchase  at  sale,  1876-18<%. 

mortgagee  not  allowed  to  purchase,  1876. 
not  necessary  to  show  fraud  in  mortgagor's  purchase,  1877. 
rule  applies  to  mortgagee's  solicitor,  1878. 
mortgagee's  agent,  1879. 
trustee  in  deed  of  trust  cannot  buy,  1880. 
•  less  strictness  in  case  of  mortgagee,  1881. 

no  restraint  when  sale  is  by  judicial  process,  1882. 
express  provision  that  mortgagee  may  purchase,  1883. 
rule  has  no  application  to  subsequent  mortgagee,  1884. 
right  to  avoid  sale  waived  by  delay,  1885. 
right  lost  after  transfer  to  bond  fide  purchaser,  1886. 
mortgagor  may  purchase,  1887. 
mortgagor's  wife  may  purchase,  1888. 
Deed  and  title,  1889-1903. 

holder  of  legal  title  should  make  deed,  1889. 
married  woman  may  make  deed,  1890. 
deed  in  name  of  mortgagor  or  mortgagee,  1891. 
mortgagee  purchasing  may  deed  to  himself,  1892. 

no  deed  required  in  New  York,  1893. 
title  passes  by  delivery  of  deed,  1894. 
deed  not  evidence  of  recitals  in  it,  1895. 
deed  to  person  other  than  purchaser,  1896. 
purchaser  takes  divested  of  subsequent  incumbrances,  1897. 
bond  fide  purchaser  acquires  valid  title,  1898. 

though  mortgage  has  been  paid,  1898. 
title  not  affected  by  prior  agreements  of  parties,  1899. 
in  England  not  bound  to  inquire  as  to  regularity  of  sale,  1900. 
mortgagor's  covenant  for  further  conveyance,  1901. 
invalid  sale  operates  as  assignment,  1902. 
remedy  against  purchaser  declining  to  complete  sale.  1903. 
The  affidavit,  1904,  1905. 

neglect  to  file  does  not  invalidate  sale,  1904. 
what  is  requisite  to  make  it  presumptive  evidence,  1905. 
Setting  aside  and  waiving  sale,  1906-1922. 

fairness  in  the  exercise  of  the  power  required,  1906. 
whether  sale  void  or  voidable,  1907. 
without  leave  of  bankrupt  court,  1908. 
allowing  property  to  be  sacrificed,  1909. 
avoided  by  secret  arrangement  to  prevent  competition,  1910. 

991 


INDEX. 

References  are  to  Sections. 
POWER  OF  SALE  IN  MORTGAGES,  ETC.  -  continued. 

fraud  or  deception  practised  upon  owner,  1911. 

conduct  of  purchaser  at  sale,  1912. 

purchaser  knowing  of  circumstances  invalidating,  1913. 

purchase  by  agent  without  authority,  1914. 

mere  inadequacy  of  price  not  alone  ground  for,  1915. 

waived  by  extinguishing  time  of  redemption,  1916. 

promise  to  allow  mortgagor  to  repurchase,  1917. 

suit  for  second  instalment  does  not  open,  1918. 

subsequent  entry  to  foreclose  does  not  open,  1919. 

waived  by  agreement,  1920.  & 

relief  must  be  sought  in  equity,  1921. 

delay  in  seeking  relief,  1922. 
Costs  and  expenses,  1923-1926. 

mortgagee  not  generally  entitled  to  compensation,  1923. 

reasonable  expenses  incurred  in  advertising,  1924. 

expense  for  legal  advice,  1925. 

costs  under  sale  by  order  of  court  in  bankruptcy,  1926. 
The  surplus,  1927-1939. 

generally  mortgage  provides  for  disposal  of,  1927. 

not  chargeable  with  interest  when  unproductive,  1928. 

must  be  applied  according  to  title,  1929. 

notice  of  claims  to,  1930. 

whether  heir  or  administrator  entitled  to,  1931. 

in  case  of  bankruptcy,  1932. 

dower  in  surplus,  1933. 

when  equity  attached  or  sold  on  execution,  1934. 

judgment  lien  upon,  1935. 

when  mortgagor  has  conveyed  part,  1935. 

when  mortgage  debt  charged  on  portion  of  premises,  1936. 

payment  of  whole  debt  on  sale  for  instalment,  1937. 

when  only  part  of  debt  has  matured,  1938. 

rights  determined  in  suit  for  money  had  and  received,  1939. 
Judgment  for  deficiency  after  sale,  1227. 
POWER  TO  MORTGAGE,  a  power  to  sell  does  not  iuclude,  129. 

includes  power  to  make  mortgage  in  usual  terms,  129. 

mode  of  exercising,  120. 
PRACTICE.     (See  Pleading  and  Practice.) 
PREEMPTOR  of  public  land  cannot  mortgage,  177. 
PREEXISTING  DEBT,  mortgagee  for,  not  a  purchaser,  460. 
PREFERENCE,  mortgage  given  in,  contrary  to  law,  629. 
PRESUMPTION  OF  PAYMENT.     (See  Payment,  913-918.) 
PRIOR  INCUMBRANCERS  cannot  properly  be  made  parties  to  fore- 
closure suit,  1439,  1445,  1474,  1589. 
992 


INDEX. 

References  are  to  Sections. 
PRIORITY  by  registration,  456-537. 

once  gained  cannot  be  lost,  525. 

though  record  be  destroyed,  526. 

as  affected  by  notice,  538-542. 

doctrine  in  this  country,  538,  539. 

as  affected  by  fraudulent  concealment  of  incumbrance,  602. 
by  fraud  inducing  one  to  purchase  as  unincumbered,  603. 

as  affected  by  negligence,  604-606. 

as  between  holders  of  several  notes  secured,  606,  1699,  193!». 

as  between  individual  and  partnership  mortgages,  606. 

as  between  simultaneous  mortgages,  606. 

as  between  unrecorded  mortgages,  607. 

between  several  mortgages  executed  at  same  time,  607  a. 

agreements  fixing  priority,  608. 

over  mechanic's  lien,  487,  609. 

of  assignee  of  one  note,  822. 

between  mortgages  may  be  settled  in  foreclosure  suit,  1441. 

questions  of,  when  to  be  settled,  1611. 

between  holders  of  several  notes,  1699-1707,  1939. 

note  first  maturing  entitled  to,  1699. 

whether  priority  of  assignment  gives,  1701. 

may  be  fixed  by  agreement,  1702. 

when  whole  debt  becomes  due  upon  any  default,  1703. 

when  mortgage  secures  debts  due  to  different  persons,  1705. 

rights  of  sureties,  1706. 
PROMISSORY  NOTE,  not  subject  to  equities  in  hands  of  assignee,  837. 

otherwise  when  overdue,  841. 
PROOF  of  note  in  foreclosure  suit,  1470. 
PURCHASE-MONEY  MORTGAGE,  priority  over  judgments,  468,  469. 

has  priority  of  dower  and  homestead  rights,  466. 

simultaneous  mortgages  for,  567,  568. 

defence  of  outstanding  title,  1500. 

defence  is  founded  on  the  covenants,  1501. 

eviction  necessary  before  defence  will  avail,  1502. 

exceptional  cases,  1503. 

breach  of  covenant  of  seisin  in,  1504. 

breach  of  independent  covenant  in,  1505. 

when  sale  was  effected  by  vendor's  fraud,  1506. 

assignee  before  due  not  subject  to  this  default,  1507. 

application  of  proceeds  to  prior  incumbrance,  1698. 
PURCIIASP^R,  a  mortgagee  is,  within  recording  acts,  456,  710. 

a  mortgagee  for  antecedent  debt,  460. 

a  judgmeiit  creditor  is  not,  462. 

may  rely  upon  title  as  it  appears  of  record,  514. 
VOL.  II.  63  993 


INDEX. 

References  are  to  Sections. 
riJRCHASER— continued. 

of  timber  from  mortgagor  wrongfully  cut,  689. 
mortgagee  may  be,  of  equity  of  redemption,  711,  712. 
Of  the  equity  of  redemption,  his  rights  and  liabilities,  735-770. 

importance  of  reference  to  mortgage,  735. 

by  deed  without  covenants,  736. 

expressly  subject  to  mortgage,  736. 

not  entitled  to  collateral  security,  737. 

when  not  personally  liable  for  debt,  738. 

of  paramount  title,  739. 

assumption  of  mortgage  by,  740. 

identity  of  the  mortgage  assumed,  740  a. 

trustee  assuming  mortgage,  740  b. 

mortgagor  becomes  surety  to,  741. 

extension,  when  discharges  mortgagor,  742. 

assumption  of  proportionate  part  by,  743. 

cannot  defend  against  mortgage  assumed,  744. 

cannot  set  up  usury,  745. 

when  purchaser  may  contest  mortgage,  746. 

purchase  under  execution,  747. 

grantor's  agreement  to  assume,  747  a. 
2*ersonal  liability  of  purchaser,  748-770. 

none  under  deed  merely  subject  to  mortgage,  748. 

under  agreement  to  pay  the  mortgage,  749. 

under  verbal  promise  to  assume,  750. 

when  bound  to  indemnify  mortgagor,  751. 

bound  by  accepting  deed,  752. 

when  acceptance  implied,  752. 

married  woman  assuming,  753. 

what  will  avoid  liability,  754. 

how  mortgagee  may  take  advantage  of  agreement,  755. 

junior  mortgagee  assuming  not  liable,  756. 

assumption  in  absolute  deed  which  is  in  fact  a  mortgage,  757 

promise  for  benefit  of  mortgagee,  758. 

mortgagee  may  sue  on  promise  without  foreclosure,  759. 

though  grantor  himself  not  liable  for  the  debt,  760. 

promise  must  be  express,  761. 

a  doctrine  of  equity  not  of  law,  761  a. 

mortgagee's  rights  are  in  equity  not  at  law,  761  b. 

mortgagee  cannot  sue  in  name  of  mortgagor,  761  c, 

doctrine  of  New  York  courts  not  adopted  elsewhere,  762. 

whether  grantor  can  release  purchaser,  763. 

when  he  may  release  purchaser,  764. 

condition  that  grantee  pay  mortgage,  765. 
994 


INDEX. 

References  are  to  Sections. 
PrRCHASER  -  continued. 

when  purcliaser  entitled  to  a  release,  767. 

remedy  of  grantor  against,  768. 

contract   to   pay  mortgage  enforced  before   promisee  has  paid, 

769. 
measure  of  damages  in  action  by  grantor  against,  770. 
may  redeem,  1061. 
assuming  mortgage  cannot  set  up  statute  of  limitations,  1201. 
has  no  greater  rights  against  mortgagee  than  mortgagor  had,  1202. 
■pendente  lite  need  not  be  made  party  to  foreclosure  suit,  1411. 
subject  to  mortgage  cannot  defend  against  it,  1491. 
rights  under  foreclosure  sale,  1642-1681. 

RAILROAD  COMPANY,  limitation  of  power  to  mortgage,  124,  125. 
when  mortgage  covers  after-acquired  property  of,  152,  154. 
after-acquired  property  not  essential  to  its  business,  156. 
after-acquired  property  passes  without  special  mention,  157. 
mortgage  of  future  earnings  of,  159. 
mortgage  does  not  cover  corporate  existence,  161. 
rolling  stock  of,  whether  covered  by  mortgage,  452. 
RATIFICATION  of  mortgage  irregularly  executed,  93. 

by  infant  mortgagor  on  coming  of  age,  105. 
RECEIVER  may  discharge  mortgage,  956. 

When  a  receiver  will  he  appointed,  1516-1534. 

general  principles,  1516. 

when  appointed  on  application  of  mortgagor,  1517. 

appropriate  under  leasehold  mortgages,  1518. 

English  rule  as  to  appointment  of,  1519. 

rule  in  the  United  States,  1520, 

rule  in  New  York  and  other  States,  1521. 

statutory  provisions  in  several  States,  1522. 

when  subsequent  mortgagee  may  obtain  appointment,  1523. 

consent  of  prior  mortgagee,  1524. 

prior  mortgagee's  right  of  possession,  1525. 

when  application  may  be  made,  1526. 

defences  to  application,  1527. 

application  must  show  defendant  in  possession,  1528. 

must  show  amount  of  mortgage  debt,  1529. 

mortgage  must  be  due,  1530. 

bill  must  be  pending,  1531. 

appointed  after  foreclosure  to  protect  rents,  1531  a. 

security  must  be  inadequate  and  mortgagor  insolvent,  1532. 

additional  grounds,  153  3. 

criterion  of  adequacy,  1534. 

995 


INDEX. 

References  are  to  Sections. 

KEC'EIVER  —  continued. 

Duties  and  power  of  receiver,  1535-1537. 

represents  all  parties  in  interest,  1535. 
his  possession  is  that  of  the  court,  1535. 
his  claim  to  rents,  1536. 
payment  discharges,  1537. 

whether  mortgagee  responsible  for  default  of  receiver,  1537  <i. 
KECITAL  in  other  instruments,  notice  by,  574. 
in  deed,  notice  by,  575. 

in  mortgage,  of  mortgagor's  indebtedness,  effect  of,  677,  678. 
iRECORD.     (See  Registration.) 
of  separate  defeasance,  253. 

notice  furnished  by  the  record,  254. 
not  to  be  relied  upon  as  showing  merger,  872. 
when  averment  of  necessary,  1465. 
REDELIVERY  of  mortgage  for  a  new  obligation,  362. 
KEDEMPTIOJSi,  provisions  restraining,  6. 

mortgagor  cannot  renounce  beforehand,  251. 
of  mortgage  in  form  of  absolute  deed,  342. 

release  of  right  by  parol  when  mortgage  is  an  absolute  deed,  711. 
A  necessary  incident  of  a  mortgage,  1038-1046. 
express  stipulation  not  to  redeem,  1039. 
time  of  may  be  postponed,  1040. 
agreement  to  confine  to  a  particular  person,  1041. 
any  agreement  which  is  an  evasion  of,  1042. 
agreement  not  to  redeem  after  a  certain  day,  1043. 
mortgagee  not  allowed  torf)btain  an  advantage,  1044. 
subsequent  agreement  against,  1045. 
after  release  improperly  obtained,  1046. 
Circumstances  affecting,  1047-1051. 

barred  by  foreclosure  properly  made,  1047. 

mortgagee  recognizing  mortgage  after  foreclosure,  1047  a. 

after  imperfect  foreclosure,  1048,  1680. 

mortgagor  estopped  by  his  own  acts,  1049. 

of  one  only  of  several  mortgages,  1050. 

after  foreclosure  sale,  1051. 

given  by  statute  is  a  rule  of  property,  1051. 

right  given  by  statute  is  a  rule  of  property  in  United   States 

courts,  1051  a. 
right  of  possession  during  period  of  redemption  remains  with 

mortgagor,  1051  b. 
by  purchaser  of  the  equity  of  redemption,  1051  c. 
When  it  mag  be  made,  1052-1054. 

not  till  mortgage  is  due,  1052. 
996 


INDEX. 

References  are  to  Sections. 

REDEMPTION  —  continued. 

when  time  has  been  extended,  1053.     " 

when  advantage  taken  of  irregular  foreclosure,  1054. 
Who  may  redeem.,  1055-1069. 

any  party  in  interest,  1055. 

must  have  an  interest  derived  through  the  mortgagor,  1055  a. 

a  mortgagor  who  has  conveyed  the  equity,  1056. 

a  mortgagor  after  foreclosure  by  junior  mortgagee,  1057. 

under  a  mortgage  for  support,  1058. 

holder  of  mere  equitable  title,  1059. 

grantor  by  an  absolute  deed,  1060. 

purchaser  of  equity  of  redemption,  1061. 

heir  at  law  or  devisee,  1062. 

part  owner  of  equity  of  redemption,  1063. 

subsequent  mortgagee,  1064. 

as  between  several  persons  entitled  to  redeem,  1064. 

tenant  for  life,  or  in  tail,  1065. 

tenant  for  years,  1066. 

dowress  who  has  released  in  the  deed,  1067. 

tenant  by  the  curtesy,  1067. 

holder  of  homestead  estate,  1067. 

a  surety  of  the  debt,  1068. 

a  judgment  creditor,  1069. 

an  attaching  creditor,  1069. 
^^l^m  payable  to  effect  it,  1070-1088. 

payment  of  the  amount  due,  a  condition,  1070. 

notice  of  payment,  1071. 

must  be  of  entire  debt,  1072. 

after  bankruptcy,  1073. 

when  part  of  premises  has  been  foreclosed,  1074. 

after  a  foreclosure  sale,  1075. 

special  exceptions,  1076. 

when  part  only  of  debt  is  due,  1077. 

when  whole  debt  becomes  due  on  any  default,  1078. 

further  advances,  1079. 

prior  incumbrance  paid  by  mortgagee,  1080. 

payment  of  other  claims  cannot  be  made  a  condition,  1081. 

English  doctrine  of  tacking,  1082. 

consolidating  mortgages,  1083. 

costs  of  previous  foreclosure,  1084. 

overpayment  to  prevent  foreclosure,  1085. 

mortgagee  cannot  be  compelled  to  assign,  1086. 
otherwise  in  New  York,  1087. 

tender  after  breach  of  condition,  1088. 

997 


INDEX. 

References  are  to  Sections. 
REDEM-PTIO-N  —  co7itinued. 

Contribution  to  redeem,  1089-1092. 

test  of  the  right  to  claim,  1089. 
the  general  rule  as  to,  1090. 

when  the  mortgagor  retains  part  of  the  premises,  1091. 
portions  sold  chargeable  in  inverse  order,  1092. 
Pleadings  and  practice  on  bills  for,  1093-1113. 

bill  should  conform  to  general  principles  of  pleading,  1094. 
bill  must  tender  amount  due,  1095. 
after  payment  in  full,  1096, 
the  parties,  1097. 
proper  parties  plaintiff,  1098. 
heir  of  mortgagor,  1099. 

trustees  who  hold  equity  of  redemption,  1099. 
the  parties  defendant,  1100. 
after  death  of  mortgagee,  1101. 
when  junior  mortgagee  seeks  to  redeem,  1102. 
holder  of  note  without  mortgage,  1103. 
reference  to  state  account,  1104. 
defences,  1105. 
the  decree,  1106. 

decree  should  fix  time  for  redemption,  1 107. 
failure  to  pay  decree  works  foreclosure,  1108,  1566. 
decree  opened  by  mortgagee's  agreements  or  acts,  1108  a. 
abandonment  of  suit,  1109. 
effect  of  redemption,  1110. 
general  rule  as  to  costs,  1111. 

costs  of  suit  brought  without  previous  tender,  1112. 
costs  after  refusal  of  tender,  1113. 
When  right  of  is  barred,  1144-1173. 

statute  of  limitations  applies  by  analogy,  1144. 
time  conforms  to  statute  in  force,  1145. 
redemption  and  foreclosure  reciprocal,  1146. 
right  barred  in  ten  years  in  New  York  and  Wisconsin,  1147, 
in  Tennessee  statute  does  not  apply,  1148. 
When  the  statute  begins  to  run  against,  1152—1161. 

not  while  relation  of  mortgagor  and  mortgagee  exists,  1152. 
under  a  Welsh  mortgage,  1158. 
possession  runs  against  remainder-men,  1154, 
when  mortgagee  retains  possession  of  part,  1155. 
cause  of  action  accrues  when  mortgagee  enters,  1156. 
twenty  years'  possession  presumed  to  be  a  bar,  1157. 
mere  constructive  possession  not  sufficient,  1158. 
when  notice  to  mortgagor  necessary,  1159. 
998 


INDEX. 

References  are  to  Sections. 

REDE^JFTIO^— continued. 

when  right  to  redeem  junior  mortgage  accrues,  1160. 

statute  runs  from  expiration  of  year  of  redemption,  1161. 
What  prevents  the  running  of  the  statute  against,  1162-1173. 

acknowledgment  of  right,  1162. 

acknowledgment  after  twenty  years,  1163. 

acknowledgment  to  third  person,  1164. 

acknowledgment  binding  upon  all  under  mortgagee,  1165. 

rendering  an  account,  1166. 

acknowledgment  by  letter,  1167. 

assignment  of  mortgage,  1168. 

recital  of  mortgage  in  deed,  1169. 

proceedings  to  enforce  lien  or  debt,  1170. 

verbal  acknowledgment,  1171. 

when  mortgagee  is  mortgagor's  attorney,  1171  a. 

filing  of  bill  to  redeem  stops  running  of  statute,  1172. 

how  statute  may  be  pleaded,  1173. 
Time  allowed  for,  after  decree  of  strict  foreclosure,  1565. 

none  allowed  after  decree  of  sale,  1586. 
from  irregular  foreclosure  sale,  1680. 
REFERENCE,  to  state  account  upon  redemption,  1104. 
to  state  amount  of  debt,  1467. 
as  to  title  of  premises  sold  under  decree,  1648. 
as  to  rights  of  claimants  to  surplus,  1685,  1686. 
REFORMATION  of  a  mortgage,  65,  66,  67,  97. 
who  may  obtain,  98. 
against  whom  it  may  be  had,  99. 
relates  back  to  date,  99. 
of  description  in  foreclosure  suit,  1464. 
REGISTRATION,  7iature  and  application  of  laws  for,  456-487. 
statutes  of  the  several  States,  456,  457. 
mortgages  in  some  States  recorded  in  separate  books,  457. 
record  to  be  made  within  specified  time,  458. 
mortgagee  a  purchaser  within  the  acts,  459. 

otherwise  in  some  States  when  mortgage  secures  preexisting  debt,  460. 
giving  further  time  to  pay  preexisting  debt,  461. 
judgment  creditor  not  a  purchaser,  462. 
priority  as  between  mortgage  and  judgment,  463. 
unrecorded  mortgage  preferred  to  judgment,  464. 

reverse  rule  in  some  States,  465. 
knowledge  of  unrecorded  mortgage  affects  creditor,  466. 
purchaser  at  execution  sale  without  notice,  467. 
purchase-money  mortgage,  468. 
must  be  executed  simultaneously  with  deed,  469. 

999 


INDEX. 

References  are  to  Sections. 

REGISTRATION  —  continued. 

excludes  any  lien  arising  through  mortgagor,  470. 
excludes  mortgage  made  by  purchaser  before  purchase-money  mort- 
gage, 471. 
may  be  made  to  third  person,  472. 
deed  and  mortgage  must  be  one  transaction,  473. 
not  necessary  against  mortgagor  and  heirs,  474. 

or  assignee  of  bankrupt,  475. 
equitable  mortgages  within  the  acts,  476,  477. 
mortgages  of  leasehold  estates,  478. 
acts  apply  to  assignments,  479. 

statutory  provisions  as  to,  480. 
eflfect  of  recording  assignment,  481. 
assignee  a  purchaser,  482. 
priority  between  assignees,  483. 
manner  of  recording,  484. 
acts  apply  to  agreements  affecting  mortgagees,  485. 
acts  apply  to  mortgages  of  crops,  486. 
effect  of  mechanics'  liens  on  priority,  487. 
Jieguisites  as  to  execution  of  mortgages,  488-503. 
due  execution,  488. 
description  of  property,  489. 
apparent  error  in  description,  490. 
signing,  491. 
sealing,  492. 

seal  not  to  be  copied,  493. 
witnessing,  494. 
acknowledgment  or  proof,  495. 
qualification  of  officer,  496. 
ministerial  act,  497. 
certificate  of  official  character,  498. 

personal  acquaintance,  499. 
certificate  not  conclusive,  500. 
delivery  necessary,  501. 
subsequent  delivery,  502. 

when  subsequent  delivery  becomes  operative,  503. 
Requisites  as  to  time  and  manner  of,  504-514. 
notice  from  time  of  filing  deed,  505. 

by  depositing  with  person  in  charge  of  registration  office, 

505. 
payment  of  recording  fees  not  a  prerequisite,  506. 
schedule,  memorandum,  or  map  annexed,  507. 
certificate  of  register  conclusive  of  time,  508. 
after  death  of  mortgagor,  509. 
1000 


INDEX. 

References  are  to  Sections. 

KEGISTRATION  —  continued. 

must  be  made  in  the  proper  registry  district,  510. 
in  books  kept  for  mortgages,  511. 
requirement  of  as  to  power  of  attorney,  512. 
of  separate  defeasance,  513., 

purchaser  may  i-ely  upon  title  that  appears  of  record,  514. 
Errors  of,  515-522. 

defective,  not  notice,  515. 

errors  in,  do  not  affect  third  persons,  516. 

exception  under  statutes,  517. 
index  no  part  of,  518. 
damages  for  errors  in  index,  519. 
errors  in  descriptive  index,  520. 
register  may  connect  error  in  record,  521. 
mortgage  defectively  recorded  an  equitable  lien,  522. 
Effect  of  duly  made,  523-537. 
record  is  constructive  notice,  523. 
is  notice  of  all  the  contents  of  the  deed,  524. 
priority  once  gained  cannot  be  lost,  525. 

though  record  be  destroyed,  526. 
purchaser  without  notice  not  affected  by  unrecorded  mortgage,  527. 
after-acquired  title,  528,  520. 

deeds  recorded  subsequent  to  the  mortgage  not  notice,  530. 
is  notice  of  the  amount  specified  in  mortgage,  531. 
of  extension  of  mortgage,  532. 
is  notice  of  lien  at  rate  of  interest  specified,  533. 
acts  do  not  apply  to  simultaneous  mortgages,  534. 
of  simultaneous  mortgages  for  purchase-money,  535,  536. 
English  doctrine  of  tacking  does  not  apply,  537. 
Notice  as  affecting  -priority  hy,  538-609. 
policy  of  admitting  notice  to  affect,  538. 
doctrine  of  notice  as  affecting,  538,  539. 
when  title  of  prior  mortgagee  affected  by  record,  540. 
examination  of  records,  541. 
no  allegation  of  necessary  for  foreclosure,  1465. 
whether  required  before  exercise  of  power  of  sale,  1784. 
RELEASE.     (See  Discharge.) 
provision  for  partial,  79. 

of  mortgagor's  equity  by  parol  when  mortgage  is  by  absolute  deed, 
711. 
KELIGIOUS  CORPORATION,  power  to  mortgage,  126. 
REiMAINDP]R-MEN  need  not  be  made  parties  to  foreclosure  suit,  1401. 
IvKMP^DIES  against  purchaser  who  has  assumed  a  mortgage,  768. 
for  removal  of  fixtures,  453-455. 

1001 


INDEX. 

References  are  to  Sections. 

REMEDIES  —  continued. 

for  enforcing  a  mortgage,  1215-1236. 

are  concurrent,  72,  1215. 

creditor's  bill  may  be  maintained  at  same  time,  1217. 

personal  remedy  before  foreclosure,  1220. 

power  of  sale  need  not  be  first  exercised,  1221. 

suit  to  foreclose  and  suit  for  debt  at  same  time,  1222,  1224. 

rule  changed  by  statute  in  some  States,  1223. 

upon  express  covenant  in  mortgage,  1225. 

personal  liability  does  not  exist,  when,  1226. 

personal  remedy  after  foreclosure,  1227. 

suit  at  law  for  deficiency  after  sale,  1228. 

sale  of  mortgaged  premises  on  execution  for  same  debt,  1229. 

execution  for  same  debt  may  be  levied  on  other  property,  1230. 

as  affected  by  bankruptcy,  1231-1236. 

discharge  does  not  prevent  foreclosure,  1231. 

in  what  court  lien  may  be  enforced,  1232-1234. 
RENEWAL  of  note  does  not  affect  the  mortgage,  355. 

a  sufficient  consideration  for  a  mortgage,  611. 

should  be  alleged  in  bill  to  foreclose,  1468. 
RENTS  AND  PROFITS,  mortgagor's  right  to,  670,  771,  1120. 

after  entry  of  mortgagee,  671. 

mortgagee  before  entry  has  no  lien  upon,  772. 

mortgagee  in  possession  must  account  for,  1114—1120. 

what  chargeable  with,  1121-1125. 

accruing  at  time  of  foreclosure  sale,  1659. 
REPAIRS  by  mortgagee  in  possession,  allowances  for,  1126-1131. 
REPLEVIN  by  mortgagee  for  fixtures  removed,  453. 

for  timber  removed,  688. 
RESALE  under  decree  of  foreclosure,  1639,  1669. 
REVIVOR  of  mortgage,  043-949. 

cannot  be  had  to  prejudice  of  third  persons,  944. 

assignment  to  third  person  at  request  of  mortgagor,  945. 

redelivery  of  mortgage  note,  946. 

verbal  agreement  to  continue  for  another  debt,  947. 

as  against  other  parties  having  interests  in  the  property,  948. 

as  against  wife  when  she  is  surety,  949. 
RHODE  ISLAND,  nature  of  a  mortgage  in,  49. 

parol  evidence  to  show  a  mortgage,  313. 

usury  in,  633. 

entry  of  satisfaction  of  record,  1027. 

redemption  after  entry  to  foreclose,  1051,  1356. 

statute  of  limitations,  twenty  years,  1193. 

provisions  respecting  foreclosure  by  entry  and  possession,  1245. 
1002 


INDEX. 

References  are  to  Sections. 

RHODE   ISLAND  —  continued. 

ejectment  to  foreclose  mortgage,  1279. 

statutory  provisions  relating  to  foreclosure,  1356. 

power  of  sale  mortgages  and  trust  deeds  in,  1756. 
RIGHT  OF  ACTION,  when  it  accrues,  1174-1191. 

bill  to  foreclose  must  show  it  has  accrued,  1471. 
ROLLING  STOCK  of  railroads,  whether  fixtures,  452. 
ROYALTIES  from  mines,  when  mortgagee  entitled  to.  670  a. 

SALE  of  mortgage  at  discount  not  usury,  641. 

enforcement  of  against  the  purchaser.      (See  Fokeclosure  Sale.) 
Sale,  setting  aside  of.     (See  Foreclosure-  Sale,  1668-1681.) 
Sale  i)i  parcels,  under  decree  of  court,  1616-1619. 
required  in  Indiana,  1334,  «. 
may  be  required  by  statute  or  by  court,  1616. 
when  wishes  of  mortgagor  to  be  followed,  1617. 
when  property  may  be  sold  entire,  1618. 
sale  on  subsequent  default,  1619. 
Under  power  of  sale  mortgages  and  trust  deeds,  1857-1860. 
generally  no  obligation,  1857. 
under  statutes  and  in  case  of  special  equity,  1857. 
when  sale  of  property  entire  not  justified,  1858. 
when  trustee  should  sell  in  parcels,  1859. 
sale  of  sufficient  only  to  pay  debt,  1860. 
SANITY,  presumed,  103. 

SCIRE  FACIAS,  foreclosure  by  in  Colorado,  1325. 
in  Illinois,  1333. 
in  Pennsylvania,  1355. 
SEAL,  requisite  to  a  mortgage,  81. 
by  corporation  necessary,  128. 
provisions  of  the  several  States  regarding,  493. 
implies  consideration,  613. 
SERVICE,  by  publication  on  unknown  mortgagor,  1442^. 

want  of,  or  ineffectual,  1514. 
SET-OFF,  when  may  be  availed  of  in  foreclosure  suit,  1496-1498. 
SETTING  ASIDE  OF  SALE.     (See  Foreclosure  Sale.) 
SIGNING,  a  requisite,  81,  491. 

SIMULTANEOUS  MORTGAGES,  recording  acts  do  not  apply,  534. 
for  purchase-money,  535,  536. 
several  notes  secured  by  one  mortgage,  606. 
surplus  under,  1689. 
SOLICITOR'S  FEES.     (See  Attorney.) 
SOUTH  CAROLINA,  nature  of  mortgage  in,  50. 
parol  evidence  to  show  a  mortgage,  314. 

1003 


INDKX. 

Il*)fcirr)fic*)H  (ir«i  Jo  S«r«-tlonH. 
S()[  'I'll     CAItOIJXA        rontinucd. 
ijHiiiy  ill,  <).').';. 

;iHHi^iiinc.iit,  «jf  (l(;ht.  panscH  rriort,^!i;^o  in,  817. 
<;rit,iy  of  Hiitisfaf;t,ion  of  icconi,  1028. 
no  i(;(l<;iii[it.ion  afu-T  foreclosure,  1051,  1357. 
Hiiil.iit.c,  of  liinitat.ioiiH,  twenty  years,  llOo. 
Hl.atutory  jiroviHioriH  relating  (o  forecloKure,  l.';"*7. 
power  of  Hale.  niort;^a;^eH  and  trust  decids  in,  1757. 
S(  >(    I'll    DA  KOTA,  nature  of  a  mortgage  in,  45  a. 
foriii  of  mortgage,  f»l. 

parol  i^videnee  to  hIiow  a  mortgage,  .310  a. 
UHury  in,  033. 

entering  disdmrgo  of  reford,  1028  u. 
Htatute  of  limitatiouK,  tvvfttity  years,  I  193. 
statutory  provisions  ndating  to  foreclosure,  1352  a. 
power  of  sale  Tnortgag(!s  and  trust  deeds  in,  1752  a. 
STATIITK  OF   LIMITATIONS.     (See  Limitations,  Statutk  or.) 
STATUTORY    FORMS  of  mortgages,  61. 
STA'I'U'i'ORY   MORT(;A(iF,  what  is,  178, 
STAY  of  foreclosure  proeiiedings,  when  improperly  used,  1447. 

on  account  of  controversy  between  subsequent  incumbrancers,  IGOl. 
STRIOI'/'I',  mortgagor  cannot  dedicate  to  public  use,  070. 
STRK  'I'   T'ORl'lCLOSIIKF.     (See  Foukci.osuuk  without  Salk.) 
SUIUFCT-M  A'l  ri;i:  of  a  mortgftgc,  130-101. 
SITr.IiO(MTI()N  arises  iiy  opciralion  of  law,  when,  874. 

of  pundiaser  und(!r  a  void  fonidosure  sale,  874.  » 

appli(!S  generally  in  favor  of  one  pnying  a  debt  for  anotlKir,  874. 

of  stranger  to  intenist  of  a  mortgagee,  874  a. 

may  arise  by  agreement,  874  h. 

of  one  loaning  on  a  defeetivd  mortgagi!  to  discliargti  a  prior,  874  c. 

not  granted  as  a  reward  for  negligence,  874  d. 

test  of  the  rigbt,  870. 

mortgage  ])aid  by  one  not  under  obligation  to  pay  it,  877. 

not   all»)W(Ml  wIhmc   riglils    of  innocent   purchasers    have   intervened, 

H77  a. 
mortgagee  |>ayiiig  prior  incumbrance,  878,  1080,  1137. 
mortgagor  pnrchaHing  his  own  mortgage,  879. 
wiien  mortgage  is  (!iifoi(MMl  tipon  other  property,  880. 
indorser  or  surety  jinying  the  debt,  881. 
whore  surety  on  face  of  the  papers  appears  to  bo  principal  debtor, 

8KI  <t. 
whether  surety  subrogated  to  debt  as  w(^ll  as  security,  882. 
of  surely  to  seeniitios  given  subsequently,  883. 
of   priMei|>al  (M-editor  to  mortgage  given  (o  surety,  883  n. 
1001 


INDEX. 

Reference*  are  to  Sections. 

SUBROGATION  -  continvAd. 

when  creditor  has  made  farther  advances,  8^4. 

not  lost  by  renewal  of  mortgage,  885. 

lost  by  delay.  885  a. 

does  not  arise  upon  part  payment  of  a  debt,  885  b. 

when  secured  by  compelling  an  assignment,  1087. 

substitution  of  other  securities  for  mortgage.  927. 
SUNDAY;  validity  of  mortgage  executed  on,  623. 

agreement  for  extension  made  on,  1190. 
SUPPORT,  mortgage  for,  whether  strictly  a  mortgage,  388. 

when  mortgagor's  right  of  possession  implied.  389. 

alternative  condition  for,  390. 

where  to  be  furnished,  391. 

■vvho  may  perform  condition  for,  392. 

who  may  foreclose  mortgage  for,  393. 

agreement  for  arbitration  in  mortgage  for,  394. 

mortgage  for  may  be  redeemed,  395. 

performance  of  condition  for,  887. 

when  it  implies  the  mortgagor  may  remain  iu  possession,  668. 
SURETY,  wife  mortgaging  her  property  for  her  husband's  debt,  114. 

when  principal  creditor  is  entitled  to  security  given  to,  385. 

whether  he  may  release  security,  386. 

cannot  release  after  liability  is  fixed,  387. 

mortgagee  should  not  release  security  to  prejudice  of,  724. 

principal  creditor  entitled  to  security  to,  726. 

when  mortgagor  becomes,  as  to  purchaser,  741. 

relation  of,  does  not  affect  mortgagee,  742  a. 

paying  debt,  subrogated  to  security,  881. 
whether  subrogated  to  debt,  882. 
subrogated  to  securities  given  after  original  contract,  883. 

released  by  forbearance  of  debt,  942. 

may  redeem  mortgage,  1063. 

when  may  forecjose  mortgage  in  his  own  name,  1380. 

right  of  in  surplus  proceeds,  1706. 

enjoined  from  selling  under  power,  1805. 
SURPLUS,  from  foreclosure  sale  under  decree,  1684-1698. 

usually  paid  into  court,  1684. 

court  may  appoint  referee  to  settle  claims  to,  1685. 

exceptions  may  be  taken  on  filing  of  report,  1686. 

only  absolute  liens  considered,  1687. 

when  there  are  several  liens  on  the  premises,  1688. 

simultaneous  mortgages,  1689. 

mortgagee  may  make  claim  to,  1690. 

equities  of  subsequent  incumbrancers  of  part,  1691. 

100,3 


INDEX. 

References  are  to  Sections. 

SURPLUS  —  continued. 

prior  unrecorded  mortgage  preferred  to  judgment,  1692. 
dower  in  surplus,  1693,  1694. 
of  sale  made  after  death  of  mortgagor,  1695. 
lessee  for  years  not  entitled  to,  1696. 
attachment  of,  1697. 
upon  sale  under  junior  mortgage,  1698. 
holder  of  notes  not  due  not  entitled,  1705. 
From  sale  under  power,  1927-1939. 

deed  generally  provides  for  disposal  of,  1927. 

unproductive,  not  chargeable  with  interest,  1928. 

must  be  applied  according  to  title,  1929. 

notice  of  claims  to,  1930. 

whether  administrator  or  heir  entitled  to,  1931. 

in  case  of  bankruptcy,  1932. 

dower  in,  1933. 

when  equity  attached  or  sold  under  execution,  1934. 

judgment  lien,  1935. 

when  mortgagor  has  conveyed  part,  1935. 

from  sale  for  instalment,  1936,  1937,  1938. 

right  determined  by  suit  for  money  had  and  received,  1939. 

TACKING  other  debts  to  mortgage,  360. 

English  doctrine  of,  537,  1082. 
TAXES,  provision  for  payment  of,  77. 

are  generally  secured  by  mortgage,  358. 

on  mortgage  debt,  agreement  to  pay,  636. 

tax  title  acquired  by  mortgagor,  680. 
by  mortgagee,  713. 
when  a  trust,  714. 

mortgagee  paying  is  subrogated  to  lien  of,  1080. 

paid  by  mortgagee  allowed  in  account,  1134. 

failure  to  pay,  when  a  breach  of  the  condition,  1175. 
Payment  of  by  mortgagor  does  not  make  his  possession  hostile,  1200. 

decree  of  sale  sliould  include,  1597. 

when  an  incumbrance  which  excuses  from  completing  sale,  1649. 
TENANT  FOR  LIFE  may  make  a  mortgage,  137. 
TENANT  IN  COMMON,  of  partnership  real  estate,  119-123. 

joint  mortgagee  after  foreclosure  is,  135, 

mortgage  to  two,  to  secure  debt  to  one,  170,  704. 

mortgage  by,  141,  1314,  1630. 

partition  in  case  of  mortgage  of  one  parcel  held  in  common,  706. 

mortgaging  specific  part  of  common  property,  706  a. 

may  redeem,  1063. 
1006 


INDEX. 

References  are  to  Sections. 
TENANT  IN  COMMON  -  continued. 

parties  defendant  in  foreclosure  suit,  1409. 
order  of  sale  under  mortgage  by,  1 630. 
TENDER  before  and  after  default,  886-903. 

before  or  at  the  day  revests  the  estate,  891. 
but  the  debt  still  subsists,  891. 
though  a  gift  is  lost  with  the  estate,  891,  893. 
after  breach  does  not  amount  to  a  discharge,  892. 
rule  otherwise  in  some  States,  893. 
though  not  kept  good,  debt  discharged,  893. 
questions  as  to  sufficiency  of,  894. 
of  whole  debt  necessary,  894. 
who  make  make,  895. 

must  be  made  to  a  person  authorized  to  receive,  896. 
when  may  be  made  to  mortgagee  after  assignment  of  mortgage,  896. 
place  of  tender,  897. 
when  mortgagee  avoids  it,  897. 
may  be  made  at  any  time  of  day,  898. 
interest  ceases  to  run  from  the  time  of,  899. 
must  be  absolute  and  unconditional,  900. 
in  what  money  it  may  be  made,  901. 
in  legal  tender  notes  of  the  United  States,  901. 
must  cover  costs,  901. 
costs  incurred  by  refusal  of,  902,  1113. 
for  purpose  of  redemption,  1088. 

what  is  sufficient,  1088. 
should  be  made  in  bill  to  redeem,  1095. 
not  accepted  does  not  prevent  foreclosure,  1450. 
after  breach  does  not  defeat  power  of  sale,  1793. 
otherwise  held,  where,  1794. 
TENNESSEE,  nature  of  a  mortgage  in,  51. 
form  of  mortgage,  61. 
written  authority  to  fill  blanks,  90. 
parol  evidence  to  show  a  mortgage,  315. 
usury  in,  633. 

entry  of  satisfaction  of  record,  1029. 
redemption  after  foreclosure,  1051,  1358. 
statute  of  liniilutions  does  not  apply  to  redemption  in,  1148. 
statute  of  limitations,  seven  years,  1193. 
statutory  provisions  relating  to  foreclosure,  1358. 
strict  foreclosure  in,  1554. 

power  of  sale  mortgages  and  trust  deeds  in,  1758. 
Tli:RMS  OF  SALE  under  decree  of  foreclosure,  1613-1615. 

1007 


INDEX. 


References  are  to  Sections. 


TEXAS,  nature  of  a  mortgage  in,  52. 

mortgage  of  homestead  void,  83  a. 

parol  evideuce  to  show  a  mortgage,  316. 

usury  in,  663. 

assignment  of  debt  passes  mortgage  in,  817. 

entry  of  satisfaction  of  record,  1030. 

no  redemption  after  foreclosure,  1051,  1359. 

statute  of  limitations,  ten  years,  1193. 

mortgage  barred  when  debt  barred,  1207. 

statutory  provisions  relating  to  foreclosure,  1359. 

power  of  sale  mortgages  and  trust  deeds,  1759. 
TIMBER,  mortgagor's  right  to  cut,  692. 
TITLE  BOND,  legal  effect  of,  226. 

may  be  foreclosed  as  a  mortgage,  1449. 

a  strict  foreclosure  proper,  1541. 
TITLE  DEP:D,  mortgage  by  deposit  of,  179. 

doctrine  in  England,  180. 

legal  effect  of  the  deposit,  181. 

omission  of  part  of  the  deeds,  182. 

presumption  of  purpose  of  deposit,  183. 

law  of  place  of  contract  governs  deposit,  184. 

American  doctrine,  185,  186. 

memorandum  of  deposit,  187. 

how  such  mortgage  is  enforced,  188. 

for  security  of  grantor's  creditors  foreclosed  in  equity,  1448. 
TREES  in  nursery,  whether  part  of  realty,  434. 
TRESPASS,  mortgagor  cannot  maintain  against  mortgagee,  674. 

mortgagee  may  maintain  for  mesne  profits,  721. 

against  mortgagor  for  waste,  687,  696. 
TRUST,  distinguished  from  mortgage,  281,  332. 

notice  of  a  secret,  577. 

parol,  does  not  attach  to  mortgage,  846. 
TRUST  DEED.     (See  Deed  of  Trust.) 

TRUSTEE  PROCESS,  mortgagor  may  be  held  to  answer  to,  938. 
TRUSTEES,  mortgages  by,  102. 

one  of  several  cannot  assign,  795. 

when  one  may  receive  payment,  959. 

foreclosure  suit  by  nominal,  1383,  1384. 

for  creditors  may  maintain  foreclosure  suit,  1386. 

when  proper  party  to  foreclosure  suit,  1399. 

UNDUE  INFLUENCE,  103. 

USE  AND  OCCUPATION,  whether  mortgagor  liable  for,  671. 
USURY,  as  affecting  mortgages,  633-663. 
1008 


s 


INDEX. 

References  are  to  Sections. 
USURY  —  continued. 

intent  to  take,  634. 

whether  payment  of  attorney's  fees  constitutes,  635. 
whether  payment  of  taxes  on  debt  constitutes,  636. 
whether  payment  of  exchange  constitutes,  637. 
whether  payment  of  fines,  etc.,  constitutes,  638. 
whether  agreement  for  repurchase  is,  639,  640. 
.  sale  of  land  as  a  device  to  cover  usury,  639. 
whether  sale  of  mortgage  constitutes,  641. 
taken  by  agent,  642. 

when  agent  is  lender's  general  agent,  642  a. 
when  broker  is  not  the  agent  of  lender,  642  h. 
burden  of  proof,  643. 
who  may  set  up  defence  of,  644. 
voluntary  payment  destroys  claim  of  usury,  644. 
mortgagor  estopped  by  certificate  of  validity,  645,  1495. 
cannot  be  set  up  after  foreclosure,  646. 
bonus  paid  to  secure  extension,  647,  648. 
when  it  avoids  agreement  for  extension,  649. 
Compound  interest,  whether  it  constitutes,  650. 

while  agreement  for  is  executory,  651. 

accrued  interest  a  debt,  652. 

taking  interest  in  advance,  652  a. 

interest  coupons,  653. 

computation  of  interest,  654. 
Conjlict  of  laws  as  to,  656-663. 
what  law  governs,  657. 
laws  of  another  State  not  implied,  658. 
when  law  of  place  of  contract  prevails,  659. 
contract  made  in  one  State  to  be  performed  in  another,  659  a. 
lex  rei  sitce  does  not  control,  660. 

effect  of,  661. 

governs  as  to  title,  661. 

governs  form  and  validity,  662. 
laws  of  another  State  must  be  pleaded,  663. 
cannot  be  set  up  by  purchaser  who  has  assumed  mortgage,  745. 
in  assignment  of  mortgage,  832. 
no  ground  for  redemption  after  sale,  1105. 
defence  to  foreclosure,  1300,  1493,  1499. 
purchaser  subject  to  mortgage  cannot  set  up,  1494. 
previously  paid  may  be  offset,  1499. 
as  ground  for  enjoining  sale  under  power,  1808,  1809. 
UTAH  T.,  nature  of  a  mortgage  in,  53. 

parol  evidence  to  show  a  mortgage,  316  a. 

VOL.  II.  64  1009 


INDEX. 

References  are  to  Sections. 

UTAH  T.,  —  continued. 
usury  in,  633. 

entry  of  satisfaction  of  record,  1031. 
statutory  provisions  relating  to  foreclosure,  1360. 

VADIUM,  mortuum  and  vivum,  2,  4. 
VENDOR'S  LIEN,  189. 
VENUE  of  suits  to  foreclose  mortgages,  1444. 
VERMONT,  nature  of  a  mortgage  in,  54. 

parol  evidence  to  show  a  mortgage,  317. 
rule  as  to  fixtures  in,  442. 
statutory  provisions  as  to  fixtures,  443. 
usury  in,  633. 

entry  of  satisfaction  of  record,  1033. 
redemption  after  foreclosure,  1051,  1361. 
statute  of  limitations,  fifteen  years,  1193. 
statutory  provisions  relating  to  foreclosure,  1361. 
strict  foreclosure  is  the  form  in  use,  1555. 
power  of  sale  mortgages  and  trust  deeds  in,  1760. 
VIRGINIA,  nature  of  a  mortgage  in,  55. 
■written  authority  to  fill  blanks,  90. 
parol  evidence  to  show  a  mortgage,  318. 
usury  in,  633. 

entry  of  satisfaction  of  record,  1032. 
no  redemption  after  foreclosure,  1051,  1362. 
statute  of  limitations,  fifteen  years,  1193. 
statutory  provisions  relating  to  foreclosure,  1362. 
power  of  sale  mortgages  and  trust  deeds  in,  1761. 
VIVUM  VADIUM,  2. 

VOID  AND  VOIDABLE  MORTGAGES,  610-632. 
for  want  of  consideration,  610,  612. 

not  necessary  that  consideration  pass  at  the  time,  611. 
mortgage  by  way  of  gift,  614. 
mortgage  for  accommodation,  615. 
for  illegality  of  consideration,  617. 
as  contrary  to  public  policy,  618. 
who  may  take  advantage  of  illegality,  619. 
gaming  contracts,  619. 

when  illegal  consideration  can  be  separated,  620. 
mortgage  may  be  valid  in  part,  621. 
burden  of  proof,  622. 
executed  on  Sunday,  623. 
debt  contracted  on  Sunday,  623. 
for  fraud  on  part  of  mortgagee,  624. 
1010 


INDEX. 

References  are  to  Sections. 
VOID  AND  VOIDABLE  MORTGAGES  -  continued. 

fraudulent  intent,  625. 
mortgage  obtained  by  duress  is,  626. 
mortgage  made  to  defraud  creditors,  627. 
fraud  as  to  a  particular  creditor,  628. 
for  fraudulent  preference,  629. 
who  may  take  advantage  of,  630. 
when  mortgagor  estopped  to  claim  invalidity,  631. 

or  that  the  mortgage  was  made  to  defraud  creditor,  632. 

WAIVER,  of  vendor's  lien,  207-210. 

of  lien  by  contract,  232. 

of  default  of  credit,  1186. 

of  entry  and  foreclosure,  1265-1275. 

made  conditionally,  1272. 

of  strict  foreclosure,  1569,  1570. 

of  power  of  sale,  1792-1800. 

of  sale  made  under  power,  1906-1922. 
WASHINGTON,  nature  of  a  mortgage  in,  55  a. 

usury  in,  633. 

entry  of  satisfaction  of  record,  1034. 

statutory  provisions  relating  to  foreclosure,  1363. 
WASTE  by  stranger,  mortgagor  may  recover  for,  664. 

mortgagee  may  recover  for,  695  a. 
By  mortgagor,  684—698. 

may  be  restrained  by  injunction,  684. 

removal  of  timber  already  cut,  685. 

no  obligation  on  part  of  mortgagee  to  enjoin,  686. 

mortgagee  may  maintain  trespass  for,  687. 

mortgagee  may  maintain  replevin  for,  688. 

liability  of  purchaser  of  timber,  689. 

by  mortgagee  in  possession,  1123  a. 
WELSH  MORTGAGE,  3. 

mortgagee's  possession  does  not  bar  redemption,  1153. 
WEST  VIRGINIA,  nature  of  a  mortgage  in,  56. 

parol  evidence  to  show  a  mortgage,  319. 

usury  in,  633. 

entry  of  satisfaction  of  record,  1035. 

no  redemption  after  foreclosure,  1051,  1364. 

statute  of  limitations,  ten  years,  1193. 

statutory  provisions  relating  to  foreclosure,  1364. 

power  of  sale  mortgages  and  trust  deeds  in,  1762. 
WIFE,  not  bound  by  additions  or  blanks  filled  without  consent,  91,  95. 

owning  mortgage  should  sue  alone,  1393. 

1011 


INDEX. 

References  are  to  Sections. 

WIFE  —  continued. 

of  mortgagor  when  made  a  party  to  foreclosure  suit,  1420-1422. 
WISCONSIN,  nature  of  a  mortgage  in,  57. 

deed  of  trust  not  allowed  in,  62. 

authority  to  fill  blanks,  90. 

parol  evidence  to  show  a  mortgage,  320. 

record  of  assignment  not  notice  to  mortgagor,  539. 

usury  in,  633. 

entry  of  satisfaction  of  record,  1036. 

no  redemption  after  foreclosure,  1051,  1365. 

redemption  barred  in  ten  years  in,  1147. 

statute  of  limitations,  twenty  years,  1193. 

statutory  provisions  relating  to  foreclosure,  1365. 

strict  foreclosure  in,  1556. 

power  of  sale  mortgages  and  trust  deeds  in,  1763. 
WITNESSES,  requirements  as  to,  82,  532. 
WOOD,  growing,  subject  of  mortgage,  145. 

mortgagor  may  cut  for  his  fires,  694. 
WRIT  OF  ASSISTANCE,  1663. 
AVRIT  OF  ENTRY,  mortgagee  may  recover  possession  by,  718. 

(See  Foreclosure  by,  1276-1316.) 
WYOMING,  record  of  assignment  not  notice  to  mortgagor,  473. 

usury  in,  633. 

entry  of  satisfaction  of  record,  1037. 

statute  of  limitations,  twenty-one  years,  1193. 

statutory  provisions  relating  to  foreclosure,  1366. 
1012 


standard  Law  Books. 

BY  LEONARD  A.  JONES,  ESQ. 

NEW  EDITIONS  OF  THE  FOLLOWING  HA  VE  JUST  BEEN  ISSUED. 

Mortgages  of  Real  Property.  {Fi/ik.) 
Chattel  Mortgages.  {Fotcr/L) 

Liens.       (Second.) 

Forms  in  Conveyancing.    (Fourth.) 

This  writer,  by  a  learning  and  diligence  which  are  greatly  to  be  commended,  has  built  up 
a  most  valuable  series  -of  works  on  the  American  law  of  property.  He  has  treated  in  suc- 
cession of  the  Law  of  Mortgages  of  Real  Property,  of  the  Law'  of  Mortgages  of  Personal 
Property,  and  of  the  Law  of  Pledges,  and  of  the  Law  of  Liens,  Common  Law,  Statutory, 
Equitable,  and  Maritime.  He  has  also  given  the  profession  a  valuable  work  on  Forms  in 
Conveyancing,  drawn  from  the  researches  which  became  necessary  in  the  preparation  of  the 
works  above  recited.  His  present  work  on  "  Corporate  Bonds  and  Mortgages  "  is  a  worthy 
companion  to  the  others.  The  profession  are  greatly  indebted  to  him  for  these  accurate  and 
labor-saving  works.  They  enjoy  a  high  reputation.  Perhaps  the  most  flattering  encomium 
which  we  have  heard  passed  upon  them  has  come  from  an  unpretentious  though  trustworthy 
source,  —  from  the  lips  of  the  so-called  "  law-book  men."  The  writer  has  heard  several  of  the 
"  traveling  men  "  of  the  law-book  houses  say  that  it  is  very  easy  to  sell  Mr.  Jones's  works.  He 
has  founded  such  a  reputation  that  the  profession  are  ready  to  believe  that  nothing  which  is 
not  well  done  will  be  allowed  to  come  from  his  pen.  —  Hon.  Seymour  D.  Thompson, /« 
The  American  Law  Re-^iew  for  March-April,  1890. 


Jones  on  Mortgages. 

A  Treatise  on  the  Law  of  Mortgages  of  Real  Property.  By 
Leonard  A.  Jones.  Fifth  Edition,  1894,  revised  and  enlarged. 
Vol.  I.,  pp.  xvi-f-967.  Vol.  IL,  pp.  vi-fiooo.  2  vols.  8vo, 
sheep,  $12.00,  net. 

'T'HE  fifth  edition  has  been  thoroughly  revised  and  reprinted  throughout. 
*  It  contains  citations  of  about  four  thousand  new  cases.  As  compared 
with  the  original  work,  it  contains  citations  of  twice  the  number  of  cases 
contained  in  that,  with  several  hundred  pages  of  new  matter.  The  size  of  the 
page  in  this  edition  has  been  enlarged,  the  notes  printed  in  smaller  type,  and 
all  sections  treating  of  Liens  omitted;  and  yet  the  number  of  pages  of  this 
edition  has  increased  to  about  2000. 

Jones  on  Chattel  Mortgages. 

A  Treatise  on  the  Law  of  Mortgages  of  Personal  Property. 
Fourth   Edition,   1894,  enlarged  by  66  pages  and  800  additional 


cases,  containing  200  pages  and   2000  cases  more  than  the  first 
edition.     By  Leonard  A.  Jones.     8vo,  sheep,  $6.00,  net 

npHIS  work  has  been  revised  in  the  present  edition  by  incorporating  into 
*  the  text  and  notes  the  new  decisions  that  have  been  pubHshed  since  the 
second  edition  was  prepared.  The  book  has  thus  been  enlarged  by  the  ad- 
dition of  some  sixty  pages  of  new  matter.  Most  of  this  has  been  wrought 
into  the  sections  as  they  were  originally  formed,  which  retain  the  same  num- 
bers; ajjd  only  a  few  wholly  new  sections  have  been  written  for  the  treatment 
of  new  subjects.  Almost  every  section  has  received  some  addition,  either  in 
the  text  or  in  the  notes.  The  number  of  cases  cited  has  been  increased  by 
eight  hundred. 

Jones  on   Pledges. 

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ties. By  Leonard  A.  Jones.  8vo,  sheep,  pp.  xxxvi-|-6oi,  $6.00, 
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Jones  on  Corporate  Bonds  and 
Mortgages, 

A  Treatise  on  the  Law  of  Corporate  Bonds  and  Mortgages. 
Being  the  Second  edition  of  "Railroad  Securities,"  revised.  By 
Leonard  A.  Jones,  Esq.     8vo,  pp.  xvi  -\-  664,  sheep,  $6.00,  net. 

Jones  on  Liens. 

A  Treatise  on  the  Law  of  Liens,  Common  Law,  Statutory, 
Equitable,  and  Maritime.  By  Leonard  A.  Jones,  Esq.  Second 
Edition,  1894,  revised  and  enlarged  ;  1,200  cases  being  added  to  the 
part  relating  to  Mechanics'  Liens  alone.  2  vols.,  8vo,  sheep,  $12.00, 
net. 

From  Prefaces  to  First  and  Second  Editions. 

npHE  cases  coming  within  the  province  of  this  treatise  decided  within  the 
*■  last  five  years  have  been  incorporated  into  the  text  and  notes  of  this 
edition.  Much  new  matter  has  thus  been  added ;  but  by  changes  in  type 
and  size  of  the  pages,  by  omitting  spaces  between  the  sections,  and  by  sub- 
stituting in  some  instances  references  to  statutes  in  place  of  statements  of 
their  substance,  the  size  of  the  volumes  has  not  been  materially  increased. 

Important  changes  and  additions  have  been  made  in  that  part  of  the  work 
relating  to  Mechanics'  Liens.  In  this  part  alone  there  are  about  a  hundred 
pages  of  new  matter,  and  the  number  of  citations  added  is  more  than  twelve 
hundred. 


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